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Aërial Law and War Targets

Published online by Cambridge University Press:  04 May 2017

Elbridge Colby
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Extract

Since international law is largely based upon custom, prevalent custom is more likely to evidence the real change than are formal documents. No more striking example of this effect of growing sentiment upon law can be cited than the successive pronouncements of John Marshall regarding the status of enemy property on land in time of war.1 In 1796 he appeared for the State of Virginia in the case of Ware v. Hylton (3 Dallas, 199), and argued that by the law of nations confiscation was justifiable. In 1814, deciding from the bench of the Supreme Court the case of Brown v. United States (8 Cranch, 110), he declared that though the old rigid rule would allow confiscation, prevailing current practice forbade and no nation could sanction confiscation “without obloquy.” In the Percheman case (7 Peters, 51), twenty years later, he announced that the confiscation of private property was contrary to the modern usage of nations “which has become law.”

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 4 , October 1925 , pp. 702 - 715
Copyright
Copyright © by the American Society of International Law 1925

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References

1 Moore's International Law Digest, Vol. VII, pp. 310–313.Google Scholar

2 Hazeltine, H. D., Law of the Air, p. 66, Kuhn, “Beginnings of an Agrial Law,” this Journal, Vol. IV, pp. 122–128.Google Scholar

3 Callwell, C. E., Stray Recollections, Vol. II, p. 247.Google Scholar

4 Aerial Bombardment Manual, U. S. Army, Part I, p. 8;Google Scholar Abbott, G. F., The Holy War in Tripoli, pp. 290–294.Google Scholar The airplanes operating into Mexico with the Pershing expedition of 1916 carried principally messages and mails, and were at any rate so utterly inadequate for any military purposes as to raise no question. Hearings on War Expenditures, House Committee (Graham Committee), U. S. Congress, 1921, ser. 2, Vol. I, pp. 4, 5, 365.Google Scholar

5 Hazeltine, op. cit., p. 122;Google Scholar Holland, T. E., Letters upon War and Neutrality, 3rd ed., pp. 67–68;Google Scholar Garner,, J. W., “Proposed Rules for the Regulation of Aerial Warfare,” this Journal, Vol. XVIII, p. 56.Google Scholar

6 Davis, G. B., “Launching of Projectiles from Balloons,” this Journal, Vol. II, p. 528.Google Scholar

7 War on Land, 1908, Art. 80, note.Google Scholar

8 Land Warfare, 1910, Art. 118;Google Scholar Manual of Military Law (British), 1914, p. 253.Google Scholar

9 Hazeltine, op. cit., pp. 117, 123.Google Scholar

10 Letters on War and Neutrality, 3rd. ed., p. 67.Google Scholar It is to be noted that the first and only time Bagdad was bombed from the air after its capture by the British, the occupying forces had long had'' a system of defense worked out, and anti-aircraft guns were situated at various points to cooperate with the searchlights of the gunboats.” Tennant, J. E., In the Clouds above Bagdad, p. 249.Google Scholar

11 Rules of Land Warfare, U. S. Army, 1914, p. 67, par. 214;Google Scholar Manual of Military Law (British), 1914, p. 253, par. 119,123.Google Scholar

12 Westlake, J., International Law, Vol. II, p. 77.Google Scholar

13 Gamer, J. W., loe. cit., p. 70.Google Scholar This point of view was informally advanced by others prior to 1914. Mr. Garner, writing in 1924, expressed it in order to condemn “defense” as a criterion.

14 Foch, F., The Principles of War, tr. Belloc, p. 14.Google Scholar

15 Concerning the instances referred to, see Turner, C. C, The Struggle in the Air, pp. 40, 140–141, and Sweetser, A., The American Air Service, pp. 317, 333.Google Scholar

16 G. H. Q., A. E. F., Summary of Air Information, November 6, 1918.

17 This shelling was condemned “on account of the misery caused to non-combatants,” but at Brussels, General Voigts-Rhetz was utterly opposed to admitting the illegality of the practice, and there is little reason to suppose a different view will be taken in the future in view of its effectiveness. Bordwell, P., Law of War, pp. 89–90.Google Scholar

