Page images
PDF
EPUB

its outskirts, there are but small detachments of troops, or even none, or military establishments or factories whose destruction can have but a trivial influence upon a campaign, is an offence against humanitarian sentiment. The military advantage, such as it is, that would be attained by an air attack in some cases of this kind could be purchased only at an appalling cost of civilian life. With the new arm noblesse oblige. The eagle has eyes to see. One can expect him to abstain from striking at objects not worthy of the swoop and fury of his attack.

66

One may demand, then, that in the zones of operations air attack shall only be employed against agglomerations" (to use the useful French term for inhabited places) in which the military element is more important than the civilian. Outside such zones the rule of the military objective should be still more strictly interpreted. Only such an objective, that is, an object of military importance of the kind liable to naval bombardment under the Convention of 1907,1 should ever be subject to bombardment. It is the "pound of flesh" which the air commander must take without drawing civilian blood. Unless he can segregate or pick out the military objective to be bombed he should abstain from attack. Troops on the march in open country, camps or barracks isolated from towns, and military establishments, strategic railways, munition factories, or depôts, which are so situated that they can be bombed without danger to non-combatants, are obviously legitimate targets. It is in regard to barracks, munition factories or railway centres situated in a densely populated city that the practical difficulty will arise. In many cases it will be impossible to attack such objectives without inflicting widespread damage upon civilians. To demand abstention from attack in such circumstances is to ask much of the air arm, but it is no more than is asked of naval commanders by the Washington Rules governing operations against sea-borne commerce.

There is, however, this important difference between air and naval attack, that the legitimacy of the former, in a much higher degree than that of the latter, must necessarily be a matter for the judgment of the individual officer immediately concerned. Air bombardment is subject to no such specific prohibition as that applying to submarine operations against merchant vessels, and provided a flying officer, in acting under the orders given 1 See Pearce Higgins: The Hague Peace Conferences, p. 355.

to him, uses reasonable discretion and executes them in a manner not clearly wanton nor callously inhumane, an error of judgment on his part cannot be treated as a war crime."

66

VII. SOME RESULTS OF THE PROPOSED RULES.

Two practical results of the joint application of the rule of the military objective and of the discrimination between operational zones and other localities must be noticed. The first is that, while "defence" will disappear as a ground for general bombardment of the defended city or town, it will remain nevertheless a constituent (as it were) of liability, for attack from the ground upon aircraft, or the preparation of such means of attack, will establish the presence in that place of a military objective, viz. the anti-aircraft force or gun. This objective is a legitimate target. The second is that, since the operational zone which is contrasted with other localities is a zone of land operations, a port or coastal town, even one which is being actually bombarded by a naval force, is not within the operational zone here signified unless it happens at the same time to be in the immediate neighbourhood of land operations. If it is not, any aircraft co-operating with the warships will be bound to confine their bombs to those military objectives which can be so destroyed without the indiscriminate destruction of civilian life and property. On the other hand, so long as the rules of naval bombardment remain as at present, the ships' guns can range at large over the defended port or town and need not restrict their fire to military objectives; and, while the aircraft must not themselves drop bombs in this broadcast fashion, there is nothing to prevent them from directing, by "spotting," the fire of the warships over parts of the port or town which are not military objectives. This inconsistency can only be remedied by a revision on more logical and humane lines of the law of naval—and, it may be added, of land-bombardment as it exists to-day.

VIII. THE CASE OF MUNITION WORKERS.

In what is here said with reference to the sparing of civilian life it is important to take account of one special category of

civilians. These are the workers, men and women, in munition factories. As Professor Rolland has observed,1 they

66

occupy a position intermediate between the combatants properly so called and the non-combatants who continue to follow their peace-time pursuits and professions. The reasons for giving them a privileged position in regard to hostile action are losing much of their force. Fundamentally these people are almost exactly in the same situation as men engaged in the auxiliary services of the armies. Now the latter are certainly exposed to violent measures." This statement by Professor Rolland has been criticised by Messrs. Mérignhac et Lémonon 2 as failing to make the necessary distinction between munition workers actually employed upon such work and the same persons when in their own homes. In the latter case they are in no way different from the ordinary population. It is only when actually at work in the munition factories that they can be regarded as holding a special position. When so employed they cannot be considered to be entitled to the immunity which otherwise they can claim.

