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AIRCRAFT IN WAR
MACMILLAN AND CO., Limited
LONDON . BOMBAY . CALCUTTA
MELBOURNE
THE MACMILLAN COMPANY
new york . boston . chicago
Dallas . san francisco
THE MACMILLAN CO. OF CANADA, Ltd.
TORONTO
AIRCRAFT IN WAR
BY
J. M. _SPAIGHT, LL.D.
Author of " War Rights on Land"
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MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON
1914
UG
■S6
COPYRIGHT
NOTE
Certain portions of the earlier part of this Book
have appeared in the Army Review for April,
19 14, and are here republished by permission of
H.M. Stationery Office.
The author has followed the Aerial Navigation
Acts, 191 1 and 19 13, in using the word "aircraft"
as either a singular or collective noun according- to
convenience.
Coulsdon, Surrey.
June, 19 1 4.
CONTENTS
I. Introductory — The Coming of the Aircraft of War — The
Impossibility of Securing Finality of Rules — The Legiti-
macy of Aerial War— Impracticability of Prohibiting the
Use of Aircraft — Development of Flight helped by its
Adaptation to War — How Aircraft will be Employed in
War — Raids Hy T^rpH-rlrnpr-'^ Ai^^ft- — Aerjpl Arrays
on Undefended Cities — Professor Holland's View — Bom-
bardment of Occupied but not Defended Cities —
Bombardment of Military Stores in Undefended Cities
— Buildings, etc., which may be Bombarded — London's
Liability to Aerial Bombardment — How London may be
Safeguarded— The Sanction of International Conven-
tions — Nature of the Questions which Arise — Arrange-
ment of the Book ...... i
II. References to Aircraft in the Hague Legislation — Flight
Practically Non-existent before Hague Conferences —
The Hague Legislation — The Discharge of Projectiles —
Inadequacy of the Hague Provision— The Hague Rule
as to Espionage — The Seizure of Enemy Civilian
Aircraft ........ 27
III. The Codes Proposed by M. Fauchille and Others — Pro-
jected Codes for Aerial War — The Madrid Debate of
191 1 — Shortcomings of M. Fauchille's Code — The
Proposed Codes and Contraband — Blockade Breaking
— Neutral or Enemy Character — Rules regarding
Civilian Aircraft in the Proposed Codes — Requisitioned
Civilian Aircraft — Civilian Aircraft and Zones of
Operations ....... 40
IV. The Sovereignty or Freedom of the Air — Aerial Sover-
eignty and International Conferences — The Freedom of
the Air — The Sovereignty of the Air- Qualified
Sovereignty Insufficient — Proposed Territorial Zone for
the Air — The Air as a res communis . . .56
V. Belligerent Entry of Neutral Atmosphere — Belligerent
Passage of Neutral Territory Belligerent Aircraft and
itral Ports- ^Impossibility ol I 'ill' 1 ciili' 1 ''";! i"'"" 1 ^"
Land- and Sea-planes . . . . -65
viii CONTENTS
VI. Distinguishing Marks for Aircraft and their Crews —
Necessity for an Irremovable Sign — Necessity for
Uniform ....... 72
VII. The Seizure, Confiscation, and Destruction of Private
Enemy and Neutral Aircraft. — Confiscation of Civilian
Aircraft entering Zones of Operations — Sequestration of
such Aircraft an insufficient Deterrent — Destruction of
Civilian Aircraft in Flight — Seizure of Neutral Aircraft
found in Belligerent Territory — Seizure of Aircraft Con-
signed by a Neutral Contractor to a Belligerent . . 75
VIII. The Treatment of Private Enemy Aircraft in a Belligerent's
Territory at the Outbreak of War — The Maritime Rule
and Aircraft — The Rule of Sequestration should be
Upheld 85
IX. Aircraft and the Alabama Rule — Arguments for and
against an Alabama Rule for Aircraft — Practical Objec-
tions to Applying the Rule to Aircraft . . -89
X. The Treatment of Civilian Enemy and Neutral Air-
men — MM. Fauchille's and Bellenger's Suggestions —
The Treatment of Captured Neutral Airmen — Neutral
Airmen in Enemy Aircraft — Table Showing how Aircraft
and Airmen of Belligerent or Neutral Nationality are
Treated when they Fall into a Belligerent's Hands in
Different Circumstances . . . . .97
XI. The Relation of Aerial Law to Existing Conventions —
Necessity for a Special Code — A Single Code for all
Aircraft possible — The Scope of the Aerial Code . . 99
XII. Some Suggested Modifications of the Laws of Land and
Maritime War — Flight and International Law generally
— Contraband of War at Sea — Aircraft and Armistices
--Flags of Truce and Military Occupation — The Des-
truction of Enemy Property — The Seizure of Private
Materiel and Indemnities therefor . . . .103
XIII. Isolated Enemy Airmen and Attacks by Non-military
P"p^nti£tr; Airrrrft Pnjj^ — The Law of Land War —
Aircraft Rluffe'Tvkea^ ther'e is Invasion— Aircraft Raids
ihen there is no Invasion .... 109
APPENDICES
Appendix I — Code proposed by the writer of this book . 114
Appendix II — M. Paul Fauchille's Project of a Convention
for Aerial Law, with notes, in square
brackets, explaining the references to the
various Conventions, etc. . . .122
APPENDICES ix
I'AOE
Appendix III — Code proposed by M. Edouard d'Hooghe,
President of the International Juridical
Committee of Aviation . . . 140
Appendix IV — Code proposed by Professor L. Von Bar, of
Gdttingen ..... 143
Appendix V — Rules adopted at the Session of 191 1 of the
Institute of International Law ; and Extract
from the Report of the Committee on
Aviation of the International Law Associa-
tion . . . . . .145
APPENDIX VI — Code proposed by M. Le Moyne . . 147
Appendix VII — Hague Convention respecting Bombardment
by Naval Forces in Time of War ; and
Articles of the Hague Reglement relative to
Bombardment in Land War . . 149
APPENDIX VIII — Belligerents and Neutral Wireless Installa-
tions—Extracts from the Hague Conventions
on Neutrality in Land and Maritime War . 152
APPENDIX IX — British Aerial Navigation Acts, 191 1 and 1913,
and Extract from the British Army Act . 1 54
APPENDIX X — "Precis" of the Franco-German Agreement
as to the admission of German Aircraft to
France and of French Aircraft to Germany. 166
AIRCRAFT IN WAR
AIRCRAFT IN WAR
INTRODUCTORY
The Coming of the Aircraft of War
The fighting aircraft has, beyond all question, arrived
and come to stay. The extraordinary development
of the power-propelled aeroplane and, to a smaller
degree, of the dirigible airship, within the last few
years, has removed the question of aerial war from the
subordinate place which it occupied when only wind-
propelled, non-dirigible balloons were used as auxili-
aries of armies (as they have been, off and on, since
1794) and has given it a prominence and importance
which demand for it special consideration and independ-
ent treatment as a domain of war law. Tripoli,
Mexico, and the Balkans have already seen aeroplanes
employed in actual hostilities ; all the great nations
have used them in the war training, exercises, and
manoeuvres of their armies and fleets. One can
hardly doubt that, unless some totally unexpected
factors come into operation, the science of war and the
science of flight have in our days formed an alliance
which will outlast our generation and will in all
probability endure as long as war itself.
R
2 AIRCRAFT IN WAR i
The Impossibility of securing Finality of Rnles
All the questions connected with the use of aircraft
in war are new and constantly changing with the
progress of flight. The variation in the efficiency of
flying craft and their capabilities necessarily affects
the finality of any rules which are proposed for
application to them. In the crowded years since
the Wright brothers made their biplane gliders, one
has seen, in the span of a boy's life, the coming and
passing of a hundred types, triplane, biplane, mono-
plane, waterplane, seaplane, flying-boat, supermarine,
machines with front elevator and without, those with
warp control and those with ailerons, with tractors
or with propellers, with planes in alignment or set
back, with planes staggered or superimposed, with
stationary engines or rotary, with air-cooled engines or
water-cooled, with fuselage members of ash, of silver-
spruce, or of steel, with high-powered engines and
small plane area, with low-powered engines and big
planes, with the expression of a thousand different
conceptions of shape, arrangement, lift, resistance and
power. It is a far cry from the uncouth hencoops
of flying machines which made history in 1908 and 1909
to the modern Avro, Sopwith, Blackburn, or Bristol,
or the all-steel Vickers, Voisin, or Clement-Bayard of
to-day. And the end is not yet. So far the aeroplane
has developed along the lines of land service types.
Now it seems that the sea is taking it in hand and
is transform iner it into something- rich and strange in
the shape of the British seaplane. When will Finis
be written to the last chapter of the marvellous story
of the rise and progress of flight ?
INTRODUCTORY
The Legitimacy of Aerial War
To question the legitimacy of the use of aircraft in
war is simply to plough the sand. The jurists who
demanded the total prohibition of the new arm, at the
Madrid Session of the Institute of International Law
in 191 1, were treading the same futile path as the
Pope who issued the bull against the comet. One is
bound to reckon with actuality even in academic dis-
cussions. How far some members of the Institute
were from the safe ground of hard fact, may be
judged from the words with which one of the oppo-
nents of the employment of war aircraft prefaced his
remarks. " I regret very much," said one of the
jurists, " that the progress of science has made avia-
tion possible." This view goes far beyond the
Chevalier Bayard's denunciation, many centuries ago,
of the then newly invented musket — an invention ol a
purely destructive character and obviously less adapted
than the aeroplane for use in peace. The introduction
of steam transport by land and sea three-quarters of a
century ago must have aroused similar misgivings in
conservative minds, which could not see how civilisa-
tion would be benefited by the discovery of the new
means of travel.
However jurists may argue, the prohibition of the
use of aircraft in war appears nothing more or less
than a beautiful dream. Can anyone, having in view
the mine, the torpedo, the shrapnel-shell, or remember-
ing what happened at the great redoubt of Borodino,
the Bloody Angle at Cold Harbor, or 203 Metre! 11 ill
at Port Arthur, or how the Petropaulovsk was blown
B 2
4 AIRCRAFT IN WAR i
to eternity in a few seconds, in 1904, condemn aircraft
on the score of inhumanity as compared with existing
engines of war ? And, even if their employment for
destructive work is forbidden, what practical possibility
is there of restricting them solely to scouting and
reconnaissance purposes ?
The proposal made at Madrid in 191 1 to allow
their use for the latter purposes only is unrealisable
and chimerical. Is a scout not to be fired upon by
the troops whose movements he is observing, solely
because he watches them from three thousand feet up ?
And, if he may be fired upon, can he be expected
not to retaliate ? Again, if the aerial scouts of one
of the belligerents meet an enemy airman-scout, are
they tactfully to ignore his existence and retire ? x The
fate of a campaign may depend on their preventing
the enemy scout from returning to his base ; are they
to be bound by a paper rule to let him go without
any attempt to stop him ?
Impracticability of Prohibiting the Use of Aircraft
One must, willingly or unwillingly, accept as given
and basic the facts of the case ; and the facts of the
case are that the path of the air has now been opened
for man's passage as well as the paths of the land
and the sea, and that every civilised nation has given
unmistakable proof that it regards that path, like the
1 There does not appear to have been any instance as yet of the
encounter of opposing aircraft in war, although both the Bulgarian and
the Servian armies contained formations d'ae'rostiers ; see Lt.-Colonel
Immanuel, La Guerre des Balkans (Paris, Charles- Lavauzelle, 19 13),
Vol. I. pp. 58 and 70.
i INTRODUCTORY 5
others, as open for the march of its forces of offence
and defence. To limit aircraft to observation work
alone is quite impracticable, and it is idle to suppose
that the Powers will accept a self-denying- ordinance
proscribing- the employment of aircraft generally in
war. It is indeed questionable whether it is in the
interests of civilisation and progress that they should
do so ; as to the likelihood of their doing so, there
should be no question nor misunderstanding whatever.
Armies and fleets will never surrender the right to use
such an enormously effective and important means of
observation and intercommunication as the present-
day aeroplane constitutes. The St. Petersburg De-
claration of 1864, as to explosive bullets, and the
Hague Declarations as to expanding bullets, asphyxi-
ating gases, and the discharge of projectiles from
balloons (as to the last of which more will be said
later) 1 form no proper precedent to justify the claim
that aircraft could or should be banned as a weapon of
war.
The Declarations referred to are concerned with
particular weapons or methods of attack which are
minor and non-essential elements in the armoury or
methods of war. Success or failure in war can never
hang on the use of soft-nosed or elephant bullets, or
of deleterious gases ; and the jettison of bombs from
balloons before 1905, when the Hague Declarations
of 1899 on the subject expired (the later Hague
Declaration is a dead-letter), was never a matter of
supreme importance in deciding the late of campaigns.
But the use of aircraft may change the whole lace of
war. No such potent instrument for piercing and
1 See pp. 30 34.
6 AIRCRAFT IN WAR i
dissipating the "fog of war" has ever been placed in
the hands of commanders. Secrecy of movement and
suddenness of stroke have always been arcana
vincendi. " Always mystify, mislead, and surprise your
enemy," was a maxim of Stonewall Jackson's. He
practised what he preached : witness the Shenandoah
campaign, when he left Banks, Shields, McDowell,
Fremont " the Pathfinder," amazed, bewildered, out-
generalled by his unfathomable strategy. The great
success of Napoleon's Italian campaigns was due to
the unexpectedness and rapidity of his appearance on
the front of his adversaries. The value of aerial scouts
in discovering and reporting the enemy's position and
intentions requires, in truth, no demonstration.
Is it probable that, with such help available, for air-
craft will continue to be used in peace, even if banned
in war, and there will always be civilian aircraft to be
impressed, a commander will hesitate to use it, or that
the military opinion of the world will accept the pro-
hibition of a means of information of such extraordinary
value ? The test of the legitimacy of any engine of
war is, in the end, its effectiveness ; if the results
which it achieves are sufficiently great to be regarded
as justifying the incidental suffering of its victims, if its
"bag" is large enough, then the conscience of the
world has no difficulty in approving its use. Hence
shrapnel and torpedoes are allowed, while expanding
and exploding bullets are condemned, as were also
bomb-dropping balloons when their use was not con-
sidered as of any military importance. There is
neither any probability, nor indeed any really strong-
reason, for denouncing the employment of aircraft as
an arm of war.
i INTRODUCTORY 7
The Development of Flight helped by its Adaptation
to War
However one may deplore war and the necessity for
war, it may be that the world will benefit in the end
through the use of aircraft for hostilities. The creat
speed, strength, and reliability of the best modern
flying machines are most unquestionably due in no
small degree to the association of flight with the
military science. Flight owes a heavy debt to naval
and military airmen and to the War Departments
and Admiralties of the progressive nations. Neither
the daring experiments of the service flyer nor the
open purse of his Government would have been
available to help in encouraging and perfecting flight
if the young science had not held out the promise of
huge possibilities for purposes of attack and defence.
The result has been, not only the actual pecuniary
help which private enterprise in the design and
manufacture of aircraft has received in the shape of
Government orders, but also the opportunity for a
wider and more exhaustive range of experiment. The
work down by such Government factories as those
at Farnborough and Chalais Meudon, which would
hardly have come into being but for the adaptation
of aircraft to hostilities, has undoubtedly been of great
service in the development of flight ; for whatever be
the shortcomings of State-controlled manufacture and
design, one finds in such work at least the absence
of the commercial factor, of the competition and hustle
of business life, and the presence of that leisureliness and
thoroughness which it is difficult to secure in industrial
undertakings working for a profit. If, as some think,
8 AIRCRAFT IN WAR i
flight eventually kills war — and everything that brings
nations closer makes for that end — it will at least be
chargeable with ingratitude to an ancient ally and
former helper.
Hozv Aircraft will be Employed in War
It may be safely taken, then, that aircraft have
secured a firm and lasting foothold in war. How
exactly will they be used by commanders ? First and
chiefly, as scouts : the service of information will be their
special and most important role} They will also be
used for the transmission of messages, for maintaining
intercommunication between columns and armies, for
carrying staff-officers, for observing the effects of
artillery fire,' 2 for locating submarines and mines.
Bomb-dropping or immediately destructive work of
other kinds will also certainly be part of their duties, on
account not only of the material damage caused but
1 In a lecture at the Royal United Services Institution on 15th
November, 191 1, Major (then Capt.) C. J. Burke, Royal Flying Corps
(then Air Battalion), pointed out, very truly, that aircraft would be likely
to prove a greater asset to French than to German strategists. The
German doctrine of war lays down a system of enveloping attack, of
driving in the enemy's front, flanks, rear, if possible, by weight of numbers,
of overwhelming him by hard and relentless fighting at all points.
French strategists, on the other hand, prefer to manoeuvre first and
thereby to discover the enemy's weakness, to hold him at many points
but to concentrate the main effort on one and to throw upon that point,
when found, the mass of the available troops. It is obvious that a know-
ledge, such as aerial scouts can supply, of the enemy's dispositions and
strength, will be more advantageous to a commander of the French
school of war than to one of the German.
2 Colonel Bernard, the French Artillery expert, has stated that "two
batteries and one aeroplane are five times more redoubtable than three
batteries without an aeroplane."
i INTRODUCTORY 9
also of the moral effect of such a method of
attack. 1
For the present a secondary role, bombarding seems
bound to become in time as usual and important a part
of the duties of the military airman as reconnaissance is
to-day. Already the German Zeppelins can carry a
ton and a half of explosives, and the carrying capacity
of aeroplanes is being increased daily. In gold's tanks
held 136 gallons of petrol in his great flight of 1,300
miles, and an entrant for the trans-Atlantic aerial
journey even proposes to carry 400 gallons. Soon
one will see in existence aeroplanes able to lift and to
discharge with safety weights of explosives which
could destroy a Dreadnought. 2 For all purposes of
war the aeroplane seems destined to surpass the
dirigible ; the latter's chief advantages at present — its
greater lifting power, its hovering capacity, and its
ability to travel in the darkness — are not likely to
remain unchallenged long by the heavier-than-air
machines. When the latter become really auto-
matically or inherently stable, when they are able to
travel dead slow and to work at night, and when they
1 A further use to which aircraft can be put was illustrated at the
recent siege of Adrianople. The Bulgarians employed an aeroplane to
drop into the city a large number of notices, written in Turkish, informing
the citizens of the uselessness of further resistance and advising them to
surrender (Gustave Cirilli, Journal du Siege (VAndrinople, p. 56).
Similar notices were fired into Port Arthur from a wooden mortar by the
Japanese in 1904 (Ariga, La guerre russo-japonaise, p. 265), and one may
expect to see a repetition of the Bulgarian experiments in future sieges.
2 Indeed, existing aeroplanes of certain types already weigh, fully loaded,
as much as a powerful touring motor car. The Grahame White biplane,
on which K. ( air won the British Empire Michclin Cup in November, 1913,
weighed 3,000 lbs., all in, and the new Short seaplane (160 H.P. Gnome),
with wireless plant, full petrol, and oil tanks, and two airmen, weighs
about the same.
io AIRCRAFT IN WAR i
are capable of carrying at least a few hundredweights
of dynamite, their use for destructive raids is bound to
become of very great importance.
Raids by Bomb-dropping Aircraft
There is something which holds the imagination in
the thought of raids by destroyers of the air. Mr.
H. G. Wells has lately painted a vivid picture of the
wholesale destruction of capital cities by aeroplanes,
driven by atomic engines and discharging atomic
bombs. The unimaginative writer is naturally more
cautious in forecasting- the future of aerial war. It is
unlikely that civilised nations will ever wreck one
another's purely residential and commercial cities.
But judging by what has actually happened in past
bombardments by land and sea, by the fate of Strass-
burg, Soissons, Verdun, Montmedy and other towns,
one is justified in assuming that aircraft will be within
their war rights in dropping dynamite even on the
non-defended parts — the civilian quarters— of cities
which are defended at other points. They will not be
bound to confine their attacks to the perimeter of forts.
In practically every siege in modern times the guns of
the besieging force have been turned on the town as
well as on the defences. The evidence is supplied by
sieges in which the troops, not of Germany only, but
of Great Britain, Japan, and the United States have
been the assailants. 1 " No legal duty exists," says the
1 The modern precedents, from actual warfare, are collected at pp.
158-166, War Rights on Land. Adrianople, though "protected" by a
girdle of forts, suffered severely in the bombardment by the Servians and
Bulgarians, 1912-13 ; see G. Cirilli, Journal du Siege dAndrinople,
pp. 96-104, 141-3.
i INTRODUCTORY n
British official manual on Land Warfare, "for the
attacking force to limit bombardment to the fortifi-
cations or defended border only. ... A town which is
defended by detached forts, though they are at a
distance from it, is liable to bombardment, for the
town and forts form an indivisible whole." It is
unlikely that any different rule will be followed in
aerial attacks on defended cities.
Aerial Attacks on Undefended Cities
The question of aerial attacks on undefended cities
is a more difficult and complex one. It was raised
lately in a very interesting lecture delivered at the
Royal United Services Institution by Colonel L.
