While in early days it was a maxim that "all was fair in war," this has long since ceased to be the case, and the use of certain instruments or means of injuring the enemy is positively prohibited. Means of warfare which are new or mysterious have often been prohibited or looked upon with disfavor for a period. Maine says: "One of the most curious passages of the history of armament is the strong detestation which certain inventions of warlike implements have in all centuries provoked, and the repeated attempts to throw them out of use by denying quarter to the soldiers who use them. The most unpopular and detested of weapons was once the crossbow, which was really a very ingenious scientific invention. The crossbow had an anathema put on it, in 1139, by the Lateran Council, which anathematized artem illam mortifera et Deo odibilem. The anathema was not without effect. Many princes ceased to give the crossbow to their soldiers, and it is said that our Richard I revived its use with the result that his death by a crossbow bolt was regarded by a great part of Europe as a judgment. It seems quite certain that the condemnation of the weapon by the Lateran Council had much to do with the continued English employment of the older weapon, the longbow, and thus the English successes in the war with France. But both crossbow and longbow were before long driven out of employment by the musket, which is in reality a smaller and much improved form of the cannon that at an earlier date were used against fortified walls. During two or three centuries all musketeers were most severely, and as we should now think most unjustly, treated. The Chevalier Bayard thanked God in his last days that he had ordered all musketeers who fell into his hands to be slain without mercy. He states expressly that he held the introduction of firearms to be an unfair innovation on the rules of lawful war. Red-hot shot was also at first objected to, but it was long doubtful whether infantry soldiers carrying the musket were entitled to quarter. Marshal Mont Luc, who has left Memoirs behind him, expressly declares that it was the usage of his day that no musketeer should be spared." •

Nys, Les Origines du Droit Int. p. 192.

• Maine, Int. Law, p. 183.

(a) The use of poisoned weapons is generally prohibited. The use of arms or projectiles which cause unnecessary suffering is also prohibited. Such projectiles as copper bullets, or explosive or expanding bullets, are of this class. Barbed bayonets, lances with detachable heads, etc., are regarded as instruments causing unnecessary suffering."

(b) The use of poison, the launching of projectiles from balloons, and the use of certain submarine mines and torpedoes is contrary to conventional agreements.R

A declaration which has been signed by all the states represented at the First Hague Peace Conference except the United States is to the effect that "the contracting powers agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases." Captain (Admiral) Mahan explains the opposition to the declaration by the United States representatives as follows:

"As a certain disposition has been observed to attach odium to the view adopted by this commission in this matter, it seems proper to state, fully and explicitly, for the information of the government, that on the first occasion of the subject arising in subcommittee, and subsequently at various times in full committee and before the conference, the United States naval delegate did not cast his vote silently, but gave the reasons, which at his demand were inserted in the reports of the day's proceedings. These reasons were, briefly: (1) That no shell emitting such gases is as yet in practical use, or has undergone adequate experiment, consequently a vote taken now would be taken in ignorance of the facts as to whether the results would be of a decisive character, or whether injury in excess of that necessary to attain the end of warfare-the immediate disabling of the enemy-would be inflicted. (2) That the reproach of cruelty and perfidy, addressed against these supposed shells, was equally uttered formerly against firearms and torpedoes, both of which are now employed without scruple. Until we knew the effects of such asphyxiating

541.

Laws and Customs of War on Land, article XXIII. Appendix, p.

8 Id.; Discharge of Projectiles and Explosives from Balloons, post, p. 326; Submarine Contact Mines, post, p. 324.

WILS. INT. L.-21

shells, there was no saying whether they would be more or less merciful than missiles now permitted. (3) That it was illogical and not demonstrably humane to be tender about asphyxiating men with gas, when all were prepared to admit that it was allowable to blow the bottom out of an ironclad at midnight, throwing 400 or 500 into the sea, to be choked by water, with scarcely the remotest chance to escape. If, and when, a shell emitting asphyxiating gases alone has been successfully produced, then, and not before, men will be able to vote intelligently on the subject."

9

PROHIBITED METHODS.

137. In general, the prohibited methods of injuring the enemy include

(a) Acts involving perfidy or treachery.

(b) Acts causing suffering or damage disproportionate to the military ends secured.

(a) Acts involving perfidy or treachery are in general forbidden, though ruses of war and deceit not involving perfidy are allowed.10 It is forbidden to kill or wound individuals of the enemy's forces by treachery, to misuse the flag of truce or the Red Cross flag, or to make false use of the national flag or military insignia of the enemy in war on land, though the use of enemy or of false colors in maritime warfare is not prohibited. The prohibition of the use of false colors at sea has been strongly urged.11

(b) Many acts formerly allowed are now prohibited as causing suffering or damage disproportionate to the military ends secured. Such acts include refusal of quarter, killing of enemy who has surrendered, unnecessary destruction of enemy property, pillage, confiscation of private property, or bombardment of undefended places, except in maritime war, when reasonable requisitions are refused. The belligerent is forbidden

Holls, Peace Conference at The Hague, p. 494.

10 Laws and Customs of War on Land, articles XXIII, XXIV, Appendix, p. 541.

11 Int. Law Topics and Discussions, U. S. Naval War College, 1906, pp. 7-20.

to compel nationals of the enemy to take part in war against their own state, to furnish information in regard to the means of defense, or to swear allegiance to a hostile state. The belligerent is also bound to respect the personal rights of the nationals of the enemy state as to family honor, property, religion, etc. These prohibitions are quite fully set forth in the Hague Conventions of 1907.

SPECIAL REGULATIONS-BOMBARDMENT.

138. (a) Bombardment of undefended towns or buildings by land forces is prohibited.

(b) Bombardment of undefended towns or buildings by naval forces, except when reasonable requisitions for necessary supplies are refused, is prohibited.

(c) In all cases of bombardment, whether of defended or undefended places, due care should be taken to restrict the action to military ends.

(a) The rules for land warfare prescribe that "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended, is prohibited." 12

(b) Similarly the bombardment of undefended towns and buildings by naval forces is forbidden. The presence of submarine contact mines off the harbor is not regarded as sufficient cause for bombardment. The destruction of military resources by bombardment, if they cannot otherwise be reached, is permitted. The refusal of money contributions is not a sufficient cause for bombardment, though the failure to comply with a request for a reasonable amount of supplies necessary at the time may be a cause for bombardment by naval forces.1 (c) Nonmilitary buildings, etc., are liable to the damages incident to bombardment. The action is, however, carefully regulated by convention:

13

"Article V. In bombardments by naval forces all the necessary measures must be taken by the commander to spare

12 Hague Convention, Laws and Customs of War on Land, article XXV, Appendix, p. 541.

13 See Hague Conventions, 1907, Bombardment by Naval Forces in Time of War, Scott, Peace Conferences, p. 261.

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 fixed rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white."

"Article VI. If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities." 14

SAME-SUBMARINE MINES AND TORPEDOES.

139. By the Hague Convention of 1907, it is forbidden: "(a) To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them.

"(b) To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings.

"(c) To use torpedoes which do not become harmless when they have missed their mark."

There was much discussion as to the propriety of the use of torpedoes when that method of warfare was first introduced. As soon, however, as it was assured that the belligerent could control the action of the torpedo to a reasonable degree, the opposition disappeared.

There has been a like opposition to the use of submarine mines. The subject of the use of submarine mines was considered at the Hague Conference in 1899, and again in 1907. The Second Conference reached the conclusion embodied in the Convention Relative to the Laying of Automatic Contact Submarine Mines, prohibiting the laying of such mines except under condition that by construction they would, if unanchored, become harmless one hour after they ceased to be un14 Ïd. p. 263.