and another shelled by the British. These charges do not appear ever to have been substantiated (s).

Obviously there remain many minor points not covered by the Convention, owing to the new conditions created by a world conflict. If notified hospital ships are to be immune they must not engage in any work outside their immediate purpose. They must, for instance, only carry their own medical stores and personnel and not even act as transport for such stores and personnel intended for the use of sick and wounded on land (†).

Armed Merchantmen.-The immemorial right of a belligerent merchant vessel, whether armed or unarmed, to resist hostile visit and capture was never questioned until the year 1913, when Dr. Schramm and Dr. Triepel denied this right. From the earliest times merchantmen have been armed for the purpose of defence, if not for that of offence. As Marshall, C.J., declared in 1815, a belligerent merchant vessel rarely sails unarmed." Owing, however, to the abolition of privateering by the Declaration of Paris, and the growing disproportion between the strength of a warship and a merchantman, the practice of arming gradually fell into disuse. And it was not until the Central Powers resorted to unrestricted submarine warfare upon belligerent vessels, public or private, armed or unarmed, that the Allied Governments armed their merchantmen defensively to resist such illegal attacks, and instructed the commanders to open fire on all approaching submarines or aircraft upon the assumption that such approach was hostile. The United States, which, whilst neutral, had placed armed guards on American merchantmen sailing through the barred zones, wher. it became belligerent armed its merchant marine upon the same lines as the Allies. It is doubtful, however, whether such armament, frequently served by untrained gun-crews, was really effective (u). The most potent weapon was probably, in the case of short and fast vessels, ramming. It was the ceaseless hunting of the submarines by small craft which ultimately broke the submarine attack on commerce. In the war of 1914 there was, perhaps, in the peculiar circumstances no alternative to arming, but it led to difficulties. Although the majority of neutrals admitted armed merchantmen into their ports as private vessels subject to various restrictions, Holland refused to admit them at all, although recognising the right to arm. Further, there is the more serious question whether armed merchantmen are entitled to immunity from attack without warning. It is conceived that if the provisions of the Treaty of Washington, 1922, are generally accepted, whereby submarines are subject to the existing law, merchantmen should not be armed (x).

(s) See Garner, i. §§ 317-29; J. A. Hall, 109-11.

(t) J. A. Hall, 111-5; Hyde ii., § 782. (u) Admiral Sims, World's Work, Sep. 1919.

(r) See generally Hyde, ii. §§ 709, 742-3; Garner, i. §§ 261-4; Pearce Higgins, Defensively Armed Merchant Ships; Scott, A. J. I. L., x. 865; and p. 479, infra.

EXCURSUS III.

CONDUCT OF WAR IN THE AIR, WITH SPECIAL
REFERENCE TO
TO CONVENTIONAL

REGULATIONS.

Although the conventional regulations relating to air warfare are few in number, and in some respects ambiguous, some of the general principles applicable to land and sea warfare respectively apply to the conduct of war in the air. The Hague Declaration IV. 1, of 1899, prohibited for a term of five years "the launching of projectiles and explosives from balloons or by other new methods of a similar nature." This prohibition was renewed by the Hague Declaration XIV. of 1907. for a period extending to the close of the Third Peace Conference, but when the war of 1914 broke out, it had been ratified by only a few of the belligerents. France and Germany were not even signatories, and Austria-Hungary, Bulgaria and Turkey had not ratified. Consequently, by the terms of the Declaration itself, it was not binding upon any of the belligerents. But by Art. 25 of H. C. II. 1899, the attack or bombardment of towns, villages, habitations or buildings which are not defended is prohibited." This was intended to cover bombardment from the air, and by the addition of the words "by any means whatever" to the corresponding Art. 25 of H. C. IV. 1907, it was believed that such intention was placed beyond doubt. Both before and during the war of 1914, much discussion took place as to what constituted a defended place. Was Paris, was London a defended place? The militarists contended, and still contend, that the presence of troops either quartered or passing through a town, render it such. “It may be deemed to be defended," says the British Military Manual, Art. 119, "if a military force is in occupation or marching through it." Further, they contended that the presence of munition factories, military stores, barracks, railway junctions, even railway stations, military or naval establishments, and post-offices render a place defended. But in these contentions there is much confusion of thought. In land warfare the object is the surrender of the place, and if, after notice, the military authorities refuse to surrender, bombardment of military objectives, such as troops, fortifications, etc., is quite legitimate, care being taken to avoid as far as possible the destruction of the civilian population and private property. In sea warfare the destruction at long range of certain military objectives, after notice. is also legitimate. But in aerial warfare the circumstances are in