Jackson, late R.E., and his remarks attracted so much
popular attention, as indicated by comments and cor-
respondence in the Press, that I make no apology for
dealing with the matter at some length. Col. Jackson
stated that, in the wars of the future, aircraft would
drop bombs on coast batteries, dockyards, magazines,
and stores, ammunition factories, oil reservoirs, wireless
stations, and great centres of population. " If a Geneva
[Hague] Convention were sitting now," he said, "and
the point were to be raised that a capital which is
easily accessible to the enemy may claim exemption
from attack on the ground that it is unfortified, would
not the answer be, 'Yes, provided that it is prepared
to submit and not offer resistance to the enemy's armed
forces'? And whether the armed force takes the
form of troops ready to advance or of the power to
destroy resistance by attack from the air, the principle
is the same. Can any student of International Law
12 AIRCRAFT IN WAR i
tell us definitely that such a thing as aerial attack on
London is outside the rules ; and, further, that there
exists an authority by which the rules can be enforced ?
It seems to me that we cannot help accepting the fact
that, in three years or less, 1 London will be exposed to
the form of attack I have indicated." In the discussion
which followed the lecture, General D. Henderson, the
chairman, expressed the view that " to sail an airship
over London and to drop bombs here and there would
be quite opposed to the ethics of warfare as we at
present understand them," and this view was supported
by Professor T. E. Holland in a letter, referring to
Col. Jackson's lecture, which appeared in the Times of
27th April, 1 9 14. Prof. Holland pointed out that the
Hague Convention, No. IV. of 1907, i.e., the Con-
vention to which the Reglement dealing with the
conduct of land warfare is an annexe, forbids the bom-
bardment of undefended towns par quelqtie moyen que
ce soit, and that the words italicised "were inserted in
the article deliberately and after considerable discussion
in order to render illegal any attack from the air upon
undefended localities ; among which I conceive that
London would unquestionably be included." 2
Prof. Holland, in a subsequent letter, modified his
view as expressed above. Col. Jackson had, in
the meantime, raised the question, also in the columns
of the Times, " When is a town ' not defended'?" " I
presume," continued Col. Jackson, "when it submits
1 Col. Jackson anticipates such a development of the aerial power of
France and of Germany within the next three years that each of these
countries will by then have fleets of 40 or 50 airships, with a carrying
power of 40 tons, a speed of 60 miles, and a range of 1,500 miles.
2 The Articles of the Hague Reglement relative to Bombardment in
Land War are given in Appendix VII.
i INTRODUCTORY 13
without any opposition to the authority of the enemy
. . . . I will put an extreme case. The commander
of an enemy's war-balloon might arrive over London
if unopposed and signal, as a matter of courtesy, ' I am
going to drop explosives.' We answer, ' You cannot
drop explosives, we are not defended.' The com-
mander replies, as it seems to me quite logically, 'Then
you surrender. Good. You will now obey orders.'
. . . . The new factor in warfare will shortly make a
direct attack on London possible within a few hours of
the declaration of war. The Hague Convention as
worded does not appear to provide an adequate safe-
guard."
Professor Holland's View
The reply of Professor Holland (in the Times of
May 5th, 1914) was virtually an admission that the
question is an open one. He begins by referring
again to the Hague rule, and then continues: —
" So far good ; but further questions arise, as to
which no diplomatically authoritative answers are as
yet available ; and I, for one, am not wise above that
which is written. One asks, for instance, what places
wee. prima facie 'undefended'? Can a 'great centre of
population ' claim this character, although it contains
barracks, stores, and bodies of troops ? For the
affirmative I can vouch only the authority of the
Institut de Droit International, which, in 1896, in the
course of the discussion of a draft prepared by General
Den Beer Poortugael and myself, adopted a statement
to that effect. A different view seems to be taken in
the German ' Kriegsbrauch,' p. 22. One also asks : —
Under what circumstances does a place, prima facie
' undefended, ' cease to possess that character? Doubt-
less so soon as access to it is forcibly denied to the
1 4 AIRCRAFT IN WAR i
land forces of the enemy ; hardly, to borrow an illus-
tration from Colonel Jackson's letter of Thursday last,
should the place merely decline to submit to the
dictation of two men in an aeroplane."
It appears, therefore, that of the premises to which
the answer to Col. Jackson's question — (Is London
liable or not liable to aerial attack ?) — should provide
the conclusion, Prof. Holland has a definite reply to
the major only, not to the minor. He answers that an
undefended city is not liable to bombardment, but he
cannot state authoritatively that London would be
looked upon as an undefended city. Therefore, he is
unable to give any firm ruling as to London's liability
to aerial attack.
Most students of International Law will, I think,
share Professor Holland's doubts as to London's
security, though they may not arrive at his conclu-
sion by exactly the same process of thought. Prof.
Holland, it will be observed, regards the question as
being governed by Article 25 of the Hague Reglement
("The attack or bombardment, by any means what-
ever, of undefended towns, villages, dwellings, or
buildings, is forbidden "). The obvious objection
arises that this rule is a rule of land warfare and
might be held not to apply to bombardment by sea-
planes or by dirigibles attached to a fleet. But as the
same rule, except for the omission of the words " by
any means whatever," of which omission a civilised
belligerent would be unlikely to take advantage,
appears in the Convention on Naval Bombardments,
one may waive the objection when considering the
bearing of the Article, taken by itself, on the point
under discussion.
i INTRODUCTORY 15
Bombardment of Occupied, but not Defended, Cities
Does the Hague (land war) rule, then, cover the
bombardment of a city which, though not defended,
is occupied by troops, as one must anticipate that
London, with its many barracks, would be even after
mobilization ? Apart from the evidence of the literal
wording of the Article, which says "undefended," not
"unoccupied by troops," the only authority which
Prof. Holland can quote is the view of the Institute
of International Law as expressed at its session of
1896. That view has no official authority, the Insti-
tute being a wholly unofficial body of international
jurists, though, from the eminence of its members, its
pronouncements are always entitled to respect. Against
it must be set the much more instructive and important
provisions on the subject of the British and German
official manuals for the guidance of troops in war.
Both recognise the belligerent's right to bombard
towns which are occupied, even though not actually
defended. The British Manual (" Land Warfare,"
§ 1 19) is especially explicit. "The defended locality,"
it states, "need not be fortified [to justify bombard-
ment] and it may be deemed defended if a military
force is in occupation of or marching through it."
The view expressed in the British Manual was put
forward in War Rights on Land, which was written
before the official manual appeared (the old manual —
edited by Prof. Holland — was silent on the point), and
was criticised by a very able reviewer as being
contrary to the Hague Rcglement. I submit, never-
theless, that it is the only possible view. A belligerent
is entitled to seek out and destroy the armed forces of
1 6 AIRCRAFT IN WAR i
his enemy wherever found. If they choose to take up
position in a crowded city, he cannot be prevented
from attacking them there because to do so would
cause damage to buildings and property ; and he
cannot be forced, because of his enemy's action, to lay
his artillery aside and resort to the costly tactics of
street-to-street fighting to clear the other troops out of
the city. Were it otherwise, an army threatened with
destruction could escape by simply retiring into a large
city, which would thus have attributed to it a power of
sanctuary extending beyond even that attributed to
neutral soil. There are historical precedents for the
shelling of occupied, though not " defended," towns,
and I do not think that they were cases of belligerents'
exceeding their war rights.
It seems to me, therefore, that a belligerent would
be justified as interpreting "undefended" in the Hague
rule as meaning " not occupied by troops or otherwise
in a position to offer armed resistance, "and that such a
city as London cannot rely for immunity against attack
on Article 25 of the Land War Regiement or on the
corresponding Article 1 of the Convention on Naval
Bombardments.
Bombardment of Military Stores in Undefended Cities
If one approaches the question in a rather different
manner, one finds the case against London stronger
still. In the Convention on Naval Bombardments,
one finds a provision that, though undefended ports,
towns, etc., may not be bombarded, any military
works, establishments, depots of arms, or material,
workshops, or plant which can be utilised for the needs
i INTRODUCTORY 17
of the hostile army and fleet, which happen to be in
such ports or towns, may be destroyed by artillery,
"after a summons followed by a reasonable interval of
time, if all other means are impossible, and when the
local authorities have not themselves destroyed them
within the time fixed." The commandant incurs no
responsibility for any damage resulting from such a
bombardment. Furthermore, it is recognised expressly
that des ne'cessite's militaires, exigeant tine action im-
mediate may make it impossible to grant any delay,
and in such a case the commander must take all due
measures to ensure that the town may suffer as little
harm as possible. The text of the Naval Convention
is given in Appendix VII., as are also the Articles of
the Reglement relative to Land Bombardments.
This Convention, it will be seen, differs from the
Land War Reglement in subjecting the prohibition of
the bombardment of undefended towns to a very
important proviso. The reason for the modification is
given in the Blue Book which contains the Protocols
of the Second Peace Conference (Cd. 4081, 1908).
Usually, a land commander would have no need to
resort to bombardment to destroy any military works
or depots in an undefended city ; he could, for instance,
send in a force to destroy them. But it is different
with a naval force ; the commander might find it
impossible to spare a landing party, or he might have
to withdraw rapidly, and therefore he is allowed a right
ol long distance destruction which is denied, or at least
not expressly granted, to a land commander.
1 lie reasons for which this right was <>iven to naval
commanders appear to me to apply equally or with
greater force in the case of attack from the air. The
c
1 8 AIRCRAFT IN WAR i
impracticability of landing to carry out the destruction
and the possibility that a hurried withdrawal on the
part of the attacking force, owing to the feared arrival
of a hostile body, may be necessary, are even more
clearly existent in an aircraft than in a warship raid.
It seems to me, therefore, that the rules of the Naval
Bombardment Convention will be applied to aerial
bombardment. M. Fauchille and M. d'Hooghe (to
anticipate a little) make the rules of either the Land
or Naval Bombardment Convention applicable to air
attacks: which means that an aerial commander would
have the same right as a naval commander to destroy
military storehouses in an undefended city at long
range. It is practicably certain that the maritime rules
will govern bombardments by seaplanes or dirigibles
attached to the sea service, and it is extremely unlikely
that a different set of rules will be framed for land
types.
I think, therefore, that a raiding aircraft force would
be entitled to drop bombs on the various depots, etc.,
which are referred to in Article 2 of the Convention
on Naval Bombardments, and that such a force, even
more than a naval force, would be able to justify dis-
pensing with any warning of the intended attack and
with the granting of any respite before it is delivered.
The fuel tanks of aeroplanes and even of dirigibles
are of limited capacity, as compared with warships'
coal bunkers, and every moment an aircraft is under
power and in the air lessens its radius of action.
Moreover, the locality of any force of the enemy's
aircraft which might come to the threatened town's
assistance would be still more difficult to fix than the
locality of his warships, which could in any case only
i INTRODUCTORY 19
move at one-third or one-fourth of the speed of an
aerial force. Rapidity of action will be absolutely
essential to the success of an aircraft raid. One must
expect sudden and unexpected strokes from these
destroyers of the air.
Buildings^ etc., which rnay be Bombarded
The exact limits of a belligerent's right of destruc-
tion under the Naval Convention are not very clearly
defined. The phrase, Ateliers et installations propres
a etre utilise' s pour les besoms de la fiotte ou de r amide
ennemies, is especially wide in significance. Dr. Pearce
Higgins says : ' " The word ' installations ' was adopted
to cover such works as are not solely for warlike
purposes. An undefended coast town may be an
important railway centre, or have floating docks of
great value for the repair of vessels ; these are
intended to be included under ' installations.' The
word ' provisions ' was inserted in one of the drafts,
but ' materiel de guerre,' an extremely wide term, was
ultimately substituted. This Article might, and pro-
bably will, be held to confer a right on a commander to
destroy by bombardment railway stations, bridges,
entrepots, coal stacks, whether belonging to public
authorities or private persons." Any considerable
stocks of fuel oil, or petrol, the workshops of con-
tractors who supply the Army or Navy with stores or
material of any kind, great warehouses in which stocks
destined for the services are stored before purchase,
the workshops or yards of firms manufacturing aircraft
or the parts and accessories of aircraft, aeroengines,
steel-tubing, propellers and other component parts,
1 The Hague Peace Conferences (1909), \>. 355.
c 2
20 AIRCRAFT IN WAR i
might be added to Dr. Higgins's list. Private flying
schools would also probably be bombarded, the justifi-
cation being that destroying them would deprive the
enemy of a means of training airmen for service in
the war.
London s Liability to Aerial Bombardment
London, it is hardly necessary to point out, contains
within its vast area some of the possible targets of
attack referred to in the above paragraph. If the
rules of the Naval Convention apply (as they probably
will) to air bombardment, then I can see nothing in
International Law to prevent an hostile aircraft force
from dropping bombs on Chelsea, Wellington, Albany,
or Knightsbridge Barracks, or on the Clothing Factory
or Depot at Pimlico, or on Euston, King's Cross,
Waterloo, and other great railway termini. Many
commercial undertakings which hold orders for the
War Department or Admiralty would be liable to
bombardment also. So, probably, would be the War
Office and Admiralty, and the headquarters of the
Eastern Command and the London District. 1 The
various Territorial Force headquarters all over London
also appear possible legitimate objects of attack.
If it is argued that, for humanitarian reasons, a
belligerent (a naval commander, at any rate) would
1 " Now, suppose that . . . the town contains government stores or
factories, or important government offices from which orders relating to
the war are issued. These are things exposed to lawful destruction, and
cannot claim to be spared because in the circumstances they can be
destroyed only by fire from the sea, but the enemy is bound to take care
that he does no avoidable damage to life or to innocuous property. This is
the justification ... of the opinion which has been given by a large
number of international lawyers of all countries that the government
offices at the Hague, which is virtually a coast town, might be bom-
barded." — Westlake, International Law, Part II. p. 77.
i INTRODUCTORY 21
refrain from exercising his right of bombarding a great
commercial city, one has merely to point to the events
of recent military history to refute such a plea. Not
only have the commanders of besieging forces shown
themselves indifferent to the loss and suffering caused
by their cannonade to the civil populations of defended
cities, as the terrible bombardments of Strassburg,
where 10,000 people were made homeless, and of
other cities in 1870, prove; but there are cases in
which undefended cities have been grievously damaged
by shells directed against Goverment stores therein.
Genitschi and Taganrog were bombarded in the
Crimean War because they refused to surrender such
stores, and very great damage was done to private
property in both cities. Indeed, the Naval Convention
makes it clear that an assailant is justified in hardening
his heart against any feelings of sympathy with non-
combatant residents in cities containing military depots
and store-houses which he is entitled to destroy. The
sufferings of these residents are but an unfortunate
incident of the execution of an approved act of
hostilities and complaint is useless. International Law
enjoins respect for the lives and property of pacific
citizens in war time, but it recognises that war is
war and that non-combatants may have to suffer when
they or their property are unlucky enough to be near a
scene of operations or military stores and plant which
the enemy has a clear war right to destroy.
How London may be Safeguarded
Still, when all is said, to bombard .i city like
London from the air would undoubtedly bean extreme
22 AIRCRAFT IN WAR i
and unprecedented act of belligerency. Certain portions
of London are, as I hold, liable to bombardment — the
portions, that is to say, in which troops are stationed,
or in which military stores are held, or in which there
are ateliers et installations, public or private, which
supply the armed services ; yet a foe would probably
shrink from exercising his right of destruction. One
deterrent would be, as General Henderson pointed out
in the discussion on Colonel Jackson's paper, the odium
to which such an act, though legitimate, would give
rise. For, although the cases which I have quoted
above show that large cities have been roughly handled
in many cases by assaulting belligerents, it is a very
different thing to set a new precedent in fighting and
to carry on the tradition of years. The custom of war
is very largely merely a record of what has been the
actual practice of commanders. The first leader who
fired into a tall city not only made, actually, round-shot
(or whatever it was that he rammed down the muzzle
of his primitive, unrirled ordnance), but also, meta-
phorically, a small snowball of precedent which has
gone on growing larger and larger and more difficult
to dissolve ever since his day. A belligerent who
took the initiative in bombarding a great modern city
from the air would do well to consider whether his own
cities were surely guarded from a similar method of
attack. Aerial bombardment might, of course, be
attempted by a very ruthless enemy who was confident
of his ability to defend his own cities. To guard
against the danger threatened from such a foe, three
courses appear open. First, it might be possible to
frame an International Convention declaring great
mixed agglomerations of population immune from
i INTRODUCTORY 23
aerial attack, even though garrisoned and containing
establishments, installations, etc., which it would be
legitimate to bombard in naval war. Secondly, all
barracks and garrisons, and all stores and factories,
public and private, of war material and supplies, might
be removed from such cities, and any railway termini
within their area converted into underground stations.
It is probable, in any case, that in a few years maga-
zines, fuel tanks, and important stores of munitions
will be universally subterranean. Thirdly, the national
defences against aerial attack, anti-aircraft artillery and
aerial destroyers, armoured and armed, might be made
so efficient and powerful that no foe would venture to
attempt a raid.
The Sanction of International Conventions
It is, of course, possible that an International Con-
vention might not be respected by an unscrupulous
belligerent, and that even if London were declared
immune, it might still be bombarded in contravention
of the solemn agreement. What is there to prevent
this? It is true that, as General Den Beer Poortugael
said, "the law of nations has not fleets nor armies to
make itself respected." But it has a sanction, never-
theless. For one thing, no clear breach of the written
or unwritten laws of war is passed over in silence in
these days. Retribution follows assuredly in a lessened
respect for the humanity and civilisation of the offend-
ing nation's statesmen and troops in the community of
powers. National reputation is an asset that is highly
prized by modern States north of the Danube. A
country does not lightly throw away its fair fame as a
24 AIRCRAFT IN WAR i
gallant and scrupulous belligerent and its reputation
for waging clean and honourable war. Still stronger
is the other sanction — the certainty that reprisals will
follow if the injured Power is strong enough and deter-
mined enough to avenge itself. The destruction of
London by a belligerent who had bound himself to
respect it would be only the first scene of a tragedy.
The second would be played by the guns of the British
fleet and the bombs of the British seaplanes. A belli-
gerent who breaks international agreements or the
laws of war when it suits his purpose, is really sowing
the wind to reap the whirlwind.
Nature of the Questions which Arise
Many other questions than that concerned with the
war right of bombardment are raised by the employ-
ment of aircraft in war. How will military aircraft be
distinguishable from non-military ? A distinction is
necessary, because a commander is entitled to know
who are his armed enemies and who are unarmed non-
combatants, whether on land or sea or in the air.
Will the crews of military aircraft be required to wear
uniform or other distinguishing marks ? Will aircraft
belonging to private individuals of enemy nationality
be confiscable, as enemy merchant-vessels are at sea,
or will they be immune like private enemy property,
generally, on land, or will they, finally, be classed with
the private property which an invader may seize to
prevent his enemy from making use of it, but which
he must restore at the peace ? What will be the rules
as to private aircraft attempting to enter or leave a
blockaded port or a besieged town ? Under what
i INTRODUCTORY 25
circumstances, if any, will it be permissible to shell
private aircraft ? What will be the criterion of spying
bv aircraft ?
Then there is a series of important, and difficult,
questions relating to neutrality. Will belligerent air-
craft be allowed to fly across neutral territory ? Will
they be entitled to land therein, or to enter neutral
ports if proceeding by a sea route ? Will a neutral
State have to forbid its airmen to enter belligerent
atmosphere ? May a neutral State sell its obsolete air-
craft to the War Department or Admiralty of a
belligerent Power ? May neutral contractors — private
individuals or firms — do so, without infringing their
country's neutrality ? Will the Alabama rule be applied
to aircraft, and will a neutral Government be bound to
prevent dirigibles or aeroplanes, intended to be used
in the war, from being dispatched from its territory
or coastal waters, even as a commercial venture ?
Will rules be necessary as to contraband, " visit," and
prize-courts ? Will a belligerent who invades enemy
territory, and finds therein aircraft which are the
property of neutral nationals, be entitled to seize them ?
Will he have any right to seize aircraft dispatched on
the wing from a neutral contractor's workshops to the
enemy country ?
Arrangement of the Book
The great question of the freedom or sovereignty of
the air, must be dealt with before the others arc taken
in hand. On the answer to tin's question depends the
solution of another vexed question, namely, whether
entry of neutral atmosphere by belligerent aircraft is
26 AIRCRAFT IN WAR i
permissible or not. Before approaching these
problems, it is desirable to state clearly the existing
provisions of the Conventions and Declarations
regarding aircraft, and to glance briefly at some of the
projected codes.
In the Appendices are given the code proposed by
me, some codes suggested by French and German
jurists, the rules approved by the Institute of Inter-
national Law, and the International Law Association,
some extracts from International agreements, British
legislation affecting aircraft, and a prdcis of the Franco-
German agreement as to the admission of German air-
craft into France and of French aircraft into Germany.
II
REFERENCES TO AIRCRAFT IN THE HAGUE LEGISLATION
Flight Practically Non-existent before Hague Con-
ferences
When the first Hague Conference sat in 1899,
flying, as we know it to-day, was non-existent. The
father of modern flight, Lilienthal, had made successful
gliding experiments in 1889, and work on the lines
opened up by him was carried on during the " 'nine-
ties " by Pilcher in England, by Chanute in America,
and by Ferber in France. The glider was the embryo
of the heavier-than-air, power-driven machine. When
the brothers Wright took it in hand, "the thing became
a trumpet " ; their principle of control of stability by
warping the wings was an immensely important
contribution to the development of flying. But their
machines were still considered simply ingenious play-
things of little practical importance even in 1907.
