The frequent painting by editorial writers of the picture of defenseless cities being subject to a rain of missiles from the air has added nothing to the peace of mind of city dwellers. In their search for comfort—or confirmation of their fears—such folk reasonably turn to the air warfare rules drawn up at The Hague in 1923. True, these rules have not been ratified by the powers whose representatives brought them into being. But it may be said they represent the best thought so far set in form of anything likely to become an international convention on the subject of regulating this newer type of warfare.
The provision of the air warfare rules most significant in our inquiry is Art. 24, which defines the scope of legitimate aerial bombardment—though it does not define, for do the rules anywhere define, aerial bombardment. Article 24 provides:1
- Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage.
- Such bombardment is legitimate only when directed exclusively at the following objects: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition, or distinctly military lines of communication or transportation used for military purposes.
- The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph (2) are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.
- In the immediate neighborhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate provided there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.
These rules seem to give expression to the desire of most military leaders that the hardships of war, so far as practicable, shall be confined to those actually engaged therein. By making the “neighborhood of the operations of land forces” the criterion by which the aviator’s liberty to bomb widespread areas is determined, the rules seek to offset the airman’s ability to reach areas which hitherto by their remoteness from the point of contact of fighting surface forces could consider themselves safe from the immediate effects of armed conflict. And, in endeavoring thus to confine the airman’s scope, the rules fall, I submit, into their first apparent error.
What of the activities of the naval aviator operating from a battleship? Under the rules governing the use of his ship’s main batteries,2 generously wide discretion is given the naval commander to range his guns over a city which for various reasons he may be bombarding.
And in the nature of the case, the naval commander so engaged must be expected to cause extensive damage to noncombatant property even when endeavoring to confine his shells to a military objective if it be located adjacent to the town, as, for example, an enemy vessel at anchor in a harbor, because of the dispersion of shells at reasonably long bombardment ranges. But, under the proposed Hague rules, the seaplane dive bomber catapulted from the same battleship, being in this instance not in the neighborhood of the operations of land forces, would be limited in his activity to such objectives as he could bomb without coming within restriction of the doubtfully definite phrase “indiscriminate bombing’’ of the civilian property and personnel.
Clearly, from the standpoint of the civilian in the case, it would make little difference whether he were hit by a fragment from an aerial bomb or a similar fragment from a ship’s shell. Yet, under the rules, the aviator’s fragment might be alleged to have come from an “indiscriminate” projectile, while the naval gunnery officer’s fragment could not be so denounced.
In the case of land bombardment, the neighborhood of the operations of land forces, as far as it operates to govern bombardment, seems, as Royce indicates3 in his able thesis, to expand exactly with the range of land artillery! In short, while we in effect let the land artilleryman fire as far as he can, we seek in the rules to impose upon the air bomber the limitations of the range of the surface gun, that is, as far as the exercise at will of his bombing ability is concerned. It seems something less than reasonable to this writer to expect that this newer bombing machine would, in the event of hostilities, be thus confined in its activity.
Further to illustrate the situation: Assume that one of two belligerent forces is well equipped with long-range artillery, while the other is relying mainly upon aircraft for its bombing offensive. Now, under the existing land bombardment rules, the heavy artillery of the one belligerent might range wide areas behind the enemy’s lines in effort to break up his communications.4 But suppose the second belligerent—he who relies upon aircraft—sends his bombers behind the lines of his adversary a distance equal to the extreme range of heavy artillery in search of military objectives. Under the proposed Hague rule, the aircraft would be prohibited from bombing military objectives if it involved "indiscriminate bombing" of the civilian personnel. Can anyone reasonably doubt that loose construction of the word "indiscriminate" must inevitably result in such a situation?
To this writer, it appears that those who formulated The Hague rules for air bombardment should have undertaken to formulate rules applicable to all forms of bombardment. In the nature of the case, there are no physical limitations which make the aircraft entirely a land or a sea combatant, and the present practice is to train air forces to work with surface forces ashore and afloat. Why, then, seek to impose legal restraints upon the airman which are not imposed upon those with whom he works?
For the purpose of formulating such universal bombardment regulations, the cited article (24) of the air warfare rules may well serve as a basis. In line with the criticisms already made, certain modifications suggest themselves, bearing in mind that the purpose is to save, so far as practicable, the lives and property of noncombatants.
Paragraph (1) of the article might well stand with the word "aerial" stricken out, so as to make its application general to all bombardment.
Paragraph (2) should, I submit, be modified by inclusion of the phrase "and all buildings used wholly or in part for any military purpose." The reason for this suggested modification is that a modern skyscraper would offer an ideal post for "spotting" the fall of artillery fire or for observing the movements of enemy forces. Hence, even though not within the area of actual fighting, it would legitimately be a target for destruction by bombardment.