many respects entirely different. A distinction must be drawn between attacks outside the area of military or naval operations and attacks within that area. In the former there can be no question of surrender. since it is impossible for the attacking belligerent to occupy the place. And since almost every village possesses a railway station or a postoffice, the doctrine of "defended places" must be abandoned. By the customary law, indiscriminate bombardment of places for the purpose of terrorising the civilian population is illegal. But since by the rules of sea warfare military objectives may be destroyed at long range, it would seem impossible to prohibit aerial bombardment of such objectives. And since surprise is an essential condition of success, it is contended that the requirement of notice may be waived. This would appear to be only reasonable. But what are military objectives? Fauchille would define them as "military works, military or naval establishments, depôts of arms or war material, shops and installations suitable for use by the enemy army or fleet, soldiers or other persons officially attached to the army or fleet and whose status is not regulated by the Geneva Convention" (u). If in bombing such objectives noncombatants or private property are injured, the aviator should be personally liable. This is substantially the rule in the French Military Manual, Art. 63. If, therefore, it is impossible for the aviator to distinguish military from non-military objectives, and consequently a direct hit on the former becomes a mere speculation, the attack ought not to be made at all. If, for instance, the War Office cannot be attacked without the probable risk of hitting Westminster Abbey, or St. Thomas's Hospital, such attack should be deemed illegal. This is within the spirit, if not the letter, of the Hague Conventions relating to land and sea warfare. The better legal opinion in England regards London as "an open town" containing various military objectives which may legitimately be bombed, provided such bombardment can be carried out with reasonable accuracy, so as not to inflict injury to life or limb or property of the purely civilian population. The main characteristics of London are those of a commercial, civilian and residential city. In the German raids over Great Britain, the evidence conclusively shows that in daylight raids, when every possible calculation was employed, when the mechanical aids, such as the latest bomb-sights, etc., were manipulated by skilled hands, and when officers and men were animated by the desire to bomb legitimate targets only, military objectives were rarely hit. In night raids accurate shooting was practically impossible. It is on evidence that the German aviators flew at the maximum altitude, that bomb-sights were frequently not carried at all, and if they were no effort was made to use them effectively. It is believed that in the fifty-one airship raids and forty-nine aeroplane raids over Great Britain, only two or three military objectives were

(u) Fauchille, 24 Rev. Gen. de in War, 18; Garner 1, § 272. Droit Int. Pub. 73; Spaight, Aircraft