Santos- Dumont, the Brazilian millionaire, who made
another step forward in the march to the conquest of
the air, made his public flight, for the Archdeacon cup,
in October 1906, or the year before the second Hague
Conference (1907); but it was not until Henry Far
man's pioneer flight of one kilometre in January [908,
followed by A. V. Roe's first flight in England, the
27
28 AIRCRAFT IN WAR
ii
Wrights' wonderful successes in 1908 and 1909, and
Bleriot's epoch-making journey from Dover to Calais
in July 1909, that the world awoke to the fact that
men could fly. One is not therefore surprised to find
that the references to aircraft in even the second series
of Hague Conventions and Declarations (1907) are
few and unsatisfactory.
The Hague Legislation
The references are as follows : — •
(1) Hague Declaration of 1907 prohibiting the Dis-
charge of Projectiles and Explosives from Balloons.
"The Contracting Powers agree to prohibit, for a
period extending to the close of the Third Peace
Conference, the discharge of projectiles and explosives
from balloons or by other new methods of a similar
nature.
" The present Declaration is only binding on the
Contracting Powers in case of war between two or
more of them.
"It shall cease to be binding from the time when, in a
war between the Contracting Powers, one of the
belligerents is joined by a non-contracting Power.
" In the event of one of the high Contracting Parties
denouncing the present Declaration, such denunciation
shall not take effect until a year after the notification
made in writing to the Netherlands Government
and forthwith communicated by it to all the other
Contracting Powers.
"This denunciation shall only affect the notifying
Power."
ii THE HAGUE REFERENCES 29
(2) Article 25 of the Hague Regie incut respecting the
Laws and Customs of War on Laud.
"The attack or bombardment, by any means what-
ever, of towns, villages, habitations, or buildings which
are not defended is forbidden."
(3) Article 29 of the same.
" An individual can only be considered a spy if, acting
clandestinely, or on false pretences, he obtains, or
seeks to obtain, information in the zone of operations
of a belligerent, with the intention of communicating
it to the hostile party.
" Thus, soldiers not in disguise who have penetrated
into the zone of operations of a hostile army to obtain
information are not considered spies. Similarly, the
following are not considered spies : soldiers or civilians
carrying out their mission openly, charged with the
delivery of dispatches intended either for their own
army or for that of the enemy. To this class belong
likewise individuals sent in balloons to deliver dis-
patches, and generally to maintain communications
between the various parts of an army or a territory."
(4) Article 53 of the same.
"An army of occupation can only take possession of
cash, funds, and realizable securities, which are strictly
State property, depots of arms, means of transport,
stores and supplies, and generally all movable property
of the State of a nature to be of use for operations <>l
war.
"All means employed on land, at sea, or in the air,
for sending messages, for the carriage of persons
or things, apart from cases governed by maritime
law, depots of arms, and generally, all kinds <>i war
30 AIRCRAFT IN WAR n
material, may be taken possession of, even though
belonging to private persons, but they must be
restored, and the compensation to be paid for them
shall be arranged for on the conclusion of peace."
The Discharge of Projectiles
The provisions at (i) and (2) above are closely
interconnected. One of the Hague Declarations of
1899 prohibited for five years (which expired
September, 1905) the discharge of projectiles or
explosives " from balloons or by other new methods of
a similar nature." At the second Peace Conference
in 1907, the Russian delegation proposed to make
this prohibition permanent, but to limit its application
to undefended towns, etc. The proposal was accepted,
in effect, by the insertion of the words " by any means
whatever" in Article 25 of the Regie ment ; these
words being understood by the Conference to have
special reference to bombardment by aerial forces.
The Declaration was only altered to the extent that,
for the old limitation to five years, was substituted a
period ending with the close of the third (i.e., the next)
Hague Conference. The practical effect of the
Declaration is nil. Though it has been accepted by
Great Britain, the United States, Austria, Belgium,
Bulgaria, Greece, Norway, Holland, Portugal,
Switzerland, and Turkey, it only binds these Powers
in wars between themselves, not in a war with
a non-signatory Power or in one in which a signatory
Power is joined by a non-signatory ; and among the
non-signatory Powers are Germany, Denmark, Spain,
France, Italy, Japan, Montenegro, Roumania, Russia,
ii THE HAGUE REFERENCES 31
Servia, and Sweden. The latter countries reserve the
right to discharge projectiles or explosives from air-
craft against such places as cannot be considered
"undefended." In the late Balkan war, although
Turkey, Bulgaria, and Greece were parties to the
Declaration, they were not bound by its terms because
two non-signatory Powers, Montenegro and Servia,
were engaged in the war. It is probable that the list
of States declining to accept the Declaration will be
swelled still further, after the next Conference, and
that the provision, already moribund, will soon be
quite dead.
Inadequacy of the Hague Provision
Even apart from the reservations made, the useful-
ness of the Hague Declaration is extremely doubtful.
It prohibits absolutely bomb-dropping from aircraft ;
but would that prohibition continue binding if the air-
craft were themselves bombarded from below ? The
Declaration does not say that they are not to be shelled
and it is not in human nature to take blows without
giving them. In effect, the Declaration goes far
beyond the intention of the framers. It takes from
airmen all their power of self-defence ; it does not
restrict their liberty to carry out reconnaissance and
Other work not immediately destructive, but it con-
demns them, alone of all scouts and intelligence
personnel, to run the gauntlet of shot and shell without
having the right to reply. Carried to its logical
conclusion, it almost proscribes the use of aircraft for
even the service of information.
Tint Hague rule quoted at (2) refers only to land
32 AIRCRAFT IN WAR
ii
warfare, as do also those at (3) and (4). The provision
for naval warfare corresponding to (2) — the Hague
Convention on Bombardment by Naval Forces, the
terms of which are given in Appendix VII. — contains
no such implied prohibition of b >mbardment of unde-
fended places from the air : the words " by any means
whatever " having been omitted, probably through
an oversight, from that convention. It is unlikely,
however, that any belligerent would take advantage of
this omission (which will, no doubt, be rectified at
the next Peace Conference) to justify bombarding an
absolutely undefended port. Even as the Convention
stands, a belligerent's war right of bombardment in sea
warfare is wide and unrestricted enough. He can
shell an undefended town, for instance, if it does not
comply with a requisition for supplies ; and he need
not refrain from destroying any workshops, storehouses,
and military or naval establishments because to destroy
them would involve, necessarily, the wrecking of
neighbouring parts of the city. If the city suffers,
it is simply a case of peaceful property being engulfed
in the backwash of war — a contingency which the law
of war recognises and condones. The terms of the
Convention on Naval Bombardment are fuller than
those of the Hague Reglement on the subject, and it is
probable that the former will be applied, so far as
pertinent, to aerial bombardment. I have already
dealt with the question of aircraft raids (see pp. 10-24,
supra) and nothing remains to say here. In Article
10 of my draft code I propose that air bombardments
should be subject to the same rules as Naval bombard-
ments (for which rules see Appendix VII.), but I add a
provision that they must in all cases be approved by
ii THE HAGUE REFERENCES 33
high military authority. There is a precedent for this
in the HaQfue rule which forbids the collection of a
"contribution" in land war except sous la responsabilite
dun gdndral-en-chef. The conditions of air bombard-
ments will be different from land and sea bombard-
ments. If any subaltern or even non-commissioned
officer were at liberty to drop bombs on a town which
refused his requisition for petrol, the door would be
opened to the admission of further aggravations of the
horrors of war. It may be asked — How would the
townsfolk know in any case if the requisite authority
had been given ? They would not know, but, in any
case of wanton bombardment, representation could be
made by their Government to the other belligerent,
diplomatically, and the latter would either disavow his
subordinate's action and promise to prevent recurrences,
or else support it and give reasons. I suggest that the
provision will make for humanity in air warfare.
It will probably be found necessary to add a
provision to both the Naval Bombardment and the
Geneva Conventions to ensure the distinctive signs of
the protected buildings and establishments being visible
from above ; and a sign for night will also have to be
considered. A suggestion was made at Geneva in
1906 that medical units should have special signs for
night, but found no supporters. The aeroplane is still
un oiseau de jour, as M. Clementel described it in his
French budget speech two years ago. But the
dirigible is not ; and dirigibles, which are specially
adapted for bomb-dropping, on account of their greater
carrying capacity and their power of hovering, are all
the more likely to choose the night-time for their
bombardments, because they will llx-n be free from
34 AIRCRAFT IN WAR n
attacks by aeroplanes. 1 " Night work at present,"
said Lieut. Colonel F. H. Sykes, Royal Flying Corps,
in a recent lecture, " lies in the scope of the aeroplane
which can for certain fly for 14 hours with two engines
and fuel for this endurance." Before long, doubtless,
there will be no such limitation to the capability of the
aeroplane, and then one may expect to see nocturnal
attacks entrusted to aeroplanes, too. The moral effect
of a lire continued through the night was seen in Von
Werder's bombardment of Strassburg in 1870.
The Hague Rule as to Espionage
The third of the Hague provisions — Article 29 of
the Reglement — is one w T hich cries aloud for amend-
ment. The last sentence does not deal at all adequately
with the question of air espionage. It dates from the
Brussels Conference of forty years ago, when states-
men's minds were still agitated over Bismarck's treat-
ment of the balloonists captured in attempting to
escape from beleaguered Paris in 1870. It gives no
positive ruling whatever as to espionage from balloons,
though one would expect in an article on espionage
which mentioned balloons to find some light and lead-
ing on the subject ; and balloons have been used in
war since 1794. It merely states that balloonists sent
to carry despatches or to maintain communications are
not spies ; it does not say who are. It is only common
1 The military correspondent of the French Journal des De'bats,
Commandant de Thomasson, stated, in a report on the last British Army
Exercise, reproduced in the Army Review for January, 1914, that a
biplane succeeded in rising above the Delta in six minutes and could
have destroyed her easily in war.
ii THE HAGUE REFERENCES 35
sense to recognise that there can be spying from the
air as well as from the land ; in both cases it is the
false pretence of the individual that constitutes the
offence. If a civilian airman, allowing himself to be
accepted in that character, observes a belligerent's
movements and signals or reports them to the enemy,
or if a military airman covers up his aircraft's service
marks, with the same object, each is a spy. There is
passive dissimulation in the former case, active in the
latter.
The articles which deal with espionage in the codes
of MM. Fauchille, d'Hooghe, and Le Moyne follow
closely the wording of Article 29 of the Reglement.
It seems to me undesirable to transfer the terms of
that very unsatisfactory provision to air law. Even
in its application to land espionage the Hague rule
is lacking in precision. As the first sentence stands
it does not cover the case of the civilian spy who
enters the enemy's lines quite openly, and trusting to
the openness and boldness of his action to disarm
suspicion. That this is not an inconceivable occur-
rence, in the general confusion and frequent misunder-
standings that accompany military operations, the
experiences of many war correspondents prove. There
is strictly no false pretence nor clandestine act in such
a case. The second paragraph of the article is,
apparently, an attempt to mend by expansion the
faulty drafting of the first. It is objectionable, quite
apart from its application to aviation, for in no practical
circumstances can one imagine an intelligent soldier,
sent with despatches through a region held by the
enemy, "carrying out his mission openly," if those
words are taken in their literal meaning. The whole
2
36 AIRCRAFT IN WAR n
article might without loss be remodelled somewhat as
follows : —
" Only persons collecting or attempting to collect
information in the zone of a belligerent's operations
with the intention of communicating it to the adverse
party can be considered suspect of espionage : provided
that enemy soldiers who have not disguised nor
attempted to disguise their character as such shall not
be so considered suspect."
The article proposed in my draft code — No. 8 —
contains a regulation on these lines for air spying.
I have followed M. Fauchille and the other writers
in regarding as spies persons who collect information,
not only in a belligerent's zone of operations, which is
the rule in land war, but also above his territory,
territorial waters, warships, and transports. The
reason for the extension is obvious. I have inserted
"aircraft " after " warships," etc., and have also added
a paragraph to show that, though the aircraft may
not be disguised, the airman may still be guilty of
espionage ; for instance, a military airman might land,
change his uniform for civilian clothes, and leave the
aircraft, in order to collect information. The second-
last and last paragraphs of my article are necessary to
make the rules on the subject of air espionage com-
plete and self-contained.
The Seizure of Enemy Civilian Aircraft
The fourth and last of the Hague references —
Article 53 of the Regle?7tent — is an instruction to land
forces as to the manner in which aircraft found in an
invaded country are to be dealt with. The principle
ii THE HAGUE REFERENCES
37
of temporary (precautionary) seizure, or sequestration,
which it embodies, might fairly be extended to private
aircraft of enemy nationality wherever encountered.
This has been proposed in the draft code of M.
Fauchille (see his Article 9), who has been followed
by MM. D'Hooghe and Le Moyne, and, with one
slight difference, by me.
M. Fauchille's original draft made private enemy
aircraft liable to confiscation, like merchant-vessels at
sea. The great majority of his colleagues in the
Institute of International Law preferred to treat them
like private property on land ; such property cannot be
confiscated, but, under Article 53 of the Hague
Reglement, may be seized if it is of a kind that can be
put to warlike use, and kept during the war, but must
be restored at the peace and the owners compensated.
M. Fauchille's final draft embodies the "majority vote."
The German jurist, Professor Meurer, had already
suggested a similar rule in his book on aerial law
(quoted by M. Fauchille), and Professor Kaufmann's
view was the same, except that he would allow the
seizing belligerent a choice between restoring the
aircraft and paying an indemnity for it after the war.
M. Fauchille held, rightly, that restoration should be
the rule, as otherwise the belligerent would be tempted
to use the aircraft for his operations and thus augment
his military power at the expense of individuals. It
may, however, happen that the seizing belligerent is
unable to remove the private aircraft to safe custody,
and as he cannot, in his own interests, leave it to be
retaken by the enemy (who may, under his national
laws, be empowered to requisition his subjects' aircraft
for war), I think it is necessary to provide that
38 AIRCRAFT IN WAR n
imperative military necessities may justify the
destruction of the aircraft. (See Hague Reglement,
Article 23 (g).)
In my draft article (No. 4), I propose that the seized
private enemy aircraft should be restored without in-
demnity. This provision is taken from the projet
Fauchille and is designed to emphasise the fact that
only bare detention is legitimate. If compensation
had to be paid to the enemy owners (as in Article 53 of
the Reglement), a belligerent might be inclined to use
the sequestrated aircraft and to justify his using them
on the ground that the owners would be compensated
for the wear and tear. Merchant-ships detained at
the outbreak of hostilities are restored without in-
demnity. To empower a belligerent to seize and detain
private enemy aircraft, in order that the other belli-
gerent should not be able to make use of them, and
then to allow him to use them himself, would be to mis-
take the purpose for which alone the seizure is
authorised.
It is much to be desired that the Powers will be
unanimous in accepting the principle of M. Fauchille's
draft article. The definitive capture of private
property at sea has been the object of many criticisms
and attacks in these later years, and it would be a
thousand pities if it were extended to the domain of
the air. There seems to be no reason why M.
Fauchille's compromise should not be agreed to.
While aircraft are, of their nature, too useful for war-
like purposes to be allowed to remain at the enemy's
disposal, their commercial importance in international
traffic is not likely to be sufficiently great to make it
worth a belligerent's while, for many years to come,
ii THE HAGUE REFERENCES 39
to intimidate air-shippers and to stop air trade (as he
does sea trade) by the threat of confiscation of vessel
and cargo, with the intention of injuring the enemy
State in pocket and credit. Temporary detention of
private enemy aircraft is all that is necessary to protect
a belligerent's military interests.
Ill
THE CODES PROPOSED BY M. FAUCHILLE AND OTHERS
Projected Codes for Aerial War
Except for the four references, just quoted, in the
Hague legislation, aerial warfare remains in the
domain of the "law of nations," that is, its conduct is
governed by the principles, undefined in many respects
yet generally recognised, of International Law, just as
the conduct of land war was before the Hague
Reglement of 1899. A code for air warfare will no
doubt be discussed at the next Ha^ue Conference.
Meanwhile, the rules which are to be followed can only
be ascertained from a study of the views of jurists as
expressed in the considerable literature which already
exists on the subject, and from the practice followed
in any wars in which aircraft have been used : the
latter, as yet, a negligible source of information.
Various codes have been drafted, the most compre-
hensive being that presented by M. Paul Fauchille to
the Institute of International Law at its Madrid
Session in 191 1. This draft is particularly useful and
important, because, before submitting it to the Institute,
M. Fauchille invited the remarks thereon of some of
his colleagues, and either embodied the view expressed
40
in THE PROPOSED CODES 41
by the latter in his final draft, or, where he retained
articles with which the other jurists disagreed, detailed
the reason for not accepting their suggestions in the
commentary which accompanied the draft code.
Other codes which have been proposed are those of
MM. d'Hooghe, Von Bar, Le Moyne, and Philit.
These, although they differ in many respects from
M. Fauchille's projet, have been largely built on his
groundwork : he has been the pioneer in this field of
study. I give the codes of MM. Fauchille, Von Bar
and Le Moyne in appendices to this book, adding, in
the case of M. Fauchille's code, which is full of cross-
references, extracts from the Conventions to which he
refers in each article. M. d'Hooghe's code is practi-
cally identical with M. Fauchille's, and I have
indicated, in another appendix, the few points in
which the two codes differ. M. d'Hooghe is president
of the Comitd jiiridique international de £ aviation. I
have not given M. Philit's code ; it is of less importance
than the others. There are many useful suggestions
in his book, but some of his rules, and especially his
idea of establishing "protective zones," of 1500
metres generally and, in some circumstances, of 10,000
metres (a quite impossible altitude for aeroplanes, the
height record of which is only a little over 20,000 feet),
appear to me to be quite unrealisable. Further
material for the codification of air law will be found in
the works of Dr. H. D. Hazeltine and M. Bellenger
(both excellent books), M. Catellani (M. Bouteloup's
translation), Baron de Stael-Holstein, in the proceed-
ings of the Institute of International Law at the
Madrid session of 191 1 (Vol. 2.} of the Annuaires of
the Institute), in the Report of the International Law
42 AIRCRAFT IN WAR in
Association for 191 3 (published 19 14) and in the
numbers of the Revue de la Locomotion adrienne from
its beginning in 1910 to date. The articles by M.
Jenny-Lycklama in the latter (seethe nos. for Septem-
ber, October, and November 19 10) appear to me to be
the finest work yet done in the literature of aerial law.
The Madrid Debate of 1 9 1 1 .
M. Fauchille's projet, though prepared for the
Institute of International Law, was not put to the
vote at the Madrid Session. Instead, the first two
Articles of Herr von Bar's draft code were submitted
but were rejected, the Institute contenting itself with
adopting the following somewhat unsatisfactory gener-
ality :
" Aerial war is permitted, but only on the proviso
that it does not entail greater danger to the persons or
property of the peaceful population than land or
maritime war."
The discussion at the Conference was concerned
rather with the general principles of aerial war than
with detailed rules. Profound differences of view
were disclosed. Some of the delegates, like Professor
Holland and M. Maluquer, proposed to ban the
employment of aircraft, for any purpose whatever, in
war. Others, like Professor Westlake and M.
Alberic Rolin, would allow their use for reconnaissance
but not for purposes of attack. A third group — the
greatest one — regretfully admitted the legitimacy of
the use of aircraft for either scouting or fighting. " If
the employment of aircraft as a means of war is to be
in THE PROPOSED CODES 43
proscribed," said M. Edouard Rolin, one of the last
group, " it must first be shown that they are, as engines
of war, unnecessarily cruel ; failing this being estab-
lished, it must be admitted that aerial war is permissible."
One has to regret that M. E. Rolin's colleagues did
not accept his common-sense view and that they
wasted their time, if one may speak so disrespectfully,
in debating academic generalities, when they might
have been usefully discussing the details of M.
Fauchille's draft code.
Shortcomings of M. Fanchille s Code
To say that M. Fauchille's code is valuable is
merely to repeat that it is by M. Fauchille. But it is
open to the objection which Professor Renault (an-
other eminent authority) raised in 191 1, that it is
too comprehensive and out of proportion to the exist-
ing state of aerial navigation. (A similar objection was
raised by Professor Meurer of Wurzburg.) There is
some force in M. Fauchille's reply that, even if the
conditions which he presumes are still hypothetical and
not actual, it is proper for an exclusively scientific body
like the Institute of International Law to "discount
the future " by framing regulations to meet possibilities.
But such a view must necessarily vitiate one's con-
clusions. In everything relating to the laws of war,
it is of paramount importance to give weight to
"military necessities," and "military necessities"
cannot be gauged unless the capabilities and limitations
of any arm or warlike vehicle are kept in view.
Nothing should be done to add strength to the opinion
sometimes held of International Law that it is too
44 AIRCRAFT IN WAR in
theoretical, too ideal, to be of much practical con-
sequence in the clash of arms.