Paragraph (3) should be modified by striking out the phrase " . . . not in the immediate neighborhood of the operation . . ." and including the phrase" . . . not within the zone of combat of the surface forces engaged . . . " Such a substitution would make the rule applicable to all types of bombardment whether or not one or both the engaged forces on the surface were land or naval detachments. It should be further modified by inclusion of the words, after "prohibited," as follows:
Provided, however, that if a legitimate military objective be situated within such town or village outside the zone of combat, it may be bombed subject to the restriction of accuracy hereinafter provided.
This is obviously necessary because a combatant cannot reasonably be expected to grant any immunity to a military objective to which he can gain bombing access, merely because it happens to be located in an otherwise noncombatant area.
The modification suggested as necessary to Paragraph (3) brings us to another defect in the proposed Hague rules: The lack of definition of terms. Who can say what the "immediate neighborhood of the operations of land forces" means? It is suggested that a workable definition of the proposed phrase "zone of combat of the surface forces engaged" would be this: The zone of combat shall include all areas within which firing is taking place incident to the clash of the surface forces engaged.
The effect of such a definition would be to place upon each belligerent the responsibility for subjecting his own areas to bombardment. If he chooses to seek for his heavy artillery the advantages of positions in the rear of his lines, then he subjects those areas to bombardment. On the other hand, he may secure immunity for these areas, except where the permission to bomb “military objectives” operates, by keeping his artillery close to his battle line, and, of course, subjecting it to the perils consequent to such position.
A further modification of paragraph (3) would be a definition of the term “indiscriminate bombardment.” As it stands, how is a bombardment officer to be guided? The naval bombing officer, under present regulations, is not “indiscriminate” with his wide pattern, nor is the land artilleryman with his lack of accuracy. It is suggested that the second sentence of paragraph (3) of Art. 24 be rephrased along these lines:
In cases where the objectives specified in paragraph (2) are situated outside the zone of combat and within the limits of dense urban population, then they shall be bombed only by such means as would involve destruction within a radius not greater than — hundred yards from the extreme limits of the objective, due to the direct effects of the bombs themselves.5
Such a modification would have these effects: unless the belligerent in control of a given area chose to place his artillery close to the city, no such unfortunate incident as the bombardment of Paris by the German Big Bertha guns would recur, and no such unfortunate affair as the killing of scores of children by the allied aerial bombardment of Karlsruhe.6
At first glance, this suggested modification would seem to be objectionable because it might grant relative immunity to military objectives outside the zone of combat—an immunity which no combatant would be disposed to grant military objectives behind the other’s lines. But such is not the fact. The present state of the art of aerial bombardment admits of sufficient accuracy that projectiles could be placed within a reasonably small zone beyond which noncombatant individuals might retire for safety.
Up to this point, the discussion has concerned military objectives without the zone of combat, and unfortified. Manifestly, the presence of anti-aircraft batteries would complicate the situation, involving certainly a decrease in the degree of accuracy with which the aerial bomber could place his bombs. That being true, it seems but reasonable to rule that the firing of anti-aircraft artillery shall constitute such firing incident to the clash of opposing forces as would create a zone of combat embracing the area within which such firing were taking place. There would devolve upon the defender, therefore, the duty of deciding whether or not the noncombatants in the area thus protected were to be given opportunity to take themselves outside its limits in order to escape the consequences of unrestricted bombardment to which the area would be subjected.
A further objection is that the standard of accuracy set up, were it to be effective at all, would operate to prevent bombardment of military objectives outside the zone of combat through the medium of long-range artillery. However, it will be noted that the standard of accuracy proposed to be set up applies only in areas of dense urban population outside the zone of combat. It is submitted that to forbear using such truly indiscriminate bombardment method as artillery against such populated centers, when the military mission can be accomplished by the equally effective means of aerial bombardment, is a small price to pay for similar protection of one’s own back areas. To the long-range artilleryman we leave all military objectives outside the zone of combat which are not within areas of dense urban population.
To innocuous paragraph (4) of Art. 24 of the air warfare rules, there would seem to be little objection. The phrases" reason able presumption that the military concentration is of sufficient importance,'' and "having regard to the danger thus caused to the civilian population" offer no handicap to the bombing belligerent. Even as, according to Mr. Justice Holmes, calm deliberation is not to be expected in the presence of an uplifted knife, so it is somewhat unreasonable to expect nice distinctions to be considered by a combatant in attacking a town from which sudden death in large quantities is being hurled at him. To the noncombatant resident of a town which comes within the zone of combat, we can recommend only the beneficent offices of nimble feet.