hit. In these raids 1,117 civilians were killed and 2,886 injured, whilst only 296 soldiers and sailors were killed and 521 injured. The targets regarded as legitimate by the Germans were the City, the Bank, General Post Office, Admiralty, War Office, London Docks, and East End of London generally; also Woolwich, Tilbury, Harwich, Felixstowe and Dover. It was stated by two of the German officers captured in a night raid on London that they were able to pick out their targets, which they endeavoured to bomb, but another captured officer admitted that it was quite impossible to distinguish buildings at night from the altitude at which they flew. Under favourable atmospheric conditions, at a comparatively low altitude, e.g., 8,000 feet, and with improved bomb-sights, accurate shooting even at night is perhaps possible. But, in order to avoid the aprons and gunfire, the Germans kept at an altitude of 13,000 feet. Some of these targets, such as the City and the East End generally, were clearly not legitimate targets. And, indeed, it was admitted by the Germans that one of the, objects was to demoralise the civilian population. In view of the scanty military success of these raids, this may confidently be assumed to be one of the main objects of the German Government. Another object, no doubt, was the immobilisation of British troops and aviators. Such air raids may be compared with the British raids on French coast towns during the Seven Years War and the Napoleonic Wars. This was the avowed policy of the British Government, and it succeeded in keeping masses of French troops immobilised and French warships in French ports. But in more recent times such raids were deprecated, and were finally restricted by the Hague Convention IX. It was also contended by writers on both sides that the presence of anti-aircraft guns renders a place liable to attack. This contention is clearly untenable. The guns are there for defence against an illegal attack. The position is analogous to that of a merchant vessel defensively armed to resist unlawful attack by a submarine. And even the presence of anti-aircraft guns for defence, e.g., of Woolwich Arsenal, from legitimate attack, would not justify the indiscriminate bombardment of London or of adjoining districts.

The same general principles apply to the operations of aircraft in the theatre of war. The proposal of some eminent jurists to limit their use to that of observation, signalling, carriage of despatches and reconnaisance generally, is obviously futile. Militarists will never abandon such a potent weapon of offence. Moreover, in the legitimate bombardment of a town, or other military objective, it makes no difference whether the bombardment is by aircraft or land guns, or the conjunction of both. But the rules that hospitals are immune

and that the buildings specified in the Conventions must be spared as far as possible apply equally to aircraft. It is a commonplace of jurisprudence that if a lawful act cannot be accomplished without injuring third parties, it must not be attempted. The fact that

hospitals cannot be distinguished from other buildings in the dark is no excuse. Hospitals, indeed, are not absolutely immune under the Geneva Convention, but only real military necessity will excuse their destruction. Commanders are enjoined to take every care that they are not bombed. In an indiscriminate raid on a town at night, no such care can be exercised. Apart from genuine mistakes, there is abundant evidence that German aviators in numerous instances deliberately bombed hospitals. British, American, French and Belgian hospitals were so attacked, some of them repeatedly. In these attacks, large numbers of hospital personnel and patients were killed or wounded (x). In the first attack on Etaples, on the night of the 19th of May, 1918, 102 were killed and 286 wounded; in the second, on the night of the 31st of May, 1918, twenty-seven were killed and seventy-nine wounded. Whether the first attack was deliberate is not free from doubt, but, upon the available evidence, it is evident that the second, if not indeed deliberate, was made recklessly, without caring whether the hospitals were struck or not. One of the officers brought down on the second occasion admitted knowledge of the existence of the hospitals, but claimed that they could not act as protection to the adjacent military objectives. Apart, however, from any direct evidence of intention, there is every reason to believe that deliberate bombardment of hospitals, as of coast towns and sinking of hospital ships, was part of the general policy of immobilising the enemy forces. It was not mere intentional devilry, but an attempt to cause as much trouble to the enemy as possible without regard to any conventional regulations or the dictates of humanity. Whatever the motives, such attacks upon women who devote themselves to the arduous task of tending the sick and wounded of both belligerentsnine German wounded were killed in one raid-and upon helpless men are as cowardly as they are illegal, and though they may be of some immediate military advantage, such advantage is not commensurate with the suffering entailed. Indeed, it may be questioned whether such acts do not in the long run turn to the disadvantage of the offender. It was such acts as these which ranged the greater part of the civilised world against the Central Powers and eventually brought about their downfall.

The same principles apply to the bombardment of historic buildings, monuments, galleries, and works of art. The destruction of priceless works of art by the Germans in Belgium and France was emulated by the Austrian aviators in Italy (y). The existence of an arsenal in Venice constituted no excuse for the irreparable damage caused to artistic treasures which were the heritage, not only of Italy, but of the civilised world. Military commanders must be forced to recognise that nothing but absolute military necessity will condone such destruction,

(x) Garner, i. § 316.

(y) Garner, i. 289.