IX.-IMPERFECTIONS IN THE SOLUTION OUTLINED.

It cannot be pretended that a régime of air bombardment based on the principles outlined above will be in all respects satisfactory. The subject bristles with difficulties. The delicate equipoise between military and humanitarian interests is all but beyond human achievement. It is, however, an advance, and a notable one, to establish the principle that attack should be limited to actual military objectives and to abandon once and for all the outworn rule that the presence of outlying defences justifies the indiscriminate bombardment of the city or town behind them. It is in the loyal observance by belligerent Governments and aircraft commanders of the rule of the military objective that hope for the future lies. In air warfare more than in its elder brethren of the land and the sea, the heart and conscience of the combatants are the guarantee of fair fighting, not any rule formulated in a treaty or a manual. Given a principle to be followed and given also the due recognition in that principle of military exigencies, the fighting men must be trusted to apply it with chivalry and humanity. Any failure upon their part to do so will react inevitably upon the people of 1 Op. cit., p. 554.

2 Le Droit des Gens et la Guerre de 1914–18, Vol. I. pp. 646–7.

their own country, for reprisals are certain to follow breaches of the rules laid down. There is here an additional motive for strict compliance with the bond.

It is mainly because of the very nature of air warfare and because the whole civilian world has a common interest in the restriction of air attacks that one is entitled to discount certain obvious imperfections in the solution outlined. It is true that its success will depend almost entirely on the exercise of sound judgment and discretion by aircraft commanders. It is they who will have to decide, often on incomplete data and under difficult conditions-fired upon, possibly, by anti-aircraft guns from below and by hostile aircraft from above-whether any given establishment is in fact a "military objective"; whether, outside an area of operations, it can be bombed without inflicting widespread injury upon non-combatants; whether, within an area of operations, the military concentration is such as to justify the treatment of a town or village as a place d'armes; whether, finally, any given place is or is not within an operational zone. This last question is neither so important nor so indeterminate as it would become if complete prohibition of bombardment outside the operational zone, and not merely the requirement of greater discrimination in attacking military objectives outside that zone, were in question, or if the zone were less narrowly defined than is here proposed. There will, however, be occasions in which doubt may arise; the border-line case will always be a difficulty. On all the points referred to there is clearly room both for deliberate abuse of the rule and for human error in the honest application of it. Probably no rule could be devised of which the same might not be said. / At least, a rule which was so simple and categorical as to be completely satisfactory to the jurist would almost certainly not commend itself to the air commander, nor again would a rule which gave complete satisfaction to the latter prove at all acceptable to the jurist.

WHOSE IS THE BED OF THE SEA?

SEDENTARY FISHERIES OUTSIDE THE THREE-MILE LIMIT

By Sir CECIL J. B. HURST, K.C.B., K.C.

ON August 2, 1858, the Royal Assent was given to an Act called the Cornwall Submarine Mines Act, which declared in Section 2 that minerals won from mines and workings below low-water mark under the open sea adjacent to but not being part of the County of Cornwall were vested in the Queen in right of Her Crown "as part of the soil and territorial possessions of the Crown." Parliament by this legislation has committed itself to the proposition that the bed of the sea below low-water mark is vested in the Crown.

As the rights of the Crown were fixed-at any rate in this country-long before the existing rules of international law on questions like the three-mile limit were developed, it will be useful to consider such precedents and authority as exist in order to see what bearing they have on questions intimately connected with the bed of the sea, such as pearl or chank fisheries, submarine cables and tunnels.

The story of the origin of the Cornwall Submarine Mines Act is told with some detail in the judgments of Lords Coleridge C.J. and Cockburn C.J., in R. v. Keyn.1 A dispute had broken out between the Crown and the Duchy of Cornwall as to the ownership of minerals won from workings lying beneath the water on the coast of Cornwall. The dispute covered minerals obtained from workings (a) between high- and low-water mark, (b) below low-water mark in tidal rivers and estuaries, and (c) below low-water mark in the open sea. Lord Cranworth, then Lord Chancellor, and Lord Kingsdown, then Chancellor of the Duchy, agreed to refer the question to the arbitration of Sir John Patteson, one of the judges of the Court of Queen's Bench, and Sir John Patteson decided that the right to all

1 L.R. 2 Exch. Div. at pp. 155-157 and 199-201.

« PreviousContinue »