When M. Fauchille's draft was made, the science of
flight was even more undeveloped than it is to-day.
He rightly anticipated a rapid progress in its develop-
ment, but in doing so, as it appears to me, he
formulated rules for conditions which, for many years
at least, if ever, are hardly likely to exist. His rules
therefore are in some respects rather unpractical. For
instance he gives rules regarding the immunity of
aircraft engaged in scientific and philanthropic missions
and the conveyance of sick and wounded. Such
questions may well be left to be settled until the
practice which they regulate exists.
The Proposed Codes and Contraband
Some of the other questions with which M. Fauchille
and the other writers on aerial war have concerned
themselves appear to me to be not, as yet, " practical
politics." Chief of these questions is that of contra-
band of war. One of the most difficult and important
chapters of maritime law is concerned with the carriage
of contraband ; but its difficulties and its importance
arise from causes which will not affect air contraband.
Where every ounce of weight is of moment, one need
not anticipate any carriage of " conditional contraband "
beyond what may be dealt with on the principle de
minimis non curat lex ; and it is the undefined and
varying nature of " conditional contraband " that is
responsible for many of the complexities in cases of
sea contraband. Any questions of air contraband
will, I think, be confined to cases of carriage of
in THE PROPOSED CODES 45
small quantities of bombs and high explosives, and of
despatches and enemy military persons (corresponding
to W. E. Hall's " Analogues of Contraband " at sea).
They will, therefore, be cases rather of hostile assist-
ance, rendered either with actual intent to injure,
or with that want of reasonable care which amounts to
hostile intent, and they will be preventable and punish-
able as such rather than under the uncertain rules
which apply to sea contraband. From the very
nature of aviation, belligerents will have to take a
sterner view of what constitutes hostile assistance by
aircraft than they have taken in the past in the case of
non-military vessels at sea.
Blockade Breaking
For similar reasons I think one need not legislate
for questions of blockade running. No doubt cases
will occur of aircraft trying to leave or enter blockaded
or besieged towns ; but they can be met more easily
and effectively than by applying the rather cumbrous
rules which govern blockade breaking at sea. All that
is necessary is to provide (and the provision is needed
quite apart from its bearing on blockade, as I will try
to show later on), that if urgent military necessity
demands, civilian aircraft can be shelled without warn-
ing ; and, further, that such aircraft are liable, on
capture, to be confiscated if they approach a zone
of operations on land or sea, or circulate near a
belligerent's land, naval, or aerial forces, or his works,
garrisons, forts or other defences, or his depots. As to
the former of these two suggested provisions, MM.
Fauchille, Le Moyne and d'Hooghe would only allow
46 AIRCRAFT IN WAR in
the destruction of private aircraft after a prior summons.
I cannot think that such a rule will prove acceptable to
military or naval commanders if laid down as rigid and
unconditional. Cases are bound to occur in which a
summons or warning could not be given without the
belligerent who has to give it risking the sacrifice of
his military interests. If, for example, a private enemy
or neutral aircraft attempts to enter a blockaded port
or a besieged town, appearing suddenly out of the
clouds, as an aeroplane may, the blockading or besieg-
ing troops might lose their only chance of stopping the
aircraft (which may carry important despatches or a
selected commander to organise the defence) in the
few precious moments which would elapse between the
giving of the summons and the aircraft's refusal to
comply therewith. The only practical course is to
recognise that military necessity may justify private
or neutral aircraft being shelled out of hand. But
seeing that airmen may be inclined to discount such a
commonplace sporting risk as the chance of annihila-
tion, I suggest that to the sanction of shell-fire be added
the sanction of loss of their property on capture, if
they approach a zone of operations or troops, forts, etc.
Some really powerful and deterrent sanction is needed.
An incident of the Russo-Japanese war serves to
illustrate the view which belligerents may be expected
to take as regards such a menace to the secrecy of their
operations as the approach of irresponsible civilian
aircraft. In that war the steamer Haimum, fitted with
wireless telegraphy, was sent by a London newspaper
to follow the operations of the fleets in Chinese waters.
The Russians threatened to treat the pressmen on
board as spies and to make the vessel a prize of war.
in THE PROPOSED CODES 47
This pretension went too far, but undoubtedly a
commander has a right to prevent, by attaching
sufficient penalties to the commission of the act, the
entering of his zone of operations by a vessel which
has peculiar facilities for transmitting information.
Aircraft, even without wireless installations, have such
facilities in the speed and the altitude at which they
can move, and commanders will need wide and drastic
powers to cope with aerial Haimums in the wars of
the future.
Neuti'al or Enemy Character
Rules for determining the question of the acquisition
of neutral character by enemy aircraft also appear to
me hardly necessary. The question has not the im-
portance of the parallel one which arises in maritime
law, for, enemy property being confiscable in sea war
but only sequestrable (it is suggested) in aerial, there
is less motive for simulating neutral character in the
case of aircraft. Again sea voyages are long and a
ship may change ownership, and therewith the flag it
flies, during a voyage ; and "visit" is always possible
at sea. The voyages of aircraft are brief, their marks
of nationality will probably be fixed, and "visit" is
impracticable ; all that is possible is to command the
suspected aircraft to land and this is only feasible in
the territory of the belligerent stopping the aircraft or
in hostile territory occupied by his troops — both of
which places aircraft of doubtful character and ante-
cedents (i.e., aircraft whose assumption of neutral
character is not bond fide) would be especially careful
to avoid.
48 AIRCRAFT IN WAR m
Rules regarding Civilian Aircraft in the Proposed
Codes
It is questionable, indeed, whether the writers who
have proposed rules for aerial war have entirely-
grasped the real inner meaning and character of this
new development of the art of war. They seem, in
their treatment of some questions, not to recognise
fully enough that the new weapon is a thing apart,
absolutely sui generis, unlike anything that has yet
been concerned in war on land or sea. The coming
of the aircraft, with its extraordinary speed, its power
of unmolested observation, its unique capacity for
avoiding capture, has opened a new series of problems
in the laws of war. All the suggested codes, useful as
they are, seem to fail to the extent that they do not
distinguish between aircraft as " dead ' property and
aircraft as the potent, almost functional, agency of
observation and communication which it is always
capable of becoming. Within certain strict limits, it is
riofht and reasonable to assimilate aircraft to different
kinds of existing property — to that private enemy
property, for instance, which, though immune from
confiscation, may be sequestrated by a belligerent to
prevent his enemy from using it, or to that neutral
property with which alone belligerents have much
concern — neutral merchant-ships plying their trade.
But these analogies must not be pressed too far. The
extraordinary and unique powers of this new kind of
"property" ("property" with a touch of black magic
added) must never be lost sight of, in determining the
rights and liabilities of civilian airmen. One has only
to consider how history might have been changed it
in THE PROPOSED CODES 49
only someone had anticipated Lilienthal, Chanute, the
Wrights and the other pioneers by a century. It
might have altered the fate of Waterloo, by keeping
Napoleon and Grouchy in touch and placing the latter
where he was meant to be, across Bliicher's path from
Wavre ; or of Chancellorsville, by warning Hooker
that Jackson was moving on his flank ; or of Sedan,
by saving MacMahon from running his head into that
great trap on the Meuse. A thing which is capable of
changing the face of war like this cannot be classed
absolutely with private stores of blasting powder on
land, or with tramp steamers at sea. One is amazed
to find M. Le Moyne stating that an aircraft is, in the
eyes of International Law, simply a munition of war,
like a mitrailleuse, a cannon, or a rifle.
It is something far more, to the precise extent that it
is an aircraft and they are not. The non-military
aircraft is indeed a thing" which commanders will be
entitled, in self-protection, to ban and to keep at bay
as they would the cholera or plague, and the action
which they take to that end, if it is to be effective,
cannot be subject to review by prize-courts, or
fettered by the nice rules and distinctions which
constitute the law of contraband. It may be a pity
that this should be so, and perhaps it would be
preferable, on general considerations, if the young
science of flight could be " neutralised " in war ; but to
expect that military and naval commanders will,
because of general considerations, allow aircraft any
latitude that may redound to their disadvantage is to
expect Utopia. When aircraft have established their
place in the world's commerce, when their importance
as international carriers approaches that of sea-going
E
50 AIRCRAFT IN WAR m
vessels, when they carry mixed cargoes and represent
in their trade great international interests, and, above
all, when there is some sharper line between aircraft of
a commercial character and aircraft of a warlike
character than there is to-day, it will be time to
consider whether the rules regarding contraband,
unneutral service, prize court, etc., 1 cannot be applied to
them. But at present, it is impossible, I submit, to
subject them to any milder rules than those proposed
in my draft code. There is in them too great a
potential capacity for hostile acts, or, if one likes, for
acts of damaging indiscretion, to allow them to be
regarded as otherwise than always suspect in the eyes
of military commanders, as things which, like the Red
Indians long ago in America, it is pretty safe to shoot
on sight. This view may appear drastic and inhumane ;
but is any other view practical ? The alternative
appears to me to be one of double choice — either to
abolish aviation or to abolish war.
Requisitioned Civilian Aircraft
It is suggested, then, that in very many cases the
rights of private airmen, belligerent and neutral, to
security and freedom from interference and molesta-
1 If the rule be adopted that private enemy aircraft are subject to
sequestration only and not to definitive capture, there will not be the same
necessity for establishing prize courts for aircraft cases as there is for
shipping. As regards neutral aircraft, these will ordinarily only be con-
demned (as indeed will be private enemy aircraft also) in respect of acts of
which the capturing belligerent must, for military reasons, be the sole and
sufficient judge. The difference between the conditions of air and sea
traffic will justify belligerents in demanding, in the case of aircraft, that
they shall have the right to act without regard to those safeguards of
judgment and appeal which are found necessary in maritime cases.
in THE PROPOSED CODES 51
tion, must in war time practically disappear. From
the very nature of the vehicle which they use, they
cannot expect anything but rough handling if they
venture into places in which the swift-smiting law of
war runs. Military exigencies cannot allow the civilian
airman whose services and machine are requisitioned
by troops, for conveying a staff-officer or carrying
explosives, to be classed with the civilian carter whose
wagon is requisitioned for some service of the same
kind. In equity, perhaps, the one deserves no worse
treatment than the other ; but, in practice, the greater
danger to the enemy which lies in the airman's employ-
ment, his removal from control, his wider power of
movement and observation, justify the airman's being-
treated as that outlaw of war law — the unqualified
belligerent — if he engages in any service whatever
connected with hostilities ; whereas the carter is, at
the most, only made a prisoner of war. (Usually,
he is allowed to go free.) If this is hard on private
airmen, they should refuse to engage on such duties
unless their machines are taken over by the military
authorities and <jiven the service marks, in fact, turned
into regular military aircraft ; the airmen themselves
could be commissioned or enlisted for the time and
supplied with uniform. 1 Otherwise, as it seems to
1 Such men will not have been previously under military discipline, but
neither will certain kinds of reservists, about whose qualifications as
belligerents there can be no question, provided they wear uniform, are
under discipline when mobilised, and obey the laws of war. In Great
Britain civilian mechanics with experience in aeroplane work, wireless
telegraphy, and motor transport driving, are enlisted as "Special
Reservists, Category (c)" ; they peform no duties in peace, but receive a
bounty of £4 a year as a "retainer" for their services in war. When the
Reserve is mobilised they receive free uniform, rations, etc., and are paid
as Air Mechanics of the Royal Flying Corps. If qualified pilots, they
would be employed as such in war. There is a similar Reserve of flying
E 2
52 AIRCRAFT IN WAR in
me, they will have to be regarded as unqualified
combatants.
Civilian Aircraft and Zones of Operations
Similarly, if a civilian airman approaches the scene
of any operations, though his intentions be no more
warlike than those of the average Cook's tourist,
military exigencies will demand that he should be
dealt with in such a manner that others (whose inten-
tions may not be so good) shall be deterred from
following his example. Hence my suggestions that he
should be made liable to having his aircraft confiscated
and also to the risk of being summarily shelled.
Although this latter risk is not admitted by M. Fauchille
officers, called the "Second Reserve of the R.F.C.," who perform no tests
or duties and receive no pay or gratuities, during peace, but undertake to
serve, if required, with the R.F.C. in war. The position of the officers
and men of these two Reserves is practically the same as that of the
civilian airman referred to in the text, except that they are already
formally commissioned and attested respectively.
Besides these purely civilian Reserves, there are the " First Reserve of
the R.F.C." for officers, and the ordinary Special Reserve for non-
commissioned ranks. They differ from the Reserves just mentioned in
that they are called up for training during peace and the members do not
don uniform for the first time only when war begins and mobilisation is
ordered. The officers of the First Reserve are attached for instruction
to the Central Flying School on first appointment, receiving army pay,
and thereafter perform quarterly flying tests, receiving an annual
gratuity of ^50. They are given an "Outfit Allowance" to provide
themselves with uniform. The Warrant officers, N.C.O.'s, and men
of the ordinary Special Reserve may be either soldiers serving in other
arms of the service, or else Army Reservists {i.e., men who have served
for a few years with the colours and have been transferred for their
remaining period of service to the Reserve), or Special Reservists (the
successors of the quondam militiamen). They receive instruction at the
Central Flying School on enlistment, being paid as soldiers of the R.F.C,
and afterwards perform quarterly tests. They receive annual bounties of
£10, if serving with the colours, or ^20 if serving in the Army Reserve or
Special Reserve. They wear uniform (supplied free) when doing duty.
(Army Orders 131/1912 and 229/1913.)
in THE PROPOSED CODES 53
and the other writers, they appear to be reaching for-
ward towards a somewhat similar conception of the
private airman's disabilities in war. They forbid all
circulation of neutral aircraft in a belligerent's atmo-
sphere. Since military operations rarely affect the
whole extent of a territory, to forbid neutral aircraft to
circulate in belligerent atmosphere would be, as the
French Professor Renault and the German Professors
Von Bar and Kaufman point out, the cause of grave
and unnecessary prejudice to neutrals, who would thus
be shut out from commerce with the warring Sates ;
and, adds M. Bellenger, if private belligerent aircraft
are still allowed to enter neutral atmosphere, the
prejudice would be aggravated by the creation of a
kind of monopoly in war time in favour of belligerent
airmen. I might add a further, and perhaps more
practical, objection, namely, that under these writers'
rules a theatre of land operations would not be kept
clear of enemy civilian airmen, nor a theatre of sea
operations of either enemy or neutral airman, so that
the object which they have in view is only partially
attained. Apart from these objections to the general
prohibition of neutral circulation in belligerent atmo-
sphere — objections which (except the last) might them-
selves be criticised as based on an air commerce which
does not yet exist — the view of MM. Fauchille,
d'Hooghe and Le Moyne appears to be unsustainable as
a rule of International law. It rests with each country to
decide whether its frontiers shall be closed or not to air-
men in war as in peace. The question is one of internal
sovereignty, not of International Law. Any State has
an incontestable right (given the sovereignty of air
spaces) to prohibit the crossing of its frontiers by air-
54 AIRCRAFT IN WAR m
craft and to assign penalties — whether in the form of
fines, imprisonment, or confiscation of the aircraft — for
violation of its laws on the subject. But such penalties
are not imposed or authorised by International Law —
they are imposed on the authority of the State's
territorial sovereignty. Where International Law
comes in is in authorising a belligerent to take such
steps as will ensure his military operations not being
hampered by the action of neutrals. It authorises him,
for instance, to assume a power, not his in peace, to
prevent neutrals from carrying munitions of war to
the enemy, or breaking a blockade, or assisting the
enemy generally with supplies and stores ; and it will
similarly empower him, in the case of aircraft, to strike
directly at neutrals whose coming or presence might
endanger the success of his operations. To proclaim
a general rule of International Law that every neutral
State's frontiers must be closed to private airmen from
the moment war begins would be to apply to aerial war
a rule that goes beyond any rule in land or naval war,
It is clearly unwise to make a neutral State's responsi-
bilities, as regards the nationals' actions, greatest in the
one domain in which effective control is most difficult.
It is different, of course, with neutral military aircraft ;
they are, so to speak, " emanations " of their State, they
are manned and controlled under its authority, and the
State is responsible for their movements and actions.
Their entering belligerent atmosphere is therefore a
governmental act, i.e., one which affects their State's
neutrality.
The interests of civilian airmen and of belligerents
might be reconciled by the suggestion which has been
made, that all civilian aircraft flying over a belligerent's
in THE PROPOSED CODES 55
territory, whether they belong to the belligerent's own
subjects or to neutrals, will be declared liable to be
fired upon unless they carry out certain definite move-
ments which would probably be kept confidential. 1
There may be some difficulty about notifying and
keeping secret the exact manoeuvre which will be
prescribed and which will be taken as evidence of the
friendly character of the aircraft, but the suggestion is
worthy of careful consideration in view of the admitted
difficulty of identifying aeroplanes at a height of 3,000
to 4,000 feet and over. The provision in my draft
code (see Article 7) that civilian aircraft can be fired
upon without warning in cases of imperative military
necessity would mean, in practice, that they would
always be liable to be shelled if they approached a
belligerent's troops or forts (and naturally they
could not be fired upon elsewhere), and, if the
suggestion were adopted, some regrettable cases of
misunderstanding might be avoided. Any rules as to
the treatment of private aircraft belonging to a
belligerent's own nationals are, of course, questions to
be dealt with in the national law of the belligerent, not
in an international code.
1 For the information that such a suggestion has been made (and,
indeed, put into practice), I am indebted to Captain W. D. Beatty,
R. F. Corps.
IV
THE SOVEREIGNTY OR FREEDOM OF THE AIR
Aerial Sovereignty and International Conferences
The sovereignty or freedom of the air has been a
vexed question among jurists since the first. It was
discussed at the Madrid session of the Institute of
International Law in 191 1 and the Institute then voted
the following text :
" International aerial circulation is free, subject to
the right of the underlying States to take certain steps,
which should be fixed, to safeguard their own security
and that of the persons and property of their
inhabitants."
Before this, in 19 10, a conference of diplomatists had
been held at Paris, under the presidency of M. Millerand,
Minister of Public Works, and one of the questions
discussed was whether the territorial dominion of
States extends to the air space above. Numerous
sessions were held in May and June of that year, but
the conference broke up without issuing any report.
Official confirmation is lacking, but there is reason to
believe that the rupture was due to the attitude taken
up by certain Powers, including Great Britain and
56
iv SOVEREIGNTY OR FREEDOM OF AIR 57
Germany, relative to the status of the air. These
Powers, it is stated, claimed an absolute sovereignty-
over the air and the right to close their aerial frontiers
at any time to foreign aircraft, without having to justify
their action.
The question was also discussed by the International
Law Association in 191 3, in which year it met at
Madrid, as the Institute (a quite distinct society) had
done two years before. Unanimity was not reached,
but eventually a formula was found which went far to
reconcile the opposing views. This formula, while
recognising the sovereignty of subjacent States over
the atmosphere, expresses the view that such States
ought to allow liberty of passage to the aircraft of other
nations. "An examination of recent discussions," says
the report of the Committee of the Association, " has
convinced us that the opinion of statesmen and jurists
is more and more coming to accept the view of full
sovereignty. Legislation in those countries where
legislation has taken place is based on the principle of
full sovereignty . . . But they (the Committee) are
of opinion that, subject to such safeguards as subjacent
States may think it right to impose, aerial navigation
should be permitted as a matter of comity." The rules
proposed by the Institute and by the Association are
given in Appendix V.
The Freedom of the Air
The principle of the freedom of the air is one which
has in it a broad appeal to acceptance. There is
something which attracts in the conception of Fair
sans maitre, to use a French writer's phrase — the air
58 AIRCRAFT IN WAR iv
that is as free as the winds of heaven. Many jurists
have lent powerful support to the doctrine of freedom.
The air, they say, is fluid and everchanging, like the
sea, and, like it, insusceptible of appropriation. "You
cannot close the infinite," says M. Henry-Coiiannier j 1
" you cannot, on the ocean of the clouds, write up the
notice — 'No passage here.' "Territory is primarily
for habitation and national exploitation," says M.
d'Hooghe, 2 "and only secondarily for international
circulation ; the sea and the air, on the other hand, are
unfitted for habitation and exploitation and are only
meant to circulate in."
The Sovereignty of the Air
It is a fallacy to view the air solely as an element
and not as a space, and a space which may be used by
smugglers in peace and by spies and invaders in war.
The doctrine of the freedom of the air is, indeed,
unless formulated with reservations which make it not
a doctrine of freedom at all, incompatible with the
doctrine of the right to national self-preservation. The
alternative principle which would assign to each
country the sovereignty of the atmosphere above its
territory is the principle which has, in fact, prevailed
in practical legislation. Baron de Stael-Holstein, in a
paper entitled " L'Empire sur l'Air " in the Revue de la
Locomotion airienne (October, 191 2), appears to lay
upon Great Britain the blame of being responsible for
fettering free aerial travel by advancing the principle
of the sovereignty of the air, and describes la conception
1 Revue de la loc. aer., January, 191 1.
2 Droit airien (Paris, Dupont), p. 7.
iv SOVEREIGNTY OR FREEDOM OF AIR 59
brittanique as ddmodie} But the principle is not
confined to British legislation. Article 32 of the
French Ddcret of 13 December, 19 13, reads: "The
circulation in France of foreign military aircraft is
forbidden." 2
The British Aerial Navigation Act of 191 3 gives
the Government power to prohibit the navigation of
aircraft over "the whole or any part of the coastline
of the United Kingdom and the territorial waters
adjacent thereto." 3 In other words, Great Britain
asserts her right to close her atmosphere absolutely
to the aircraft of other States, i.e., she proclaims her
sovereignty to the atmosphere overlying Great Britain.
