problem of political representation, the doctrine of equality is not yet dead. There are still a number of writers, and probably also of politicians, who are prepared to argue that in the future development of the institutions of the League the old dogma of the writers must be respected. The purpose of this present study has been principally to endeavour to clarify current ideas on the subject, to show what seems to be the true line of defence against both the theory and the application of the doctrine of equality, and to indicate the true direction in which political and legal progress must be hoped for.

AIR BOMBARDMENT

By J. M. SPAIGHT, O.B.E., LL.D.

THE purpose of this paper is to set forth as briefly as possible the considerations which must be taken into account in framing any workable rule of air bombardment. For the views expressed in it the writer alone is responsible. Acquaintance with the existing state of international law in regard to naval and land bombardment is assumed. It may, however, be useful to draw attention to the stages by which international legislation upon the subject proceeded to the position existent in 1914. That position was the culmination of a series of stages which had begun forty years before.

I. THE STAGES OF INTERNATIONAL LEGISLATION ON

BOMBARDMENT.

The first stage is to be found in the rules proposed for land bombardment at the Brussels Conference in 1874. These rules laid down that only fortified towns could be besieged and that open towns which were not defended could neither be attacked nor bombarded.

The first Conference of The Hague, in 1899, taking up the unfinished work of Brussels, amended the rules to read that towns which were not defended could not be attacked nor bombarded. The restriction of legitimate attack to fortified or non-open towns was abandoned.

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At the second Conference of The Hague, in 1907, the land war rule was merely extended to forbid the bombardment of non-defended towns by any means whatever," the purpose of the extension being to make the rule applicable to bombardment from balloons as well as by artillery. In regard to naval bombardment, however, this Conference took an important step forward. It recognised the right of a naval commander to shell certain

defined parts of even an undefended port or town. These parts

were:

"Military works, military or naval establishments, depôts of arms and of material of war, workshops or plant fit to be used for the needs of the enemy fleet or army, and ships of war in the port."

As readers of this paper will be aware, the departure thus sanctioned from the land war rule exempting undefended towns from bombardment was due, as the report of the Committee which examined the question at The Hague expressly states, to special reasons which apply to naval bombardment and which, it may be added, equally apply in large measure to aerial bombardment. While in land war a belligerent will be in a position to take possession of an undefended place and then, without having recourse to bombardment, to carry out any destruction which would assist his operations, the commander of a naval force may be obliged under certain conditions, no other means being available, to use his guns to destroy enemy establishments serving military ends, when he has no landing party at his disposal, or is faced by the necessity for a rapid withdrawal.1

One can see, then, in the proposals of the Conferences of 1874, 1899 and 1907, three successive stages in the development of the law of bombardment, tending steadily in the direction of widening its scope. First, only the fortified and defended city can be attacked. Next, an unfortified city can be attacked if it is defended. Then, an unfortified and undefended city containing certain establishments can be attacked for the purpose of destroying these establishments. The development must now proceed to yet another stage, or rather the last stage must be completed by discarding finally the criterion of "defence " and substituting therefor the idea implied in the naval bombardment rule, namely, that of the "military objective."

II. INADEQUACY OF THE "DEFENCE" TEST.

The old broad rule that a defended city may, and that an undefended city may not, be bombarded, is no longer of any practical value. It has never been a satisfactory rule; it is more unsatisfactory than ever when applied to air bombardment.

1 Protocols of the Eleven Plenary Meetings of the Second Peace Conference held at The Hague in 1907, p. 115 [Cmd. 4081] (1908).

At the best, as Professor Pillet states: 1" undefended is an unfortunate expression, for one cannot know whether a town is defended until the moment when one decides to attack it." It will be still more difficult in future to tell whether a place is defended or not, for defence against air attack will tend to take the form of aerial counteraction rather than of artillery defence, and a squadron or flight of defending aircraft, perhaps based on some fairly distant aerodrome, may suddenly appear above a town which is entirely open so far as ground defence is concerned, and deny the raiding aircraft force access to that town, which cannot then truly be said to be undefended. For this and other reasons the criterion of “ defence ” as a test of the legitimacy of bombardment will have to be reconsidered, and liability to or immunity from attack made to depend upon some other consideration.

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What, then, should be the test? Complete prohibition of air bombardment may be ruled out as an impossible ideal. Unrestricted freedom of air bombardment may similarly be set aside as repugnant to sentiments of humanity. A rule which is either unacceptable ab initio or bound to break down in practice is useless. One must take account of the practical limitations of the issue, and these impose upon one, in effect, a choice between two alternatives which are distinct in principle but may, to some degree, be combined in their application. These alternatives are represented broadly by the doctrines of air bombardment adopted by Great Britain, and less categorically by France, on the one side, and by Germany on the other, in the Great War.

III. BRITISH, FRENCH AND GERMAN PRACTICE, 1914-18. The British doctrine of air attack may be gathered from certain official pronouncements which were made during the war. The first was an Admiralty communiqué of February 16, 1915, relating to a Royal Naval Air Service air raid on Bruges and Ostend; in this it was stated:

"Instructions are always issued to confine the attacks to points of military importance, and every effort is made by the flying officers to avoid dropping bombs on any residential portion of the towns."

1 "La Guerre Actuelle et le Droit des Gens," in La Revue Générale de Droit International Public (1916), xxiii, p. 429.

Mr. Asquith stated in reply to a question by Mr. Jowett in the House of Commons on March 4, 1915:

"Attacks [by our air, land or sea forces] are directed only against points of military significance, and every precaution is taken to avoid damage unnecessary to the object in view."

In each case attacks on German forces and military establishments in Belgium were referred to, but the same policy of confining bombardment to military objectives was affirmed at a later date by the Under Secretary of State for War (Mr. Macpherson) in regard to attacks upon German towns. Speaking in the House of Commons on March 19, 1918, he said:

"By attacking in daylight it has been possible to concentrate attack on objects of actual military importance-a striking contrast to the promiscuous methods adopted by the enemy."

In accordance with the principle thus laid down, the British reports of air raids upon German towns invariably specified the actual objectives of attack—railway stations, barracks, munition and chemical works, etc. Whether the town was technically an open," i. e. an undefended one, was not stated, and was apparently regarded-and rightly so-as being for this purpose immaterial.

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The French view was in agreement with the British, although in some cases the French official communiqués tended to confuse the question by speaking, incorrectly, of "reprisal" attacks by French airmen on German works and establishments which were perfectly legitimate objectives in any case.1

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While German practice was, at the least, inconsistent and opportunist, the German doctrine at any rate appears to have been that open "(i. e. undefended) towns not in the theatre of operations were immune from bombardment. When Karlsruhe was bombed by French airmen on June 15, 1915, the German official communiqué protested against the attack on an open town, far from the theatre of operations and not in any way fortified." A similar protest was made against the subsequent bombing of Freiburg, Stuttgart and other towns in the interior of Germany. An official Berlin communiqué of July 21, 1916,

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1 L. Rolland : “Les Pratiques de la Guerre Aérienne,” in Revue Générale de Droit International Public, 1916, xxiii, p. 543.