18 Current History Magazine, August, 1922, Vol. XVI, p. 828.Google Scholar

19 Fuller, J. F. C, The Transformation of War, p. 186.Google Scholar

20 Manual of Anti-Aircraft Defense (British), 1922, p. 2.Google Scholar

21 Quoted in the New York Herald, March 5, 1924.

22 Dwight F. Davis, speech at Baltimore, Md., March 18, 1924, U. S. War Department press release. The idea is reiterated by Brigadier-General William Mitchell in The Saturday Evening Post, Dec. 20, 1924, p. 4.Google Scholar

23 Spaight, J. M., “Air Bombardment,” in British Year Book of International Law, 1923–1924, p. 22–25.Google Scholar

24 In view of this we cannot accept as true the following statement of fact in a British instruction manual: “Attack from the air by a hostile power . . . may be made upon . . . important cities and other vulnerable points at home and abroad, the defenses of which might be of a permanent nature.” Manual of Anti-Aircraft Defense (British), 1922, p. 1.Google Scholar The final clause is misleading and unsound.

25 Turner, C. C, op. cit., p. 163.Google Scholar Similar variant belligerent interpretations of the effect of airplane bombing arose when that mode of fighting first began, during the Italian campaign in Tripoli. Abbott, G. F., op. cit., p. 291.Google Scholar

26 War Department press release, Nov. 29, 1924.

27 Aerial Bombardment Manual, U. S. Army (1920), Part I, p. 8.Google Scholar

28 Garner, J. W., loc. cit, p. 69.Google Scholar

29 I am unable to subscribe to the “unusual degree of disgust and hatred” felt by one writer toward an enemy for using such a method of attack, which, “although aimed at a city containing troops, munitions factories, and military depots, must inevitably fall almost entirely upon civilians.” Turner, C. C, op. cit., p. 144.Google Scholar

30 The New York Times, March 15, 1923, p. 9b.Google Scholar

31 British Parliamentary Papers, East India, 1919, Vol. XXXVII, pp. 11–32.Google Scholar

32 Manual of Military Law (British), 1914, p. 235, par.'7. In 1815, James Monroe declared it perfectly proper for General Harrison to have burned Indian huts and cabins in 1813, saying: “This species of warfare has been pursued by every nation engaged in war with the Indians on the American continent.”Google Scholar Niles Weekly Register, March 18, 1815, Vol. VIII, pp. 35–36.Google Scholar

33 See on this point, John Bassett Moore's review of Hyde's International Law in the Columbia Law Review, Vol. XVIII, p. 83, a constructive review that is an excellent guide to proper interpretation of the “lessons” of the World War, sadly too brief, and yet since supplemented by the same writer's book on International Law and Some Current Illusions.Google Scholar

34 Nippold, O., Development of International Law after the World War, tr. A. S. Hershey, p. 144.Google Scholar

35 The Times (London), August 30, 1922, p. 7e.Google Scholar

36 Birkhimer, W. E., Military Government and Martial Law, 1st ed., p. 196.Google Scholar

37 Garner, J. W., loc. cit, p. 66.Google Scholar

38 Supplement to the Jotthnal, Vol. XVII, p. 250.Google Scholar See article on these regulations by Rear Admiral Wm. L. Rodgers, in the Journal, Vol. XVII, pp. 629, 640, and chapter in Moore, J. B., International Law and Some Current Illusions.Google Scholar

39 Garner, J. W., loc. cit, p. 74.Google Scholar

40 Variant opinions as to the utility of aircraft in future war may be found in “Aeroplanes in Future Warfare,” by Capt. McA. Hogg, R.E., in Army Quarterly, October, 1924, Vol. XI, pp. 98–107;Google Scholar and series of articles in The Saturday Evening Post by Brig. Gen. Wm. Mitchell, Dec. 20, 1924, Jan. 10, 1925, Jan. 24, 1925, and March 14, 1925.

41 Transactions of the Grotius Society (1922), Vol. VIII, p. xxii.Google Scholar

42 Spaight, J. M., loc. cit, p. 32.Google Scholar