No amount of argument can make the effect of the
Act other than that. " The English Aerial Navigation
Acts, 191 1 and 1913, assume full sovereignty rights,
1 See also Baron de Stael-Holstein's La Re'glementation de la Guerre
des Airs (La Haye, 191 1), pp. 64-8.
2 Compare Statutory Rule and Order, No. 228, 191 3 (Home Office),
issued under the British Aerial Navigation Acts, 191 1 and 1913, which
provides that : " Foreign naval or military aircraft shall not pass over or
land within any part of the United Kingdom or the territorial waters
thereof except on the express invitation, or with the express permission,
previously obtained, of H.M. Government."
3 The power has been exercised in the Statutory Rule and Order
referred to in the last note, which closes the whole coastline of the United
Kingdom to foreign aircraft, with the exception of certain portions which
are specified in Schedule II. of the Order and are further indicated in a
map accompanying the Order. These excepted portions are tracts of
about 45 miles in Aberdeen ; of about 40 miles in Northumberland
(East Coast) ; of about 70 miles round the Wash (Lincoln and Norfolk) ;
of 12 or 15 miles in Essex, near Burnham-on-Crouch ; of about 20 miles
from Margate to Walmer in Kent ; of about 23 miles from Rye to
Eastbourne, and of about the same distance between Hove and Bognor,
in Sussex ; and, finally, of about 35 miles in Dorset and Devon, between
Bridport and Dawlish. All foreign aircraft desiring to circulate over
Great Britain must land, on first entry, in one of these areas, within five
geographical miles of the coast, and make an "arrival report" to the
authorities.
6o AIRCRAFT IN WAR
IV
and recent legislation in France and Russia rests on
the same assumption : while the Franco-German
Convention regulating air traffic, which is stated in
the Press to have been recently concluded, admits
the same principle in 'authorising' civil aerial circulation
in each country subject to certain conditions, and in
allowing to each country the right of making such regu-
lations as it pleases relative thereto." 1 Nor is there
wanting the support of jurists to the view which
proclaims the air capable of national appropriation.
" Whether the matter be treated as one of legal
principle or as one of practice," says Professor Sir H.
Erie Richards, 2 "it is alike necessary to recognise the
absolute sovereignty of States in the air space above
their territories." " Between a territory and the air
dominating it," says Professor Arnaldo de Valles, of
Verona, 3 "there is a connection so close that it is
impossible to separate the one from the other." "If
the freedom of the sea is desirable for all," says M.
Jenny Lycklama, 4 " the reason for this must be sought
in the fact that no individual State has any interest in
ruling over a distant part of the sea, and, on the
contrary, has an interest in the freedom of international
maritime circulation. ... A State has more interest
in having power in the air space over its territory than
in the portion of the sea washing its shores." For
practical purposes the doctrine of the freedom of the
air is dead. " Liberty of aerial circulation," says M.
1 Report of the Committee upon Aviation of the International Law
Association (see the Association's Report of the Madrid Session of 1913
(London, Flint), page 532). The Franco-German agreement is given in
Appendix X.
2 Sovereignty over the Air (Oxford, 191 2), p. 25.
3 Revue de la loc. air., July- August, 1910.
4 Revue de la loc. aer., Sept., 1910.
iv SOVEREIGNTY OR FREEDOM OF AIR 61
Bellenger, 1 " is a generous dream but a dream entailing
such consequences for the security of States that it is
absolutely impossible to admit it." "The doctrine of
the freedom of the air — even limited by the State's
so-called right of conservation — lacks historical and
juristic soundness," says Dr. Hazeltine; 2 "it rests on
no solid rock of past development and on no solid rock
of consistent principle. ... It should not be forgotten
that the history of national law shows us the limitation
of private property rights in various directions, and
that the history of international law has been the
history of voluntary limitation of their rights by
Sovereign States in the interest of the whole society
of States including themselves. In international law
the progress has therefore been from national to inter-
national law ; and this progress has largely been
effected by international agreement. The same
progress will probably be witnessed in the growth
of a law of the air."
Qualified Sovereignty Insufficient
It may be argued that there can be no strong
practical objection to admitting the freedom of the air
if one qualifies the admission by recognising the right
of the different States to take all the measures necessary
for their security. But this is not so. It is very
important to lay down the principle of absolute sove-
reignty to assert the inalienable right of States to open
or close their aerial frontiers as they choose. Nothing-
less will suffice. Qualified sovereignty is not sove-
1 La Guerre airienne (Paris, Pedone, 191 2), p. 36.
2 The Law 0/ the Air (191 1), pp. 142-3.
62 AIRCRAFT IN WAR iv
reignty at all. A State must have the same power in
the air above its territory as in the territory below.
When aircraft are in question, with their mobility,
their speed, their freedom from control, it is especially
necessary for a State to maintain its right to exclude
or admit as it thinks fit such potentially dangerous
visitors from beyond its frontiers.
It has been suggested that sovereignty with a servi-
tude of innocent passage will meet the difficulty. The
same objection applies. Unless the servitude is so
restricted and made subject to such conditions that it
amounts in reality to each separate case of entry being
considered on its merits, i.e., in effect, unless one makes
the qualified sovereignty equivalent to unconditional
sovereignty, the proposal is incompatible with that full
right of national self-preservation which States will
demand.
Proposed Territorial Zone for the Air
Sovereignty limited to a certain height has been
suggested by many authors. The height proposed
has been variously taken as the range of vision, or of
cannon, or the height of the highest mountain or
building in a particular country, or a purely arbitrary
height ; and it has been suggested that underlying
States should have dominion over the volume of air
below the limit referred to and that the upper reaches
of the air should be free. The writers in question
would, in fact, treat the air like the sea, and institute a
territorial air zone, corresponding to the territorial or
coastal waters of States.
The comparison is fallacious. The proper parallel
iv SOVEREIGNTY OR FREEDOM OF AIR 63
for a world composed of States holding sovereignty-
over the air up to a certain height would be, not the
world as we know it — the world of men and women as
it exists — but a subaqueous world of mermen and
mermaids "protected " by a territorial zone of so many
fathoms of sea water above their heads. The reason
that States claim territorial sovereignty over the sea
for a marine league from their shores is simply that
such a protecting zone is necessary for their security.
A similar zone, horizontal instead of vertical, would
give no corresponding security from molestation from
the air. Ordinarily anything happening outside the
limit of the territorial waters would not affect persons
and property on the land. It is obviously not so in
the case of the air ; occurrences in the upper reaches
of the air, at whatever height, might make their effects
felt on the ground, just as much as occurrences at
lower altitudes. The line of demarcation would be
far more difficult to observe in the air, and transit from
the free zone to the closed zone would be more easily
and rapidly effected, would be more dependent on
chance, and would affect more than the mere sea-front
of the State concerned.
The Air as a res communis
The communistic suggestion C) f y[ d'Hooghe is
quite chimerical and impracticable. He proposes that
the atmosphere should be considered as a res communiSy
that all of it should be regarded as the property of alt
the States together, that no one of them should have
the power to legislate, separately, for the air space
above its own territory, and that only the whole body
64 AIRCRAFT IN WAR iv
of States, in agreement, should be entitled to make
rules for the domain of which all are joint sovereigns.
One wonders what States would have a place in this
proposed "parliament of man." Would Hayti, for
instance ? And how could agreement be reached
by countries differing in their customs regulations,
in their immigration laws, and in many other things ?
The proposal cuts across the very first requirement
of practical statesmen in this matter of the rdgime of
the air, namely, the right of exclusive national action
as regards self-protection.
V
BELLIGERENT ENTRY OF NEUTRAL ATMOSPHERE
Belligerent Passage of Neutral Territory
If the sovereignty of air spaces is granted, the
right of belligerent entry of neutral atmosphere cannot
logically be maintained. The neutral State which
grants passage to a belligerent escadrille is thereby
allowing the use of its domain for a purpose of hostili-
ties. If the soil of a country and the air above are so
intimately bound together that States must, as they
do, claim sovereignty over both, the connection
cannot be dissevered to suit the convenience of a
belligerent whose enemy lies behind a neutral State's
borders. There must be sovereignty for all purposes
or for none.
M. Fauchille, though an upholder of the freedom of
the air, is apparently of opinion that something more
than a general principle is required to support the
right of belligerent passage, and he advances the
strange argument that, if such passage be not allowed,
the aircraft of a belligerent State which is separated
from the other belligerent State by a neutral country
and which has no sea frontage, would be unable to
reach their enemy. But this is precisely the situation
° 5 F
66 AIRCRAFT IN WAR v
as regards land passage by troops and no divine right
of belligerency has been claimed in recent times to
justify passage for them. If Austria and France were
at war, for instance, and if Italy, Switzerland, and
Germany were neutral, and if flying be left for the
moment out of the question, no Austrian soldier could
set foot in France, nor any French soldier in Austria,
unless the one or the other travelled by sea.
The same objection to belligerent passage arises in
land and in aerial war. If passage is granted, it must
be granted impartially ; hence, the troops or aircraft of
the two belligerent parties may come into collision in
neutral territory or atmosphere and the neutral State
may suffer. The most extreme partisans of the liberty
of the air would not countenance the claim of belliger-
ents to engage in actual hostilities above neutral soil.
Belligerent Aircraft and Neutral Ports.
The case of entry of neutral ports is a little different ;
there, collisions between opposing aircraft could be
prevented in the same manner as collisions between
opposing battleships. It has been sought to justify
entry of neutral ports on the analogy of maritime law,
which allows entry, with certain restrictions and upon
certain conditions, to belligerent warships. M. Lyck-
lama is an advocate of such a privilege, and one might,
with him, distinguish between, on one side, the ports
and territorial waters of neutrals, and their territory
generally, on the other, and forbid entry of the latter
but allow it of the former, on the ground that, as the
atmosphere above the open sea is free, while that over
the land is the domain of the subjacent State, aircraft
v NEUTRAL ATMOSPHERE 67
whose ordinary path is over the sea and who touch at
a neutral's ports for some reason or other are only
departing for a little from the space where they have a
right to travel, and should not be denied that asylum
which aircraft which have put themselves " out of
court " by travelling overland (i.e., in a space to which
they have no right of access) cannot claim with as good
reason. But there are practical difficulties in applying
such a rule. For instance, if Spain and Italy were at
war, and an Italian aeroplane landed at Marseilles, i.e.,
a neutral port, how could the local authorities tell
whether it had come by sea along the Riviera coast
from Genoa, or overland from Turin ?
Impossibility of Differentiating between Land and
Seaplanes.
It is no solution of the difficulty to reply that a
distinction can be made between land aeroplanes and
seaplanes and that entry can be granted to the latter
but refused to the former. For a land type of aero-
plane may be used for a sea journey, and ordinary
aeroplanes can be carried on and launched from ships'
decks. Furthermore, how would one deal with the
"amphibians," i.e., the aeroplanes which are fitted with
both landing wheels and floats and can alight on and
ascend from either land or water ? The Albatross and
the Caudron waterplanes are examples. Even aero-
planes which have not the double purpose fitments can
in many cases be changed easily from floats to landing
chassis and vice versa ; for example, the Bleriot water-
plane and the " F. B.A. flying boat."
The entry of neutral ports by belligerent warships
F 2
68 AIRCRAFT IN WAR v
is simply a vested right of belligerency which is con-
secrated by tradition and indefensible on its merits.
It is wholly wrong in principle and is, furthermore, the
cause of very considerable inconvenience to neutrals.
Dr. H. D. Hazeltine, who holds that the same
privilege of entry of neutral harbours should be
granted to air vessels as to sea vessels, admits the
possibility of such inconvenience. " Undoubtedly,"
he says, 1 "difficulties would arise in carrying out this
principle ; and the matter will require the most serious
attention of international lawyers. It will be necessary,
for example, definitely to determine how long the air
vessel should remain in the neutral port, and it will be
necessary to ensure the strict observance of impartiality
on the part of the neutral state itself."
The difficulties to which Dr. Hazeltine refers will,
I think, be such that a great balance of advantages
will be found to lie on the side of refusing admission
of entry to belligerent aircraft, except in one single
case, to which I shall refer presently. The history
of sea warfare in modern times is largely concerned
with troublesome questions arising solely out of a law
of neutrality which began as a concession and a privi-
lege and was stretched till it became not only a
right, but a right that grievously imperils neutrality
itself. The record of the origin of the rule that a
belligerent warship may only remain twenty-four hours
in a neutral port is one of the most amusing and instruc-
tive chapters of International Law. It is of interest in
this connection as showing how belligerency may turn
a law of neutrality to further its own hostile ends.
1 The Law of the Air (191 1), p. 140.
v NEUTRAL ATMOSPHERE 69
There was an old law of neutrality, dating from at
least 1759, which prescribed an interval of at least
twenty-four hours between the departure of warships
belonging to both belligerent parties from a neutral
port. This rule was cleverly made use of in 1861 by
the Federal cruiser " Tuscarora " to imprison the
Confederate cruiser " Nashville " in Southampton
Water. The "Tuscarora," keeping steam up and
slips in her cables, claimed priority of sailing whenever
she saw the " Nashville ' move ; then she would
return within twenty-four hours, and, by repeating the
same trick, succeeded in confining the " Nashville "
to the neutral harbour for a considerable time. To
prevent a recurrence of such a Gilbertian situation, the
British Government adopted the rule that a belligerent
war-vessel can only remain for twenty-four hours in a
neutral port, except in the case of stress of weather
or reprovisioning. It is quite possible that incidents
of the same kind may arise if the principle of belliger-
ent entry be adopted for aircraft.
Beyond allowing seaplanes attached to a fleet, or
other aeroplanes actually operating therewith, to enter
and remain in neutral waters if and so long as they
remain in actual contact with their "parent" ships, no
entry whatever should be allowed to aircraft ; or, rather,
if they enter, they should be secured and interned
while hostilities last. The exception referred to will
probably be found advisable for reasons of practical
policy, but, with this one exception, there is no sound
reason whatever for extending to aircraft the anomaly
and anachronism with which the general law of neu-
trality is disfigured in the case of seacraft. It is un-
70 AIRCRAFT IN WAR v
desirable to begin by establishing what is, in effect, an
abuse and a nuisance.
In Articles u, 12, and 13 of my draft code, I give
expression to the principles outlined above. Article
1 1 forbids belligerent service aircraft to enter neutral
atmosphere or territory, and Article 1 2 imposes on neutral
States the duty, so far as their means permit (for a State
cannot do more than the resources at its disposal, in
the shape of a national aircraft force, allow), to seize
and detain any belligerent military aircraft violating
the terms of Article 11. If, therefore, a belligerent's
military aeroplane pursues a private enemy aeroplane,
and the latter flies into neutral territory, the private
aeroplane goes free (as it is not forbidden to enter
neutral territory, under the rules of International Law),
but the military aeroplane must, if it follows, be secured
and interned. If it pursues and follows a military
aeroplane of the other belligerent, both must be secured
and interned.
Article 13 provides that an aircraft which is per-
manently assigned to a battleship and usually accom-
panies it, shall be regarded as part of the battleship so
long as it remains in actual contact therewith. Some
such provision appears necessary to meet the case of
hydroplanes accompanying battleships or monoplanes
carried on their decks. Such aircraft are practically a
portion of the parent ship and as the latter is allowed
to enter neutral waters and ports, an unpleasant and
onerous duty would be imposed on neutral authorities
if they had to treat the warship and its aeroplanes
under different rules. To prevent abuses it is desirable
to frame the provision so that it does not cover such
v NEUTRAL ATMOSPHERE 71
cases as the temporary attachment of a land service
aeroplane to a battleship, with a view to enabling the
former to be repaired in a neutral port, or the dispatch
(on the wing) of a sea service aeroplane from
territorial waters on a hostile mission ; hence the
wording of my proposed Article.
VI
DISTINGUISHING MARKS FOR AIRCRAFT AND THEIR
CREWS
Necessity for an Irremovable Sign
On the question of distinguishing marks for military
aircraft and their crews, the codes proposed appear to
me unsatisfactory. They do not require the pilot or
other airmen to be uniformed, and they do not require
the distinctive service marks of the aircraft to be fixed
and irremovable. Indeed, M. Fauchille expressly
contemplates the case of " a private aviator having in
reserve a sealed commission to be opened when
required and a national flag to fly in case of con-
version," i.e., the case of a non-combatant suddenly
assuming combatant status. Those who have followed
the discussions at the Brussels and Hague Conferences
will at once appreciate the difficulties and dangers
which lie in such a procedure being tolerated. The
separation of combatants from non-combatants is as
necessary and important in the air as on land and sea.
To recognise the legitimacy of francs-tireurs of the
air is utterly out of the question. A distinctive mark
that is removable at will is quite insufficient, and there
72
vi DISTINGUISHING MARKS FOR AIRCRAFT 73
is the further objection to the use of a flag as a sign
that, if used on an aeroplane, it might " foul " a con-
trol and cause accidents. What, exactly, the mark
should be is a question for discussion and arrangement
between the Powers. As distinguishing marks for
military aircraft, French military aeroplanes bear on
the under surface of each wing (the lower plane in a
biplane) a tricolour cockade one metre in diameter, and
dirigibles not only have their names in large black
letters on the under surface of the front of the envelope,
but also fly the national flag with a tricolour pennant
above it. Mr. C. G. Grey, the able editor of The
Aeroplane, suggests that a better plan, for aeroplanes,
would be to cut sections of varying numbers or shapes
out of the under-plane or wing, after the manner of
the section which is cut away from the wing of the
" Total Visibility " Bleriot to allow the airman to see
downwards. A similar section is cut away from the
wing of the Clement- Bayard tandem monoplane (80
H.P. Clerget engine). He states that the system of
painting marks on the under-surface proved unsatis-
factory in the Balkan War ; the distinguishing marks
were not visible at the height at which the aircraft had
to fly.
Necessity for Uniform
The crew of a military aircraft should also be
distinguishable as soldiers, for they may have to leave
the aircraft temporarily on landing — to gain inform-
ation, to obtain petrol, etc. — in the enemy's country,
and in the absence of a nniform or other distinguish-
ing marks they might be regarded as spies. M.
Bellenger holds that uniform is unnecessary, because,
74 AIRCRAFT IN WAR vi
if captured on land, the airman could produce his
written authority as a military airman. But the
military " spy " who is wearing civilian clothes cannot
save himself on the plea that he has a commissio'n or
attestation in his pocket ; he must have the external
marks of a combatant. Moreover, uniform is the sio-n-
manual of belligerency, the guarantee that the wearer
is bound by the laws of civilised war. A belligerent
might conceivably assume that men captured in
military aircraft but not themselves in uniform were
not bond fide members of that honourable trade-union
of fighting men (if I may call it so) to which war law
grants combatant rights, but chance civilians who did
not "play the game," who did not observe and should
not profit by its rules. It is noteworthy that under
Article 30 of the French Ddcret of December 16, 19 13,
military aircraft must be under the orders of a com-
mandant wearing uniform and also having a certificate
establishing the military character of the aircraft. The
latter requirement seems unnecessary in International
Law.
VII
THE SEIZURE, CONFISCATION, AND DESTRUCTION OF
PRIVATE ENEMY, AND NEUTRAL AIRCRAFT
In Sections II. and III., I have dealt on broad lines
with most of the questions which concern the seizure
and destruction of civilian aircraft, but a few points
arising out of my suggested code provisions (see
Articles 2, 6, 7, 18, 19, and 20) require some brief
treatment. The tabular statement given at the end of
Section X. (see p. 97, post) will be found useful in
connection with the questions dealt with in this
section — the treatment of aircraft — as well as in con-
nection with those dealt with in the section in which
it appears — the treatment of airmen.
Articles 2, 6 and 8 (espionage) show the circum-
stances in which private enemy aircraft may be
confiscated, and these articles are made applicable
to neutral aircraft also by Article 20. Article 4,
already sufficiently noticed (see pp. 37-39, supra),
shows the cases in which private enemy aircraft may
be sequestered, and Articles 18 and 19 those in which
neutral aircraft may be similarly detained. Article 4
and, for neutrals, Articles 18 and 19 state my suggested
rules as to the destruction of civilian aircraft, in excep-
75
76 AIRCRAFT IN WAR vn
tional cases, after descent. Article 7 gives the cases
in which alone private enemy aircraft may be fired
upon "on the wing" and this article is applicable also
to neutral aircraft (see Article 20).
Aircraft confiscated under Article 2 or under Article
6 become, of course, the absolute property of the
confiscating belligerent, and may be used by him for
his operations, provided they are converted into mili-
tary aircraft of his own service under the terms of
Article 1. But aircraft merely sequestrated under
Article 4 cannot be so used ; they are only subject to
detention (or to destruction, if military necessities
demand), not to military usage.
