Aerial Warfare and International Law

By A. de Lapradelle
(Professor of International Law in the University of Paris)

[Scribner's Magazine, July 1915]

As soon as an invention is made war appropriates it. The first air-ship, the Montgolfière, was floated in 1783. Eleven years later, at the battle of Fleurus, the captive balloon was used by the French for observing the enemy's position, and in 1812 the Russians at Moscow sent up a sort of balloon loaded with explosives. Thus the two military functions of the aeronaut, reconnoitring and bombarding, were promptly developed. War began to grow wings—short at first: for in 1899, at the first peace conference at The Hague, even the most unyielding of the nations in the matter of their military rights agreed to clip the wings of war. They declared that dropping projectiles from balloons was forbidden. But when the powers held their second peace session at The Hague, in 1907, the science of aeronautics had made such progress that the Platonic sacrifice of 1899, if renewed, would have become a real sacrifice. While Belgium was proposing to continue the agreement of 1899, at least until a third conference should meet, the dirigible Patrie was making its first flights, and another type of flying-machine, the aeroplane, was just about to appear. The conquest of the air was no longer a chimerical dream. Consequently, the cause of peace having made less progress since Kant than the science of aeronautics since Montgolfier, war prepared to scale the heavens.

Twenty-nine out of forty-four powers still agree to the articles of the first Hague conference prohibiting the dropping of bombs from, balloons. The other powers, among them Germany, Austria-Hungary, France, Japan, Italy, Russia, refuse to be bound. "Do not the two elements of earth and water furnish a theatre large enough for war without seizing the third?" cries Lord Reay. Before attempting to limit war on land and sea should we not exclude it entirely from the air—the realm which heretofore has been free from its curse? Undoubtedly, such a course would be highly desirable. But, since this scourge of humanity, called war, dogs man's footsteps, it is perfectly natural that it should follow him into the sky. Are the aerial bombs more cruel than the sleeping mines, or more destructive than the furtive torpedoes? Are they not rather the weapon par excellence of the weaker power, since at small expense they can be thrown from an aeroplane costing $5,000 to destroy a dreadnought costing $15,000,000? And has not the weaker power often the juster cause? To allow the air-craft to reconnoitre (as every one of the powers at The Hague did), and at the same time to prohibit it from dropping bombs, would be illogical For to reconnoitre is to observe, and to observe is to injure the enemy, and to injure the enemy is to expose one's self to the enemy's fire. Can one expose one's self to fire, logically, without firing one's self? We deplore the fact that men are so slow in moral growth, in spite of their rapid progress in material things, that they are ready for the conquest of the air long before they have conquered peace. But man is man. And the curse of war, so long as it follows him on land and sea, will follow him also into the vast regions of the air.

The powers which refused in 1907 to renew the prohibition of aerial bombardment intended thereby to reserve to themselves the right to destroy the ships of war of the enemy on the sea and the troops, in camp or in action, the arsenals, the storehouses, etc., of the enemy on land, without giving due warning. They did not claim and could not claim the right to pass beyond the limits prescribed for the nations by the laws of terrestrial and maritime warfare.

The merchant ship which cannot be lawfully torpedoed by a submarine until the crew has been removed to a place of safety, cannot lawfully be destroyed by surface-craft or air-craft, hydroplane or aeroplane, without the same precautions having been taken. In defended cities, inland or on the coast, churches, hospitals, museums, schools must be spared as far as possible; and undefended seaports can be the object of a bombardment by ships of war only as a measure of constraint to provide food or, with the authority of the local powers, to destroy magazines and depots of arms and munitions (by the terms of the two conventions of the Hague conference of 1907, on terrestrial warfare and naval bombardment). Now, these cities cannot in any case be bombarded by aerial forces in conjunction with naval or terrestrial forces, unless under the same conditions under, which the naval or terrestrial artillery with which it seeks to co-operate acts.

In other words, the aerial squadron carrying bombs, which appears above Paris, London, or any other city, inland or on the coast, defended or undefended, must, if co-operating with an attacking army or fleet, proceed according to the laws governing the action of that army or fleet. That is undoubtedly what the powers meant when they inserted in the Hague regulations concerning terrestrial warfare, in 1907 (though not in the convention on naval bombardment), the apparently gratuitous warning that the rules of terrestrial bombardment applied to bombardment "from any source whatever."

When hostile air-craft appear above a city, even a defended or fortified city, which no army is besieging or attacking, or above a seaport when no fleet is near: when, in a word, the aerial attack is made, not in conjunction with terrestrial or naval forces, but isolated and independent of both, is bombardment allowed? In such a case one would be tempted to extend the rules of terrestrial or naval bombardment to aerial bombardment: that is to say, to permit the attack on the defended city under the double condition of previous warning and the immunity of such establishments as hospitals, churches, schools, and museums; or, following the naval rules, to allow the bombardment of undefended cities for the destruction of certain stores or magazines or for the sake of the requisition of food supplies.

But how can we conceive an aerial bombardment for the purpose of provisioning aeroplanes or dirigibles? Such air-ships could hardly take away a heavy load, and they would consume almost as much fuel and food as they could take away, and would then incur a very great risk. And how could they, flying over undefended cities, negotiate, as by law they must, with the local authorities for the destruction of military establishments? Granted that it were legally justified, the extension of rules of maritime war to aerial war would be extremely difficult in the present or immediately imaginable status of aeronautic science. But the extension of the right of bombardment to undefended cities, granted in naval war, is not possible in law, because the bombardment, by air-ships, of cities, even defended, is not allowed when the air-ships do not co-operate with land or sea forces.

The bombardment of a fortified place has only one purpose: to force the place to surrender. Consequently the person who is not in a position to receive a surrender has no right to attack. Now, one must admit that the dirigible or the aeroplane which flies over a city which is not being attacked by any land or marine forces has no way of bringing the city to open its gates. To whom shall the city open, then? To a besieging army? There is none. To the air-craft which threatens it in an audacious raid? The craft cannot come down without being captured. It may be true that the city contains magazines and troops. If the city is not fortified the local authorities can be summoned to destroy them without a demand for surrender. If the city is fortified the only summons that can be addressed to it is the surrender—a summons which the aeroplane is manifestly unable to enforce. No force that is not strong enough to exercise an efficient mastery has the right to issue a summons.

But it is not only the spirit of the Hague regulations, it is their very letter even, that is opposed to the present tendencies of aerial warfare, directed in isolated instances, at long distances, and rather against the citizen population (placed by the Hague decrees beyond the reach of war) than against the so-called military establishments of the fortified or the non-fortified places. These raids, which ought always by law to have been preceded by warnings, but which have not so been, belong to a new kind of warfare, hardly dreamed of in the past, but now raging—the warfare of terror. In this kind of warfare, aerial raids, which Wells awhile ago imagined passing over New York in their destructive flight, are one of the favorite arms. This warfare of terror, in which the peaceful civilian population is threatened, is disqualified from the very start. It can justify itself only by the striking success of its measures. Judged even solely by its own standards it is condemned. The gamin of Paris, welcoming the "five o'clock Taube" in the first days of September, with his mocking irony, gave final judgment. A war which kills children, only extorting from its innocent little victims the brave cry of Denise Cartier, "I am glad to suffer for my country!"—a war of terror which does not terrorize the inhabitants of the cities but only encourages their resistance, their energy, their bravery, gayly mocking in France, cold in Belgium, phlegmatic in England—a war of terror whose sole effect is to offer little girls the occasion for sublime sentences—such a war, with its infernal judgment that "success justifies every measure," stands self-condemned!

© J. Fred MacDonald, 2013

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