XXXIII While a number of proposals for an embargo upon arms were CHAP. made in Congress, the Department of State took the position that it would not recognize an obligation to change or modify the rules of international usage to meet the special conditions which deprived the Central Powers of access to the American markets. Moreover, the United States was opposed in principle to the prohibition of the trade in arms and munitions between belligerents and neutrals, on the ground that such prohibition would put at a disadvantage the state which, from pacific motives, had neglected to obtain adequate supplies in advance of an attack upon it.1 'Note of August 12, 1915. Am. White Book, II, 194. a. Air-ships legitimate combatants Bombardment by air-ships CHAPTER XXXIV AERIAL WARFARE Aërial warfare had been of too recent development in 1914 to admit of the growth of a customary law upon the subject. Nor had the efforts of the states more directly concerned been successful in the formulation and adoption of a conventional law of the air. Such provisions of the conventions of the Hague Conference of 1907 as were applicable in 1914 either had not been ratified by the signatory powers or were framed too vaguely to constitute an effective regulation. There remained only the general principles of the law of war, together with analogous rules of land and maritime warfare, from which inferences might be drawn by belligerents and neutrals to meet the new conditions presented. 1 As between the belligerents themselves, there was no question at the outbreak of the World War as to the legitimate character of air-ships as instruments of war. The earlier uses of balloons as vantage-points of observation and means of escape from besieged cities were now supplemented by the aeroplane as a direct instrument of combat. Battle between enemy aëroplanes followed the rules governing battles on land or at sea. The crews of defeated planes which fell upon enemy soil obtained the usual treatment accorded to prisoners of war. But if air-ships themselves were legitimate combatants, the methods of warfare employed by them were open to controversy. How far were bombardments from the air legitimate? The Hague Conference of 1899 had adopted a declaration by which the contracting parties agreed to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, "or by other new methods of similar nature.' The declaration was renewed in 1907, but in view of the rapid progress that had been made in the building of air-ships the declaration was not ratified, even by the limited number of signatory powers. Provision was, how 1 For the threat of Bismarck in 1870 to treat balloonists as spies, see Hall, International Law, § 188. For the text, see Higgins, Hague Peace Conferences, 484; Hague Conventions, 220. XXXIV ever, made that air-ships should, in respect to their use for pur- CHAP. poses of bombardment, be brought under the provisions of the Hague convention relating to war on land. This was done by amending the earlier article to read: "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."'1 During the World War "aërial raids" were of frequent occur- Aërial raids rence. These raids were at first justified on the part of Germany on the ground that the towns and cities against which they were directed, while "undefended" in the sense of being unfortified, were centers for the assembling and distribution of troops, and for the manufacture of munitions of war. The objectives of the raids were chiefly railway terminals and munition factories. Subsequently the raids were directed against the population at large, with the object of intimidation by way of reprisal for the alleged illegal blockade of Germany. On the part of the Allied Powers the earlier raids had semi-military objects in view; but later raids, though fewer in number, were, like the German raids, directed against the population indiscriminately by way of reprisal against the German reprisals.3 As between belligerents and neutral states, the chief issue during the World War involved the territorial sovereignty of the neutral over the air space above the national domain. Was there a right of innocent passage for belligerent air-ships through neutral air spaces similar to the right of innocent passage through neutral territorial waters? The question had been debated before 1914,* but upon the outbreak of war Holland, as a neutral state, promptly announced that the use of the air space over Dutch territory would be considered a violation of its neutrality, and that resistance would be offered by it to the passage of belligerent air-ships. Consistently with this position, the Dutch Government not only fired upon belligerent air-ships invading the national air space, but was careful to intern the officers and crew of belligerent planes which were forced to descend upon Dutch territory. This interpretation of neutral rights denied an analogy between the innocent passage of belligerent warships through neutral territorial waters 1 Regulations, Art. 25. See above, p. 475. This argument had been advanced before 1914, e.g., by Spaight, Aircraft in War, 11-21. For details of the raids and for a discussion of their legal aspects, see Garner, op. cit., I, Chap. XIX. See above, p. 286. b. Neutral territorial rights CHAP. Character of hydroaeroplanes c. Draft code of aerial warfare and the innocent passage of belligerent air-ships through neutral air spaces. Moreover, Holland and other neutral states refused to concede to belligerent air-ships a privilege of temporary sojourn upon neutral soil corresponding to the twenty-four-hour rule applied to belligerent warships in neutral ports. In consequence, belligerent air-ships which were forced from stress of weather or from military reasons to descend upon Dutch soil were, together with their crews, interned for the duration of the war. Denmark appears to have had a similar conception of neutral duty, whereas Norway appears to have regarded shipwrecked aviators as in the class of shipwrecked sailors not subject to detention. The question was raised between the United States and Germany whether hydro-aeroplanes were to be regarded as warships, which by customary law, as well as by the provisions of the Thirteenth Hague Convention, a neutral state is bound to prevent from being fitted out or armed within its jurisdiction when intended to be put at the service of one or other of the belligerents. In reply to a protest of the German Government against the delivery of hydro-aeroplanes by American builders to Great Britain and Russia, the American Government stated, January 29, 1915, that that fact that such planes were "fitted with apparatus to rise from and alight upon the sea" did not give them the character of vessels so as to bring them within the accepted rules of international law.' Consequently, the planes were no more than conditional contraband of war, which might be freely sold by neutral citizens to the belligerents. An elaborate code of aërial warfare was prepared by a commission of jurists which met at the Hague in 1922-23 in pursuance of a resolution adopted at the Washington Conference on February 4, 1922. Articles 1-10 of the proposed code deal with the classification and marks of aircraft and lay down rules which, with respect to their object, may be compared to the rules of maritime warfare in respect to national flags and the conversion of merchant ships into warships. Articles 11-12 lay down the general principle See above, p. 564. 2 Am. White Book, II, 145. The code appears as Part II of the "General Report of the Conmission of Jurists at the Hague." For the text, see Am. Journal, XVII (1923), Supp., 245. For comment, W. L. Rodgers, "The Laws of War Concerning Aviation and Radio," ibid., XVII, 629; J. W. Garner, "Proposed Rules for the Regulation of Aerial Warfare," ibid., XVIII (1924), 56-81, where the provisions of the code are examined in detail and controversial points critically discussed. XXXIV of the right of both neutral and belligerent states in time of war CHAP to forbid or to regulate the entrance of aircraft within their jurisdiction. Articles 13-17 parallel the rules of land and maritime warfare with respect to lawful combatants. Articles 18-29 relate to the instruments and methods of aërial warfare, special attention being given to bombardment, the rules of which follow the established rules with respect to land and naval bombardment. Bombardment as a means of intimidating the civilian population is expressly prohibited. Succeeding articles deal with the authority of a military commander over enemy and neutral aircraft, with the respective duties of belligerents toward neutrals and neutrals toward belligerents, and with visit and search, capture and condemnation.1 The student should compare the recommendations of the jurists' report with the provisions of the Aërial Navigation Convention of 1919, above, p. 288. |