Confiscation of Civilian Aircraft entering Zones of
Operations
My object in drafting Articles 6 and 7 (which are
applicable to neutral aircraft also — see Article 20) is to
make all but belligerent military aircraft give belliger-
ents and their garrisons, fleets, etc., an extremely wide
berth. Nothing short of some such provisions as those
suggested in the two articles will, I submit, be found
sufficient to keep zones of operations clear from the
intrusions of journalists and war-correspondents when
aviation is enlisted in the service of the Press, as indeed
it has already begun to be. Reference should be made
to pages 45, 50, and 52 supra. Of course, if neutrals
or enemy civilians add to their offence by committing
a hostile act, or by obtaining information on behalf of
the enemy, the belligerent is entitled to inflict upon
them the still heavier penalties entailed by unqualified
belligerency or espionage.
vii TREATMENT OF PRIVATE AIRCRAFT. 77
The " orders " referred to in the second paragraph
of Article 6 would be, e.g., an order to follow a
belligerent's military aircraft, or an order to proceed to
a designated place. The " prescribed signal or warning
to land " will have to be arranged between the Powers. 1
The forbidden regions are purposely defined vaguely
in the first paragraph ("zone of operations," "in the
vicinity of "). Their limits will be a question of fact,
to be decided by the belligerent affected, and the only
safe rule for private aircraft will be to shun any place
as to which a doubt can exist whether it comes within
the prohibition or not. To make an exception for
cases of error and force majeure would be to open the
door to evasions of the rule.
Sequestration of such Aircraft an insufficient
Deterrent
The suggestion that neutral aircraft should be con-
fiscated if they enter a belligerent's zone of operations
goes somewhat beyond the rule laid down by the
Institute of International Law at its Ghent session of
1906, for the treatment of balloons equipped with
wireless apparatus. The Institute's rule provided that
neutral balloons should only be confiscated if by their
wireless messages to the enemy they could be con-
sidered as being in hostile service. If this could not
be established, it was laid down that the balloons with
their crews should be expelled from the zone of opera-
tions, but that the wireless apparatus should be seized
and held until the end of the war. This rule is not, of
1 See the note on p. 157, post, as to the "prescribed signal" under
British law.
78 AIRCRAFT IN WAR vn
course, an official international agreement and merely
represents what the Institute think an international
agreement should provide. The great progress of
aviation since it was framed and the increasing use of
speedy aeroplanes, whose value as messengers, even
without wireless fitments, would be of very great
strategical value, have made, I suggest, a sterner rule
necessary for military reasons. In any case the rule only
covers aircraft equipped with wireless. Some provision
for aircraft not so equipped is necessary and sequestra-
tion seems an insufficient deterrent; private enemy air-
craft will be, if my rule, which is also M. Fauchille's and
the other French writers', is accepted, liable to seques-
tration even outside a zone of operations, and the
treatment of private enemy aircraft and of neutral air-
craft entering a theatre of operations ought to be
identical. Very great financial stakes may be in
question when civilian aircraft essay any service of this
kind and nothing less than definitive capture seems
to meet the case.
Destruction of Civilian Aircraft in Flight
In Article 7, I provide that private aircraft may
only be fired upon in three cases, viz.: (1) if they
engage in hostilities or espionage, (2) if they disobey
a signal to land, (3) if, in very special circumstances,
the belligerent concerned is prevented by imperative
military necessity from giving such a signal. The
reasons for which the third provision has been inserted
have already been dealt with — see pages 45-46, 50-52,
supra — and I have tried to show that the rule which
the jurists propose, that private aircraft can only be
vii TREATMENT OF PRIVATE AIRCRAFT 79
destroyed after a special summons, is incompatible
with the right of military commanders to protect their
forces and pursue their operations. Under my rules,
it will be observed, no signal or warning is required
in cases (1) and (3). The criticism may perhaps be
made that, as it could not usually be established that
aircraft had been guilty of hostile acts or of espionage
until they had been ordered to descend for examina-
tion, my provision in Article 7, first paragraph, is
unjust and inhuman. It amounts, I admit, to allowing
condemnation on suspicion, but this is no new thing in
the laws of war. The conscience of war law is elastic;
it often presumes guilt when the law of peace presumes
innocence ; suspicious circumstances are often enough
to entail punishment — e. g., in the case of the spy in
land war. If private airmen engage in acts which are
capable of being construed (perhaps misconstrued) as
injurious acts, and which can only be prevented by
immediate hostile action, they must pay for their
foolhardiness or their ignorance by being treated as
if they were really offenders. They should have
avoided the dangerous conditions. It may be thought
that paragraph (1) of the article proposed by me is
unnecessary, as the case of hostile action or espionage
can be dealt with under paragraph (3). But I can
imagine cases in which "humanity" would not
" demand " that private enemy aircraft (or neutral)
should be given an opportunity of proving their inno-
cence of such offences. If, for instance, a civilian
airman discharged explosives or was clearly and
unmistakably engaged in observing a belligerent's
movements and signalling his information to the
hostile forces, there would be no reason whatever
80 AIRCRAFT IN WAR vn
against shelling him without warning ; non-combatants
who meddle with hostilities cannot claim preferential
treatment over proper combatants.
Article 7 applies to neutral as well as enemy aircraft
(see Article 20, later). If neutral airmen, not in the
enemy's service, engage in hostilities against a belli-
gerent, they are not only liable to the risks and
penalties sanctioned by International Law, with which
alone I am concerned, but they may also be punishable
under the national laws of the belligerent, if the latter,
in his right of sovereign of the air, has " closed " his
atmosphere against foreign airmen, They are there-
fore liable to penalties under the internal law — the
lex loci — quite apart from any penalties authorised by
the laws of war, which are really only the deterrent
rules which a belligerent enforces in order that he may
be able to carry on his operations without interference.
Seizure of Neutral Aircraft found in Belligerent
Territory
Article 18 of my draft code provides that a belli-
gerent may sequester (or destroy if he cannot remove)
neutral aircraft found in hostile territory which he
invades, but that such aircraft may be released in
virtue of a special arrangement between the captor
and the neutral owner's State. The corresponding
provision of M. Fauchille's code goes further than my
article. His Article 28 provides that " The subjects
of a neutral State shall be treated like those of the
belligerent States as regards aircraft belonging to them
in the territories of the belligent parties." "A belligerent
State," he explains, " ought to have power to requisition
vii TREATMENT OF PRIVATE AIRCRAFT 81
aircraft belonging- to neutrals as well as to its own
nationals, and when an army invades or occupies
hostile territory it should have the right to take
possession of the machines of neutrals as well as those
of the enemy ; a premium should not be put upon
neutrality."
There is a precedent for the providing for the
requisitioning of neutral property by the State in
whose territory it happens to be in Article 19 of the
Hague Convention on Neutrality in Land War. But
that article refers only to railway material and empowers
the neutral to requisition belligerent rolling-stock to an
equal extent. Aircraft are more akin to war mate'riel
than is railway material, and belligerents would hardly
allow reciprocity in their case. But, apart from this,
the matter is one for the lex loci, not for International
Law to decide. If the belligerent's laws provide for the
requisitioning of neutral aircraft in the country when
martial law is proclaimed or a national emergency arises,
it is not for International Law to say whether such
impressment is valid or not. If the neutral national is
aggrieved, he should have been more cautious about
keeping his aircraft in a country with whose laws he
was, apparently, unacquainted. It is otherwise with
an invaded country : there, the lex loci is displaced by
the laws of war when the invader takes possession, and
the laws of war entitle the latter to carry away neutral
aircraft found there so that the enemy may not be able
to use them (as his national laws may empower him to)
if the invader is driven back. The case is therefore
one for International Law and it appears necessary to
lay down an express rule.
As regards the second paragraph of Article 18, it
c
82 AIRCRAFT IN WAR vn
may be asked, What is the use of legislating for some-
thing which is purely facultative ? I can only refer to
the precedent of Article 2 of the Geneva Convention,
1906, which states that " belligerents are free to arrange
with one another " such matters as the repatriation of
wounded prisoners, etc. It seems to me advisable to
make it clear that the rather grave liabilities of neutral
aircraft-owners under the first paragraph may be
mitigated by special arrangements between their Gov-
ernment and the belligerent ; the latter, for instance,
might safely allow the release of the aircraft if he were
assured, on the faith of an undertaking endorsed by
the owner's Government, that it would not return to
the other belligerent's jurisdiction during the war.
Seizure of Aircraft consigned by a Neutral Contractor
to a Belligerent
As regards Article 19 of my code, the rules of the
Declaration of London, which M. Fauchille makes
applicable, by cross-reference, to air conveyance of
contraband, do not appear to me to cover such a case
as that of aircraft consigned, under their own power,
from a neutral contractor's workshops to a belligerent
Government. Those rules contemplate aircraft as
ship's cargo, not " on the wing." One must recognise
a belligerent's right to intercept such air-delivered
aircraft just as much as if it were sent by sea. Of
course, his power of interception in the air, " visit "
being impracticable, will be confined to territory
belonging to or occupied by him, and it would probably
be easy for the aircraft to avoid such dangerous
vii TREATMENT OF PRIVATE AIRCRAFT 83
regions. But cases may possibly arise and some rule
seems necessary. The rules of the Declaration of
London, which regulate sea contraband and class air-
craft, of whatever kind, as "conditional contraband,"
will certainly require reconsideration with the coming
of specialisation in aircraft design, and it will be
necessary to distinguish between aircraft specifically
warlike and other aircraft. 1 My draft makes such a
distinction for air "^a^z-contraband." Contraband
articles at sea are confiscated, but it is submitted that
temporary seizure only should be allowed in the case
of aircraft consigned by a neutral contractor to a
belligerent country. Under my suggested Article 4,
private enemy aircraft can only be sequestrated, even
if designed for war, and it would be illogical to apply
to neutral aircraft on the way to become private enemy
aircraft a different and harsher rule. And if pre-
ventive seizure be the rule for warlike aircraft, it
should be the rule also for ordinary aircraft which are
seizable only if consigned to the enemy Government
or a department thereof, for such aircraft have not
become the property of the enemy State, and, more-
over, nice discriminations in matters of this kind are
provocative of trouble and generally undesirable. The
provisions of my draft article ought not to result in
any great interference with neutral aircraft ; belliger-
ents will probably learn, through their agents, what
orders for each other's Governments, or for aircraft
specifically designed or equipped for war, are held by
neutral aircraft manufacturers and will know what
aircraft to intercept and when. It is, of course, under-
1 See pp. 104 105, post.
G 2
84 AIRCRAFT IN WAR vn
stood that their power of interception can only be
exercised where they have a right to circulate — over
their own and the enemy's territories, and over the
high seas (though interception will probably be im-
practicable over the last).
VIII
THE TREATMENT OF PRIVATE ENEMY AIRCRAFT IN A
BELLIGERENT'S TERRITORY AT THE OUTBREAK OF WAR
The Maritime Rule and Aircraft
M. Fauchille has an article providing that private
aircraft in the enemy's territory at the outbreak of war,
and those arriving there in ignorance of hostilities,
having left their last point of departure before war
began, can only be seized and detained after a period
of "grace"; but such a de"lai de faveur need not be
granted to aircraft designed for use in war. This
provision is borrowed from the Hague Convention
on the Status of Enemy Merchant-ships at the Out-
break of Hostilities, which deals with merchant-ships
similarly circumstanced at the opening of hostilities,
and, in substance, expresses the hope that a belligerent
will allow them to depart, without imposing any
obligation upon him to do so. The Convention affirms
a custom which had begun to prevail in modern
practice; in 1904, for instance, Japan allowed Russian
merchant-ships seven clear days' grace after the war
began. The Convention expressly excepts from its
scope merchant vessels dont la construction indique
quits sont destines a etre transforme's en bdtiments de
SJ
86 AIRCRAFT IN WAR vm
6
guerre. Such vessels may, therefore, be confiscated.
It seems to be neither necessary nor desirable to apply
these rules to aircraft. Sea journeys, even in these
days of steam and oil fuel engines, may still be a
matter of weeks and months. Aircraft journeys will
always be a matter of hours, and it will hardly happen
that an aircraft will ascend before the outbreak of war
and arrive in hostile territory after it, in ignorance of
hostilities. And in the present state of telegraphic
communication it is unlikely that aircraft in foreign
territory already will be unaware that hostilities are
pending in time to depart. It may be, of course, that
there will be aircraft in the country which cannot
depart, owing to their defective condition or to force
majeure ; but these would probably be debarred from
leaving in any case owing to their being unable to
start before the "days of grace" were out, for a
belligerent cannot be expected to extend the period
of free departure indefinitely. Again, there is no
reason why aircraft should be treated more liberally
than seacraft in this matter (indeed, the reason is the
other way) and given an absolute right to free exit.
And, if discretion is admitted at all, the provision
recommending free departure as desirable would quite
possibly become a dead letter. In the case of merchant
vessels, experts can judge in most cases whether a ship
has been designed for use in war or not. At any rate,
there can be no doubt as to many merchant ships, that
they are quite unsuitable for any warlike purpose.
But every aircraft that can fly at all could be employed
in war in some way or other — reconnaissance, observing
the effects of artillery fire, carrying messages, etc. If
the Hague rules were applied, there would be a
vm -DAYS OF GRACE" FOR AIRCRAFT 87
tendency, not only to exercise the right to detain
aircraft clearly designed for war — those with armoured
protection for the pilot and observer, 1 for instance, or
fitted to take a machine gun, 2 or with bomb-dropping
apparatus installed 3 — but to extend it to aircraft which
would be specially useful in war (like Scout biplanes
and fast monoplanes, 4 biplanes with roomy nacelles
that could carry a couple of staff-officers, 5 those fitted
with wireless installations, 6 etc.), or even, perhaps,
with a little straining of the belligerent's conscience,
to all flying machines except such as are unsafe and
therefore might be allowed to depart not only with
no loss but with actual advantage.
The Rule of Sequestration should be Upheld
M. Le Moyne gives an additional argument against
the ddlai de faveur, namely, that aircraft, unlike ships,
1 Such as the Bristol " Scout" and the Bleriot armoured monoplane, in
which the pilot is protected by bullet-proof nickel steel.
2 Such as the Vickers "Type iS B. Fighting Biplane,'' with an auto-
matic gun in the nose, the Avro " Gun-carrying Push Machine," and the
M. Farman military type biplane with Lewis automatic gun, shown at
Olympia. The Borel monoplane shown at the Paris show in 191 3, with a
machine-gun far out in front and the propellor at the rear of the tail-plane
and rudder, is another example. There is a Nieuport (tandem) monoplane
fitted to take a gun for firing upwards and backwards.
3 Such as the Bristol tractor biplanes supplied to the Roumanian army :
they have an apparatus under the passenger's seat holding twelve bombs
which can be released by the foot, and also vertical and horizontal
sighting apparatus. The Farmans have also a bomb-dropping and
sighting apparatus.
4 Such as the Sopwith "Scout," Bristol "Baby," and Arro "Scout"
among biplanes, and such monoplanes as the Bonnier, Deperdussin,
Nieuport, or Morane-Saulnier.
6 Such as the Grahame-White five-seater, etc.
6 Such as the Brdguet, shown at Paris in 191 3, or the Henry Farman,
shown at Olympia in 1 9 1 4, the installations of which are said to have a
range of 120 and no miles respectively. Seaplanes have actually sent
wireless messages over 100 miles, and land aeroplanes over 50.
88 AIRCRAFT IN WAR vm
may be spread all over a territory instead of confined
to the coastline, and therefore, if allowed to depart,
would be crossing the enemy's atmosphere just at the
time of mobilisation and concentration. But this could
be provided for by the aircraft being returned to their
country by ship or rail, or, at any rate, by such a route
as the authorities of the country would direct, and by
care being taken that their crews did not observe the
military preparations. All things considered, however,
I think that the best working rule, and a not inequit-
able one on the whole, is to treat private aircraft in
hostile territory when war begins, or arriving there in
ignorance of hostilities, in the same way as all other
private enemy aircraft and to make them liable to
sequestration. If aircraft owners appear to be more
severely dealt with under such a rule than are ship-
owners under the Hague rule, it must be remembered
that the latter are liable to burdens which the former
escape, viz., the liability to have their vessels
requisitioned, if detained, or even confiscated, if
considered by the belligerent to be designed for war.
IX
AIRCRAFT AND THE 'ALABAMA RULE
Arguments for and against an "Alabama " Rule for
A ircraft
In a paper entitled "War Law for Aircraft" contri-
buted by me to the Army Review for April, 19 14, the
suggestion was put forward that the rule of maritime
neutrality under which a neutral Power is bound to
use the means at its disposal to prevent ships intended
for use by a belligerent from being built in and
dispatched from its jurisdiction, should be extended
to the case of aircraft. In that article I wrote : —
" The reason for the maritime rule is that an armed
ship differs from all other munitions of war in the
degree in which it approaches to a complete means of
attacking the enemy, and that if such a ship is built in
and dispatched from a neutral port, to be used by a
belligerent, the neutral port has in fact served as the
" base " of an " expedition " against a friendly Power.
And it is not necessary that the ship should be fully
armed or manned to make it incumbent on the neutral
State to prevent its departure : witness the case of the
Alabama, which only received her guns at Terceira.
89
9 o AIRCRAFT IN WAR ix
An aircraft is more akin to a warship than to other
kinds of war matiriel : it is capable of doing damage
the moment it leaves the neutral territory, for, apart
from its employment on the service of observation, a
speedy and perhaps armour-protected war aeroplane
could capture or destroy the private aircraft of the
enemy by the use of bombs or such a mobile weapon
as the Lewis automatic gun, just as a ship designed for
war could capture merchant vessels with the small arms
of her crew alone. Against the view which I have
taken, however, must be weighed the action of the
French Government at the beginning of the Italo-
Turkish War. That Government was approached by
Italy with a view to the prevention of the export from
France of aeroplanes destined for the use of the
Turkish forces. The French reply, as explained by
M. Poincare in the Chamber of Deputies, on
January 22, 191 2 (see the Revue de la Locomotion
ae'rienne, February, 191 2), was that aeroplanes came
under the same rules as war material generally, even
if they were destine 1 s a projeter des bombes, and that
therefore their export was not forbidden by the laws of
neutrality. I cannot see how this view can be defended
if the opposite view is sound and necessary where sea
vessels are concerned. The fact that aeroplanes can
be built and equipped with a celerity and secrecy which
are impossible in ship-building is immaterial ; a belli-
gerent Government would make it its business to learn
what aircraft are being built in neutral contractors'
workshops for its enemy's orders and would warn the
neutral authorities accordingly."
ix AIRCRAFT AND "ALABAMA" RULE 91
Practical Objections to Applying the Rule to Aircraft
On further consideration, I have come to the con-
clusion that the suggestion to apply the maritime rule
to aircraft is hardly practicable. Theoretically it
ought to be applied. If, as is suggested, belligerent
aircraft are forbidden to enter or leave neutral territory
or waters, whereas seacraft are not debarred from put-
ting into neutral ports and leaving again, there would
be a still stronger ground for having an Alabama rule
for aircraft than for seacraft ; that is to say, it would
be still more necessary, on first principles, to hold a
neutral State responsible for allowing aircraft, not yet
the actual property of a belligerent, but destined for
his use and for employment in the current war, to
depart freely from its jurisdiction. But the practical
difficulties in the case of aircraft are very great.
Whenever a war broke out in any part of the world,
however distant, every neutral State would have,
practically, to picket with officials all the aircraft manu-
facturers' yards in the country. There would be
lacking the existent machinery of port and harbour
officials which can be relied upon to prevent sea
vessels from compromising the State's neutrality. It
appears to me, on reflection, that the extension of the
maritime rule would throw too onerous and difficult a
duty upon neutral countries and that for this reason it
is not " practical politics." In any case the commercial
damage which would be wrought by an aircraft
smuggled out of neutral territory for a belligerent's
service would never be as serious as that wrought by
the Alabama and Georgia in the Secession War ;
and although the potential military advantage which
92 AIRCRAFT IN WAR ix
even a single aircraft represents might be of more im-
portance than any commerce-destroying service, it
must be remembered that a neutral State is not bound
to prevent the export of munitions of war and would
not be responsible if a belligerent purchased from a
neutral contractor howitzers and torpedoes capable of
destroying his enemy's entire army and fleet.
The Hague Conventions on Neutrality in Land
War and in Maritime War (Article 7 of each) state
expressly that "a neutral Power is not bound to pre-
vent the export or transit, on behalf of one or other
belligerent, of arms, munitions, or anything which can
be utilised by an army or fleet." There can be no
question, therefore, of a neutral Government being
bound to prevent its nationals from selling or convey-
ing to a belligerent such component parts, even of
war aeroplanes, as propellers, tractors, rudder-bars,
warping-levers, fusilages, booms, struts, skids, cables,
plane or balloon fabrics, etc. The aircraft or the parts
referred to could be seized by the other belligerent on
their way to the enemy, but their being furnished to
the latter by neutral nationals would not constitute an
unneutral act on the part of the neutral State itself.