It might be interesting to consider a practical case as affected by the bombing rules here suggested. So let us assume a hypothetical sea attack upon New York. If the defending fire were confined to the presently located ring of forts, and vessels to seaward of them, so much of Brooklyn, Queens, and Staten Island as lay between them and the attackers would mark the area which the enemy might shell without restriction.
His air bombers could attack such military objectives as the navy yard and the Army and Navy headquarters at Christopher Street and at Whitehall Street, respectively, and, of course, the establishment at Governors Island. But so long as no defending firing were actually taking place in the city or behind it, such bombardment would be subject to the standard of accuracy set up for such operations.
Similarly, the railway terminal within the city and the bridges spanning its rivers would be objects of attack even in the absence of troop movement on them at the particular time. The fact that they might be put to such use makes of them legitimate military objectives. But there would be no excuse for bombardment of the city's skyscrapers merely for the harassing effect that it would have upon the defenders' morale. However, should the accuracy of the defenders' firing indicate that some of the many unrented offices in the Empire State Building, or some similar edifice, were being used for spotting purposes, then, of course, these would be subject to attack.
It is certain to be objected by the more enthusiastic protagonists of "humanized" war that the suggested rules afford the civilian in no place a complete immunity from bombing attack as long as there be a military objective in the neighborhood. To this one can but reply that the rules suggested satisfy the requirement of any rule of warfare—that they are capable of observance without interfering with the realization of normal military missions—and that they provide, within the limits of workability, a guide to safe areas for the noncombatant who chooses to avail himself of them.
Because it is believed that these rules would prove acceptable to military men who desire to keep the direct incidents of war away from noncombatants so far as practicable, the writer entertains some hope that regulations along these lines may eventually find their way into international convention. And, in passing, let it be pointed out to those who take exception to the mildness of the suggested regulation that there exists nothing in modern warfare rules directly regulating the air bomber's work. Analogies may be drawn from the rules of surface warfare and applied to air operations, but it is unlikely that a combatant would feel himself bound by such analogies with the same force that he would attribute to rules directly in point.
In the relentless extension of the range of war engines, man is removing whatever protection distance formerly accorded those not actually engaged in combat. And with such extension, the distinction between combatant and noncombatant is being obliterated by the thought that he who aids in the production of the sinews of war—now that he can be reached with destructive implements—is legitimate prey. It is to preserve whatever remains of the distinction between combatant and noncombatant that the efforts of those who undertake to formulate rules should be dedicated.
To make rulce for the protection of noncombatants is a simple matter for him who sits in an armchair, not confronted with the difficulty of compliance which faces those whose conduct he seeks to regulate. Let him consider the wisdom of those rules of personal combat laid down by the Marquis of Queensberry. The worthy Marquis did not attempt to tell a combatant not to hit his opponent too hard. He merely defined what were fair areas for his blows, and did so in a manner which did not prevent the combatant from effectively putting his opponent out of the fight.
To this writer it seems inevitable that in every well-run war some folk are bound to be hurt, including, regrettably, a few innocent bystanders. Let those, therefore, genuinely interested in saving mankind from the sufferings of war, and possessed of the prestige that lends force to their views, direct their efforts toward preventing war, not humanizing it. The effective prevention of war for all time is a goal all will admit is some distance from realization. If in the meantime we seek to regulate warfare let us bear in mind that rules which attempt to impair or prevent effective use of destructive engines against legitimate targets are foredoomed to disobedience in wartime.
1 For text of this article, see Despatch from the First British Delegate to the International Commission for the Revision of the Rules of Warfare (Miscel. Documents 1924, No. 14 Command. 2201) page 27.
2 Naval bombardment convention (1907) Art. 2. For text see Higgins, Hague Peace Conference, pp. 346 el seq.
3 Royce, A trial Bombardment, p. 149 etseq.
4 Even otherwise “undefended” towns being subject if troops were passing through—U. S. War Manual (1914) Rules of Land Warfare No. 214 cited by Royce, ibid., p. 158. For text of Rules of Land Warfare, see Reglement of Hague Convention of 1899 (regulations respecting the laws and customs of war on land) given in full in Higgins, supra, p. 219 el seq.
5 The exact distance would be a matter to be determined by experts, but must be sufficient to allow for the least accurate bomber likely to be used.
6 This incident, June 15, 1915, caused great indignation among even neutrals present, according to a war correspondent friend of the writer who was there, because there seemingly existed no real military excuse for the act other than to terrorize the civilian population.