A neutral Government must not itself supply any
munitions, aircraft, parts or accessories of aircraft, or
anything for use in war, to a belligerent. This is clear
from Article 6 of the Maritime Neutrality Convention.
If a Power contracted to sell its obsolescent or surplus
aircraft to another Government, and the latter became
involved in war before the delivery, the contract would
have to be suspended. Direct assistance of a
belligerent by a neutral Government is strictly pro-
hibited by the laws of neutrality.
X
THE TREATMENT OF CIVILIAN ENEMY AND NEUTRAL
AIRMEN
MM. Fauchille s and Bellenger s Stiggestions
M. Fauchille proposes that, when a civilian enemy
aircraft is seized, the crew should not be made prisoners
of war, but allowed to go free on their undertaking
not to engage in any service connected with the war,
while hostilities last. M. Bellenger goes farther than
M. Fauchille, and states that the crews of such seques-
trated aircraft should be left free to return to their own
country without giving any undertaking. I am more
than doubtful whether captors will grant the crews
even the conditional liberty which M. Fauchille recom-
mends. An airman is, in war time, a very valuable
asset to his country. He is even more valuable than
is the captain or officer of a merchant vessel. Yet the
captains and crews of merchant vessels were always
held as prisoners of war until the Hague Convention
of 1907, on Restrictions on Capture in Maritime War,
introduced a milder practice. I do not think that it is
likely that a similar concession will be made to captured
civilian airmen, at all events until they cease to be such
rare and valuable specialists as they are at present. In
93
94 AIRCRAFT IN WAR x
my draft code I propose that it should be provided that
private enemy airmen are entitled to the privileges of
prisoners of war. There is nothing to prevent the
captor from allowing them their freedom if he so
desires.
Civilian enemy airmen whose machines are confis-
cated for having approached a scene of operations or a
belligerent's forts or garrisons, or for disobeying a
signal to land, may fairly be regarded as having been
punished sufficiently by the loss of their property.
They should therefore be treated like the crews of
sequestrated enemy aircraft, that is, if the captor
detains them, he must grant them the privileges of
prisoners of war. (See Bellenger, La guerre adrienne,
p. 102.)
If the confiscation is in respect of espionage or
improper participation, to whatever degree, in hostili-
ties, the culpable civilian airmen are not entitled to
the rights of prisoners of war and may be brought
before the courts, i.e., before councils of war trying
offences under the laws of war.
The Treatment of Captured Neutral Airmen
So, too, may neutral airmen guilty of espionage or
hostile acts ; but otherwise the treatment of neutral
and enemy airmen will differ with the different motives
for seizure applying in the two cases. Private enemy
aircraft and their crews are seized and detained in
order to deprive the enemy of mat trie I and personnel
which would otherwise be available for his use.
Neutral aircraft, on the other hand, apart from cases of
espionage and hostile acts, are only confiscated on ac-
x TREATMENT OF PRIVATE AIRMEN 95
count of acts which may be held to be sufficiently
penalised by the confiscation l (these acts being, if my
suggestions be accepted — see Articles 6 and 20 — such
acts as approaching a scene of operations, or disobeying
an order to land), and are only sequestrated because
they are, or would shortly be, at the enemy's disposal
if not seized. There is not the same reason for de-
taining the airmen themselves as there is for detaining
airmen who are enemy nationals. The complete or
temporary loss of their machines ought to act as a
sufficient preventive against a recurrence of the acts
for which they have been punished, including the
keeping of their aircraft in a belligerent's territory,
and the conveying of a warlike aircraft to a belligerent
national or of an aircraft of any kind to the belligerent
Government.
Neutral Airmen in Enemy Aircraft
Neutral nationals who take military service with a
belligerent, whether as airmen or in any other capacity,
are treated like ordinary belligerent troops. They
have, in fact, taken on the character of belligerent
nationals for the time being and ceased to be neutrals.
They are, therefore, if captured, held as prisoners of
war in the usual way. If, however, they have not
enrolled themselves in the belligerent's forces but have
merely been acting as pilots of private enemy aircraft,
they cannot be considered to have wholly lost their
neutral character and may fairly be granted the
1 The neutral airmen may, however, be liable to penalties under the
national law of the belligerent, as, for example, if they have violated a
general prohibition of the circulation of neutral aircraft. Such penalties
are incurred under the lex loci, not under International Law.
96 AIRCRAFT IN WAR x
privileges extended to neutral subjects serving on
belligerent merchant vessels by the Hague Convention
on certain Restrictions on the Exercise of the Right of
Capture in Maritime War. In giving them their
liberty, the belligerent captor can take measures to
ensure that their release will not operate to the
advantage of his enemy and he has no further interest
in detaining them in captivity. If, having given an
undertaking not to return to the other belligerent's
country nor to assist him in any way, they break their
promise and are recaptured, they would not again be
granted their liberty but would be detained as
prisoners.
As the rules suggested for applications in the cases
referred to are somewhat complicated, I have tried to
set them out clearly in the tabular statement that
follows.
TABULAR STATEMENT SHOWING THE
TREATMENT OF BELLIGERENT AND
NEUTRAL- AIRCRAFT AND AIRMEN
WHEN THEY FALL INTO THE OTHER
BELLIGERENT'S HANDS
97 II
XI
THE RELATION OF AERIAL LAW TO EXISTING CONVEN-
TIONS
Necessity for a Special Code
The necessity for a special code for aircraft may
be questioned — and, indeed, has been questioned by
Professor Meurer — on the ground that aircraft will be
merely auxiliaries of armies and fleets and will there-
fore be regulated by the rules which govern land and
maritime war respectively. Here, again, one finds a
misconception of the character and role of the new
arm. A special code is necessary simply owing to the
unprecedented fact that aircraft move and fight neither
on land nor on sea. In an article of my draft code I
provide that aircraft permanently assigned to a battle-
ship and remaining in contact therewith shall be
regarded as a part of the battleship ; but, with this
possible exception, the ordinary rules will not, I think,
govern aircraft and they will have to be specially
legislated for. Their coming has brought up quite
new problems of war. Moreover, exactly the same
kind of aircraft may be used in the land and sea
services, and a naval aeroplane may quite possibly act
as an auxiliary to the army, and an army aeroplane to
H 2
ioo AIRCRAFT IN WAR xi
the fleet. If the laws of war were the same for armies
and for fleets, no difficulty would arise. But they are
not. There are fundamental differences. The unit in
sea war is the ship ; in land war, it is the individual
soldier — he must wear a uniform, carry arms openly,
etc., and is not protected from a charge of " unqualified
belligerency ' by the plea that his regiment displays
the national flag. The laws regarding passage through
neutral territory or territorial waters are quite different
in land and sea operations. It would obviously be
objectionable to apply to aircraft a double set of rules
which are in disagreement on many important points.
Further, as the laws of land and sea warfare differ as
regards the treatment of private property, how, without
some special code, could one deal with a question
respecting such property when it is not clear whether
it comes within the domain of sea or of land warfare,
as, for instance, in a case arising in a besieged and
blockaded port ? One has only to imagine, if one can,
the kind of problem which will arise in connection with
aircraft, to see that a separate set of rules is absolutely
necessary.
A Single Code for all Aircraft possible
There does not appear to be any practical difficulty
in bringing all aircraft, naval and land, under a single
code for the air ; and this would be in accordance with
the principle of the Voeu expressed by the last Hague
Conference, " that the Powers should apply, as far as
possible, to war by sea the principles of the Convention
relative to the laws and customs of war on land." The
question of a code for sea warfare corresponding to the
xi AIR LAW AND EXISTING CODES 101
Reglement for land warfare is to be discussed at the next
Hague Conference. A draft project on these lines
was presented by M. Paul Fauchille to the Institute of
International Law at its Oxford session of 191 3. 1
It may, therefore, be fairly maintained that airmen
serving with a fleet shall be considered subject to the
general rules of the Reglement and for this I have
provided in Article 3 of my code ; they would also
come under the domain of such enactments as the
Declaration of St. Petersburg, and the Hague Declar-
ations relative to Asphyxiating Gases and Expanding
Bullets. A military airman is a soldier or sailor as
well as a flying man, and in all that affects him in the
former capacity he is bound by the same rules as any
other member of the armed forces of his nation. He
must not, e.g., because he is an airman, refuse quarter,
use poisoned arms, or explosive or expanding bullets,
etc., and he is entitled, if wounded, to the protection of
the Geneva Convention. The laws and customs of
war, as defined in the great Conventions and Declar-
ations, correspond to the ordinary law for the soldier
or sailor on service, and a military airman is bound by
their terms as well as by the special code which governs
aircraft.
The Scope of the Aerial Code
The exact defining of the boundary to be assigned
to the scope of the special code is a matter of some
difficulty. This difficulty is especially marked in
questions concerning neutrals, though one finds it to
a less degree in such questions as espionage and
1 Sec the Atmuairc of the Institute for 191 3, and the Revue de Droit
international, January-February, 1914.
102 AIRCRAFT IN WAR xi
bombardment. There are at present two quite distinct
Neutrality Conventions, one for land and one for sea
warfare. Both of these Conventions contain provisions
relative to the supply of material of war to belligerents.
Under neither does the supply of aircraft naturally
fall. The Maritime Neutrality Convention imposes on
neutral States the duty of preventing" the export from
their jurisdiction of vessels destined for a belligerent's
use in the war. In view of the analogy between sea
and air vessels, it might be thought that they were
similarly bound to prevent the export of aircraft ; but
for reasons already stated (see p. 91), it will probably
be ruled that no such obligation arises in the case of
aircraft, and the rule on the subject should, therefore,
for the sake of clearness, appear in the special code.
And if one rule governing the supply of aircraft by
neutrals appears, any other rules which are required to
make the air law of the question complete and beyond
doubt should also appear. Again, both of the exist-
ing Conventions have articles dealing with the use by
belligerents of wireless apparatus in neutral territory.
The use of such apparatus by belligerent aircraft is a
question which does not pertain properly to either Con-
vention and which ought to be legislated for in the
special code.
It is much to be desired that some future Peace
Conference should consolidate the two existing Con-
ventions into one single Convention and add thereto
any rules affecting aircraft. There would then be one
general Convention on neutrality for land, air, and sea.
Until this is done it seems necessary to include in the
air code some provisions which may appear at first sight
to be out of place in such a body of rules.
XII
SOME SUGGESTED MODIFICATIONS OF THE LAWS OF LAND
AND MARITIME WAR
Flight and International Law generally
The development of night will necessitate a special
code for the air, but it will also lead to some amend-
ments and additions being made in International Law
generally. There are a few questions which are not
so much specific "flight" questions as questions prim-
arily and principally of the laws of land and sea war-
fare arising at the point where these latter laws are
brought into contact with the new science. Such
questions as sea contraband, armistices, parlementaires,
military occupation, and the destruction and seques-
tration of private property in land war, as affected by
the introduction of aviation, are more properly dealt
with under the rules of sea or land warfare than under
an aerial code. To the five points mentioned I shall
refer briefly in this section, while the next section will
be devoted to a more difficult question, the question of
attacks by non-military persons on isolated enemy
airmen. It would be rush to say that these are the
only questions of the kind. Without doubt time will
bring many more to light, but it is sufficient at present
to discuss the few to which I refer.
'°3
io 4 AIRCRAFT IN WAR xn
Contraband of War at Sea
The Declaration of London, which, although not
ratified by Great Britain, may be taken as representing
an accepted rule of the unwritten law of maritime war
for the present purpose, classes as "conditional contra-
band " :
" Balloons and flying machines and their distinctive
component parts, as well as accessories, articles and
materials distinctively pertaining to aerostation or
aviation."
"Conditional contraband" is liable to be captured
if proved to be destined for the use of the armed
forces or departments of the enemy Government.
It differs in this from "absolute contraband," which is
confiscable if merely bound for the enemy's territory
and consigned to private individuals or firms therein.
The reason for the distinction is that "absolute contra-
band " consists of articles exclusively used in war,
whereas "conditional contraband" includes articles
anticipitis usus, or things which can be used for purposes
of war and peace indifferently. Since the Declaration
was drafted, aircraft have begun to be specialised for
war, and the specialisation is likely to be further empha-
sised as time goes on. It will probably be found neces-
sary to class certain types of aircraft — those fitted to take
a machine-gun or with bomb-dropping mechanisms, or
with armoured protection for the pilot and observer —
as " absolute," and ordinary types as " conditional
contraband." Such a distinction was made in the
Declaration of London in the case of clothing, equip-
ment, harness, etc., which are "absolute" or "con-
xii FLIGHT AND WAR LAW GENERALLY 105
ditional contraband " according as they are " of a
distinctively military character " or not.
Aircraft and Armistices
The other questions concern land war. The rule
that is sometimes laid down by jurists that, during an
armistice, a commander may not alter his dispositions
or move up new troops, even within his advanced
lines, because, if there had been no armistice, the
enemy might have prevented him from doing so, finds
no support in practice. The rule followed in modern
armistices has been that each belligerent retains his
right to do everything which is not specifically forbidden
in the terms of the armistice and which does not
amount to the resumption of hostilities. In the wars
of the future, if there be no express agreement on the
point, it would be easy for the aircraft on each side,
without going beyond the advanced lines, to spy out
whatever is happening within the other lines if the zone
of demarcation is not a very wide one. In fact, there
will be similar questions to that which arose in 1878,
when Todleben erected high observation posts along
his lines during the armistice of San Stefano, and Fuad
Pasha, fearing that his troops' entrenchments would be
overlooked, threatened to open fire on the posts if
they were not removed. Perhaps, where the zone of
demarcation is necessarily a narrow one, it will be
necessary, in arranging the terms of the armistice, for
the commanders on each side to agree not to send up
their aircraft during the suspension of hostilities.
106 AIRCRAFT IN WAR xn
Flags of Truce and Military Occupation
The difficulties in connection with parlementaires
and military occupation will be, in the former case, that
an aircraft coming with a flag of truce would have an
opportunity of observing the enemy's dispositions, and,
in the second, that there may be a tendency to con-
sider a territory effectively occupied if it is visited by
an occasional aircraft representing the authority of a,
perhaps, far distant enemy commander. It will
probably be found necessary either to declare aircraft
ineligible as parlementaires or to enforce a strict rule
that they must land (and the airman be blindfolded) at
a considerable distance outside the lines of the troops
to whom the flag of truce is sent, and military occupa-
tion will probably not be considered effective unless
the aircraft are supplemented by some land force-
mobile columns, etc.
The Destruction of Enemy Property
The Hague Reglement (Article 23(g) ) forbids the
destruction of enemy property "unless such destruc-
tion be imperatively demanded by the necessities of
war " : that is, it recognises, by implication, that sound
military reasons may justify the destruction of any
kind of property. It also provides for the requisition-
ing of enemy property or services for the needs of an
occupying army. The latter can demand supplies from
the local inhabitants, or can call upon them to carry
out any service which does not involve taking part in
military operations against their own country. Requi-
sitions in kind have to be paid for, under Article 52 of
xii FLIGHT AND WAR LAW GENERALLY 107
the Regle?nent. But no provision is made for payment
for any services which the inhabitants may be forced
to render or for any loss they may sustain through the
justifiable destruction of their property for military
reasons. It is in respect, especially, of this latter kind
of loss that cases of hardship are likely to arise in
future wars. The burnino; of woods and forests will
probably be a feature of future campaigns. Wooded
country will be chosen for the movements of troops
because it will afford them concealment from the
enemy's aerial scouts, and an army which anticipates
the delivery of an attack through country of this
description will not hesitate to destroy the cover which
might facilitate the enemy's advance. Private in-
dividuals may see their valuable timber destroyed
without having, as the Reglement stands, any hope of
redress. It is to be desired that the next Ha^ue Con-
ference will amplify the rule as to payment by bringing
under its scope cases in which property is destroyed as
well as those in which it is seized.
The Seizure of Private Materiel and Indemnities
tlwefor
The drafts of MM. Fauchille, d'Hooohe, and Le
Moyne provide that sequestrated private enemy air-
craft shall be restored to the owners at the peace with-
out indemnity. In my proposed Article 4 I have
followed their view and my reasons for doing so are
stated on page 38, supra. Article 53 of the Hague
Ki tdement stipulates that indemnities shall be paid
in respect of any private property utilisable in war,
including aircraft, which is seized by a belligerent
108 AIRCRAFT IN WAR xn
in war on land. It would be better if it were
laid down that the actual property seized must in
all cases be restored except where its destruction is
demanded by the necessities of war. An invader who
takes possession of private stores of war maUriel should
not be allowed to make use of such materiel against
the national forces of the owners : and the principle of
the seizure, namely, that it is a deposit in safe keeping
and returnable in actual substance at the close of
hostilities, would be emphasised if the reference to
indemnities were deleted.
XIII
ISOLATED ENEMY AIRMEN AND ATTACKS BY
NON-MILITARY POPULATIONS
Aircraft Raids
The relation of a non-combatant population and raid-
ing- or scouting enemy aircraft is a question which will
probably give rise to difficulties. It will be a long
time before war sees " Jeb Stuarts of the air" leading
great masses of aircraft — scores of flights and escadrilles
— in daring raids into the heart of a hostile country ;
but one can imagine as realisable and indeed probable
the case of a belligerent aeroplane landing for some
purpose in enemy territory and the local inhabitants
surrounding and overwhelming the isolated airman.
If, a few days later, the troops to which he belonged
march into the place, can they arrest, try, condemn,
and execute the inhabitants concerned as unqualified
belligerents ?
The Law of Land War
The rule of war is that, with one exception and one
only, hostilities may only be carried on by a country's
accredited agents of warfare, its properly authorised
109
no AIRCRAFT IN WAR xm
troops, whether Regular, Reserve, or Territorial, Active
Army, Landwehr or Landsturm, First Ban, Second Ban,
or Third Ban, Nizam, Ichtiat, Redifor M ustchafiz. The
only exception is the case of what is called the leve'e en
masse, that is, the case of a spontaneous rising in force
by the inhabitants of a territory not yet occupied by
the enemy, with the object of resisting the invaders.
The persons who make up the leve'e must carry arms
openly and must respect the laws of war, but they need
not have the " fixed distinctive sign recognisable at a
distance " nor the military organisation, both of which
are required of troops generally. Any civilians who
engage in hostilities without coming under the scope of
this exception may be treated as " unqualified com-
batants " and shot after their culpability has been duly
established. The rule is stern because it represents
the price which populations have had to pay to
belligerency for allowing a sharp line to be drawn
between the warlike and unwarlike parts of a com-
munity. If an invader grants immunity to the non-
combatant residents of the enemy country, he grants
it on the condition that they remain non-combatants
whether he comes in strength or in weakness. A
halting between two opinions as to one's status as
fighting man or civilian is not tolerated by the custom
of war.
Aircraft Raids when there is Invasion
The cases which have actually arisen in modern war
have, from the nature of things, been cases of attacks
upon isolated scouts, detachments, stragglers or orderlies
who were separated by no great distance — not more
xin ATTACKS ON RAIDING AIRMEN in
than by a march or two — from the force to which they
belonged. They have been cases where the hostile
army has been, so to speak, within call. And this
propinquity, this power to follow hot-foot upon any
irregular attack, has an important bearing on the
question. If the enemy are at the gates, it may fairly
be assumed that the inhabitants of neighbouring
districts have already made up their minds whether
they are to be fighting men or not. If they mean to
strike a blow for their country, they can do so by
banding themselves together in force, by setting them-
selves apart from the ordinary civil population, and by
carrying arms openly. They can make their character
absolutely unmistakable by forming a massed levy.
In the imaginary case cited above, it is assumed that
the attack on the isolated airman is delivered by
persons who claim to be and appear to be non-
combatants when the enemy comes in strength. Such
persons can justifiably be treated by the invader with
all the rigour of the laws of war. Their case is, at
bottom, analogous with that of the French peasants
who attacked the Uhlan scouts in 1 870-1 and were
severely punished by the Germans in all cases. 1
1 The action of the German commanders is approved by the French
writer Brenet, who points out the uselessness of the French peasants'
resistance : " It must be admitted that their (the Ftatics-(ireurs') desultory
efforts, their shots at the German vedettes, simply envenomed the War
without breaking the force of the German advance. Some Uhlans fell,
but, behind them, pressed on, without one hour's delay, the advance of
the main bodies." — La France el PAllemagne devant le droit inter-
national, p. 6. " If," he says, "the (non-military) inhabitant takes part in
the desperate struggle of his compatriots, if he has everything to fear
from the triumph of the enemy, can he not throw off his peaceable status,
may he not arm himself to stop the invader's march? No, that is
forbidden by the law of nations ; for, if it were allowed, the enemy
soldier, who is the victim of an irregular attack which was not anticipated
ii2 AIRCRAFT IN WAR xm
Aircraft Raids when there is no Invasion
It is different where the invader has not set foot on
the soil. In these days of aerial flight, when non-stop
journeys of 600 to over 1000 miles have actually been
achieved 1 and when the radius of action of aircraft is
ever widening little by little, it is clear that even an
island Power which holds command of the sea is not
free from the intrusion of scouting enemy aircraft.
Despite all England's strength at sea, her cities will
lie as open to raids in the wars of to-morrow as
Carlisle did in the days of the Border forays. Suppose,
then, that the army of the foreign Power has not
yet set foot in the territory in which the airman
is attacked, that, say, a fellow airman who was
accompanying him escapes and informs his superiors
of the incident, and that subsequently the country is
invaded and the scene of the attack occupied by the
enemy's troops. Are the local inhabitants liable to
punishment under the laws of war? It is submitted
that they should not be so considered. The case is
without precedent in theory or practice, and must be
considered on its merits. When the airman was
attacked the laws of war were not in force in the
country ; no part of it was occupied by the invading
army and it is only when an invading army comes that
would be justified in turning ruthlessly upon his assailants and exacting
vengeance by every means. War would become an extermination, no
longer a chivalrous struggle but simply an abominable butchery, before
the horror of which the imagination recoils." — Ibid., pp. 3-4.
1 M. Seguin's journey of 646 miles, M. Gilbert's of 650, and M.
Brinjedonc-des-Moulinais' of about 838, have lately been put in the
shade by the wonderful non-stop flight of Herr Ingold ot over 1300
miles at Miihlausen.
xin ATTACKS ON RAIDING AIRMEN 113
the laws of war begin to run — it carries them, so to
speak, on its bayonets. They extend, it is true, beyond
the ground on which the invader stands and they must
be respected wherever any detached portions, or even
single soldiers, of the invading army go. But it is
impossible to admit that they can be called into being
by the presence of a single airman, or of two or three
airmen, whose army has not passed the frontiers and
who claim a right to privileges which arise from and
only rest upon the power to enforce them. Moreover,
when an aeroplane drops from the clouds, there is no
time for organising a levde en masse. The law of war
recognises the right of populations to spring to arms
when the invader comes, and if the new condition of
things has made it impossible in some cases to do so
in the exact manner contemplated in the Reglement,
populations should not be made to suffer because the
world has moved on.
APPENDIX I
A Code for Aircraft in War, as Proposed by
the Author
ARTICLE 1. — An aircraft shall be considered to be a
military aircraft and its crew to be belligerents provided
the aircraft is under the direct authority, immediate
control, and responsibility of a belligerent Power, that it
bears the distinctive sign of its character as a military
aircraft of the said Power, irremovable and recognisable
at a distance, and that its crew are subject to military dis-
cipline, observe the laws and customs of war, and wear
the uniform or other distinguishing emblem of their
national forces.
See pages 72-74, supra, and Fauchille, Articles 1
and 4, Peace Code. The wording of the above Article
is based on that of Articles 1 to 5 of the Hague
Convention relative to the Conversion of Merchant-
ships into War-ships, and of Article 1 of the Hague
Reglement.
ARTICLE 2. — The crews of all other aircraft engaging
in any act of hostilities may be brought before the courts
as unqualified belligerents, and the aircraft may be
confiscated.
An "act of hostilities" includes the conveyance of
individual passengers who are embodied in the armed
forces of the enemy, the transmission of intelligence in
the interest of the enemy (whether by carrying messages
114
APPENDIX I 115
[Code Proposed by the Author
or despatches, or by the use of code lamps, signals, or
wireless telegraphy), and the carriage of munitions of any
kind.
See Fauchille, Articles 2 and 3, War Code, and
pages 51, 76, 97, supra.
The expression ' ' brought before the courts ' is
borrowed from Article 12 of the Hague Reglement,
which provides that prisoners of war liberated on
parole and recaptured bearing arms may be brought
devant les tribtinaux. The courts in question will be
councils of war, trying offences under the laws and
customs of war. In addition to any punishment
awarded by the council of war for the improper
participation in hostilities, the aircraft itself will be
treated like an enemy military aircraft and confiscated.
The wording of the second paragraph is based, for
the most part, on the chapter in the " Declaration of
London," 1909, dealing with " L'assistance hostile."
ARTICLE 3. — The crews of military aircraft are, in
respect of everything that concerns them as individuals in
the armed service of a belligerent, under the domain
of the various Declarations and Conventions which
regulate war and neutrality, so far as the said Declarations
and Conventions are not inconsistent with the provisions
of the present code.
See Fauchille, Article 4, War Code, and pages 100-
101, supra.
ARTICLE 4. —Private enemy aircraft may be seized
by a belligerent, but they must be restored at the peace
without indemnity ; or, if their destruction be imperatively
demanded by the necessities of war, the compensation to
be paid shall be arranged at the peace.
The above provision applies equally to private aircraft
designed or equipped for war and to aircraft not so
designed or equipped.
I 2
n6 AIRCRAFT IN WAR
Code Proposed by the Author]
See pages 37-39, 75, supra, and Fauchille, Article 9,
War Code.
ARTICLE 5.— The neutral or enemy character of an
aircraft is determined by the distinctive sign of nationality
which it has the right to bear.
See Fauchille, Article 11.
I have taken this article, without modification, from
the codes of MM. Fauchille, d'Hooghe, and Le Moyne,
in all of which it appears. Signs of nationality will
have to be fixed by arrangement between the Powers.
Under the Ddcret of 16 Deer., 19 13, French aircraft
have to be marked with a large F. There is no
British legislation on the subject.
ARTICLE 6. — Private enemy aircraft may be confis-
cated : —
(1) if they circulate in a belligerent's zone of opera-
tions, on land or sea, or in the vicinity of his troops,
warships, military aircraft, transports, military works,
military or naval establishments, stores, depots, work-
shops, etc. ;
(2) if they disobey a belligerent's orders or his
prescribed signal or warning to land.
See Fauchille, Article 9, second paragraph, War
Code, and pages 45-46, 52, and 76-78, supra.
ARTICLE 7. — Private enemy aircraft may only be
fired apon, endangered, or destroyed in flight : —
(1) if they engage in any act of hostilities, as defined
in Article 2, or of espionage ;
(2) if they disobey a belligerent's orders or his
prescribed signal or warning to land ;
(3) if the circumstances of the case are such that a
belligerent is forced by imperative military necessity
APPENDIX I 117
[Code Proposed by the Author
to omit the signal or warning to land which humanity
demands.
See Fauchille, Article 13, and pages 45-47, 50, 53,
and 78-80, supra.
ARTICLE 8. — The crew of a private enemy aircraft
can only be considered suspected of espionage if they
obtain or seek to obtain information above the territory
or territorial waters of a belligerent, or above territory or
territorial waters occupied or held by his military or naval
forces, or above his squadrons, warships, transports, or
aircraft, or, generally, in the zone of his operations, with
the intention of communicating the information to the
hostile party.
In the case of enemy military aircraft acting in the same
way, the crew can only be considered suspected of
espionage if they disguise or try to disguise their aircraft's
real character as an enemy military aircraft, or otherwise
act on false pretences.
When an individual lands from aircraft to carry out a
service of espionage, his case falls, in accordance with the
general principle, under the rules governing espionage in
land warfare.
Persons suspected of espionage may be brought before
the courts ; they cannot be punished without previous
trial, and cannot, after rejoining their forces, be punished
on subsequent capture for past acts of espionage.
Aircraft concerned in espionage may be confiscated.
See pages 34-36, supra, and Fauchille, Article 7,
War Code. The " general principle " referred to in
the third paragraph is contained in Article 3, supra.
ARTICLE 9. — The crews of private enemy aircraft
which have not engaged in hostilities or in espionage are
entitled to the privileges of prisoners of war.
Seepages 93-94, 97, supra, and Fauchille, Article 12.
The provisions of Article 9 are subject to the
n8 AIRCRAFT IN WAR
Code Proposed by the Author]
exception in favour of neutral nationals provided by
Article 20, q.v.
ARTICLE 10. — The provisions of the Hague Conven-
tion on Bombardment by Naval Forces in Time of War
shall be applied, as far as possible, to bombardments by
aircraft.
Bombardments by aircraft must in all cases be author-
ised by the Admiral or General in command of the force to
which the aircraft are attached.
See pages 11-23, an< ^ 3°~34> supra, and Fauchille,
Article 6. The Hague Convention referred to is given
in Appendix VII.
ARTICLE 11. — Belligerent military aircraft are for-
bidden to enter the territory, territorial waters, or atmo-
sphere of a neutral Power.
See my remarks at pages 65-70, supra, and
Fauchille, Articles 7 to 10, Peace Code, and Articles 1
and 19, War.
ARTICLE 12. — A neutral Power is bound to exercise
such vigilance as the means at its disposal permit to
prevent any violation of the provisions of Article 11.
It is bound to take such measures as are necessary
and possible to take possession of belligerent military
aircraft entering its territory, territorial waters, or atmo-
sphere, whether voluntarily or under force majeure, and to
detain the aircraft until the peace.
The crew of such aircraft shall be dealt with in the
same way as the land forces of a belligerent entering
neutral territory.
See Fauchille, Article 19, and pages 65-70, supra.
Land troops of a belligerent entering neutral territory
have, under the Convention on Neutrality in Land
War, to be interned, in camps or fortresses, at some
distance (if possible) from the theatre of war ; the cost
APPENDIX I 119
[Code Proposed by the Author
of their maintenance is refunded by their Government
to the neutral State at the end of the war.
ARTICLE 13. — As an exception to the provisions of
Articles 11 and 12, an aircraft which is permanently
assigned to a battleship and usually accompanies it, shall
be regarded as forming part of the battleship so long as
it remains in actual contact therewith.
See pages 70-71, sttpra.
ARTICLE 14. — The supply in any manner, directly
or indirectly, by a neutral Power to a belligerent Power,
of aircraft, or the parts, materials, accessories, or any-
thing which can be used in the manufacture, fitting, and
arming of aircraft, is forbidden.
See Fauchille, Article 19, last paragraph, and
page 92, supra.
ARTICLE 15.— A neutral Power is not bound to pre-
vent the export or transit, on behalf of either belligerent,
of aircraft or their parts, materials, accessories, or fittings.
See Fauchille, Article 19, last paragraph, and
pages 89-92, supra.
ARTICLE 16. — A neutral Power, whose frontiers
border a belligerent's frontiers, is bound to exercise such
vigilance as the means at its disposal permit to prevent
its atmosphere from being used for the purpose of observa-
tion, on behalf of one belligerent, of the movements,
defences, etc., of the other.
This article is intended to secure the object of
Article 20 of the projet Fauchille, which prohibits the
aerial navigation of neutral countries within a radius
of 1 1,000 metres from the frontiers of a belligerent : a
grave derogation of the ordinary rights of neutrals, as
M. Renault pointed out.
120 AIRCRAFT IN WAR
Code Proposed by the Author]
ARTICLE 17. — As regards the use by belligerent mili-
tary aircraft of wireless telegraphy stations (or other
signalling apparatus) erected on neutral territory, the
provisions of Articles 3, 8, and 9 of the Hague Convention
on the Rights and Duties of Neutral Powers and Persons
in Land War, and of Article 5 of the Hague Convention
on the Rights and Duties of Neutral Powers in Maritime
War, are applicable.
See Fauchille, Article 19, and page 102, supra.
The terms of the articles referred to are given in
Appendix VIII.
ARTICLE 18.— Neutral aircraft found by a belligerent
in the territory or territorial waters of the enemy may
be treated as private enemy aircraft.
The release of such aircraft, with or without conditions,
may, however, be made the subject of arrangement
between the belligerent and the Government of the
neutral owner's State.
See pages 80-82, supra.
ARTICLE 19.— An aircraft consigned by a neutral
contractor, by way of the air, to the territory or terri-
torial waters of a belligerent, or to territory occupied by
his troops, or to his fleet or aircraft, may be seized by the
other belligerent (but must be restored, without indem-
nity, at the peace), provided either
(1) that it is designed or fitted for use in war, or, if
it is not so designed or fitted,
(2) that it is proved to be destined for the use of
the armed forces or of a Government Department of
the enemy.
Such aircraft may only be destroyed if imperative
military necessity demands, and in this case the compensa-
tion to be paid shall be arranged at the peace.
APPENDIX I 121
[Code Proposed by the Author
See Fauchille, Articles 22, 23 and 24, and
pages 82-84, supra.
ARTICLE 20. — The provisions of Articles 2, 6, 7, and
8 apply also to neutral aircraft.
The crews of such aircraft may be brought before the
courts in the same circumstances as private enemy airmen
(see Articles 2 and 8), but they shall not be liable to be
made prisoners of war by a belligerent unless they are
nationals of the other belligerent State.
Such members of the crews of private enemy aircraft
confiscated under Article 6, or sequestrated under Article
4, as are nationals of a neutral State, shall not be made
prisoners of war, provided they give a formal promise in
writing not to return to the enemy country nor to serve
the enemy in any way while the war lasts.
Their names shall be notified by the belligerent captor
to the other belligerent, who is forbidden knowingly to
employ them.
See the references under Articles 2, 6, and 7, and
the general remarks on pages 93-96, supra ; also
Fauchille, Articles 25-27.
APPENDIX II
M. Paul Fauchille's Project of a Convention
for Aerial Law, with Notes, in Square
Brackets, explaining the References to the
various Conventions, etc.
Part I. contains the rules for Peace. The only pro-
visions of this part which need be mentioned here are
the following : —
ARTICLE 1. A military aircraft is an aircraft assigned
by the State to a military duty and placed under the
command of an officer, in uniform, of the land or sea
forces. Every military aircraft must bear the distinctive
sign of its character, attached in a visible manner to its
envelope.
ARTICLE 4.— The national flag will indicate the
public character of aircraft. In the case of military
aircraft, this flag will be in the form of a pennant {tine
flamme).
ARTICLE 7.— Aerial circulation is free; but the
underlying States retain the rights necessary for their self-
preservation, that is, for their own security and that of
the persons and property of their inhabitants.
ARTICLE 8. — To ensure their right of self-preserva-
tion, States may close certain regions of the atmosphere to
circulation, e.g., the atmosphere above and around forti-
APPENDIX II 123
[M. Fauchille's Code
fied works. The parts of the atmosphere closed to
circulation will be marked by signs visible for aeronauts.
ARTICLE 9. —The circulation of aircraft is entirely
free above the open sea and unoccupied territories.
ARTICLE 10.— Military aircraft can only pass the
frontiers of their country with the authority of the State
in whose atmosphere they wish to circulate or in whose
territory they wish to land.
Part II.— War
Chapter I
THE THEATRE OF AERIAL WAR
ARTICLE 1.— Belligerent States have the right to
carry out warlike acts in any and every part of the
atmosphere above their several territories, above the
open sea, and above the sea bounding their coasts.
They are forbidden to carry out hostile acts, capable of
causing the fall of projectiles or of causing damage
generally, above the territories of neutral States, at what-
ever height, and also in the neighbourhood of these States
within a radius determined by the force of the cannon of
their aircraft.
A belligerent's military aircraft, and also his public non-
military aircraft, may not circulate above a neutral State
except with the latter's authority. But both public and
private aircraft are forbidden to remain above a neutral
country within a certain radius of the other belligerent's
frontier. The circulation of aircraft in war-time is subject
to the same restrictions as during peace.
Chapter II
THE RELATIONS OF BELLIGERENTS "INTER SE "
ARTICLE 2. —Privateering is forbidden in aerial as in
maritime war.
i2 4 AIRCRAFT IN WAR
M. Fauchille's Code]
Belligerents may, however, incorporate in their military
forces, private aircraft and their crews, on condition that
they are placed under the control of a duly commissioned
officer and carry a distinctive, external sign of their
character.
ARTICLE 3. — The conversion of private aircraft into
military ^aircraft may be made during war in the territory
or in the territorial waters of the State to which they
belong, in the territory occupied by the troops of that
State, in the open sea, and in the atmosphere not situated
above a neutral State, under the conditions laid down in
the Hague Convention of 18th October, 1907, relative to
the conversion of merchant ships into ships of war.
[The Hague Convention referred to left unsolved
the question of conversion of merchant vessels into
fighting ships on the high seas, but drew up rules for
the conversion within the converting State's territorial
waters, as follows: — (i) the converted ship must be
under the direct authority, immediate control and
responsibility of the State whose flag it flies ; (2) it
must have the external distinguishing marks of a war-
ship ; (3) the commander must be a duly commissioned
officer and his name must appear in the Navy List ;
(4) the crew must be subject to military discipline ;
(5) the ship must observe the laws and customs of
war ; (6) it must be entered in the list of commissioned
vessels as soon as possible. All the nations repre-
sented at the Hague have accepted these rules, except
the United States, China, Dominica, Nicaragua, and
Uruguay ; and Turkey made a reservation.]
The converted aircraft will preserve their military
character during the whole period of hostilities and cannot
be reconverted into private aircraft during that period.
ARTICLE 4. — The terms of the 1st Section, Chapter
II, and of the 2nd Section, Chapters I and III, of the
Hague Reglement of 18th October, 1907, concerning the
APPENDIX II 125
[M. Fauchille's Code
Laws and Customs of War on Land, besides those
expressly laid down in the following articles, will apply,
as far as possible, to aerial war.
[The chapters of the Hague Reglement referred to
relate to the treatment of prisoners of war, to the
means which may be employed of injuring the enemy,
and to flags of truce. Of special interest in connection
with air fighting, the following points from the sections
referred to may be mentioned : —
Belligerents may not (1) use poisoned arms, (2)
resort to treachery, (3) refuse quarter, (4) use arms or
projectiles likely to cause unnecessary suffering,
(5) make improper use of the enemy's flag, uniform, or
insignia, or of the Geneva flag, (6) destroy or seize
enemy property unless the exigencies of war
imperatively demand it.
The bearer of a flag of truce is inviolable, but the
enemy commander is not bound to receive him in all
circumstances and can, in any case, take all steps
necessary to prevent the bearer from obtaining inform-
ation. The parlementaire loses his right of inviolability
if proved to have use his privileged position to
instigate or commit an act of treachery.]
ARTICLE 5. — In accordance with the 2nd and 3rd
Declarations of the Hague of 29th July, 1899, the dis-
charge from aircraft of projectiles, the sole object of
which is the diffusion of asphyxiating or deleterious gases,
or of bullets which expand or flatten easily in the human
body, is forbidden.
ARTICLE 6. — The bombardment by aircraft of towns,
villages, habitations or buildings which are not defended
is forbidden.
The rules established by the Hague Conventions of
18th October, 1907, relative to Sieges and Bombardments
by Land or Naval Forces, are applicable to aerial war.
126 AIRCRAFT IN WAR
M. Fauchille's Code]
[See Appendix VII for the Convention on Naval
Bombardments, which is fuller than the Hague
Reglement for land bombardments, also given in
App. VII.]
ARTICLE 7. — Aircraft can only be considered sus-
pected of espionage if, acting clandestinely or under false
pretences and thus dissimulating their operations, they
obtain, or seek to obtain, information, above the territory
or territorial waters of a belligerent, or above territory
occupied by his troops, or, in the open sea, above one of
his squadrons or ships of war, and, generally, in the zone
of his operations, with the intention of communicating it
to the hostile party.
It is consequently a principle that soldiers, not in dis-
guise, employed on scouting duty in aircraft, and
individuals dispatched in aircraft to carry despatches and
in general to maintain communication between the
various parts of an army or of a territory, are not
considered spies.
ARTICLE 8. — The public aircraft of a belligerent
State, though not appertaining to the military service, are
liable to seizure and confiscation.
ARTICLE 9. — The private aircraft of the enemy may
be seized by a belligerent above his own or the enemy's
territory or territorial waters, and above the open sea, but
they must be restored at the peace without indemnity.
Any merchandise, even belonging to the enemy, found
on board such aircraft, is not seizable.
The foregoing dispositions do not modify the right of
confiscation which a belligerent possesses in virtue of the
rules relating to blockade and contraband of war, and
generally, in the case of private enemy aircraft perform-
ing hostile acts or being employed in a military task.
[The first paragraph of Article o is M. Fauchille's
attempt to reconcile by a compromise the divergent
views expressed by the jurists whom he consulted
APPENDIX II 127
[M. Fauchille's Code
when framing his Rapport. MM. Meili, Meurer,
Kaufmann, and Alberic Rolin desired to exempt
private enemy aircraft from seizure and destruction.
M. Renault and Professor Holland considered it more
logical to apply the (non-coded) rule of maritime war-
fare which permits their seizure and destruction. This
latter rule was the subject of discussion at the Hague
Conference of 1907 ; the United States, Germany,
Austria, Italy and other Powers were in favour of
declaring the absolute immunity from capture of private
property at sea, but as this view was opposed by Great
Britain, France, Russia, Japan and other States, the
Conference arrived at no agreement, and therefore the
old "common law" rule of International Law which
subjects an enemy's merchant vessels to capture re-
mains in force. In land war enemy private property
generally is exempt from seizure or destruction except
in the case of imperative military necessity. M.
Fauchille's article is a "splitting of the difference"
between the rules of land and naval war ; enemy air-
craft, being of their nature especially capable of
employment as an arm of war, are liable to seizure, but
not to confiscation, and they must be restored to the
owners after peace.]
ARTICLE 10. — The validity or nullity of the acquisi-
tion of neutral nationality by enemy aircraft is, in accord-
ance with the dispositions of Chapter V of the Declara-
tion of London of 26th February, 1909, dependent on the
moment at which the transfer has been effected and the
conditions on which it has been carried out.
[The Declaration of London has not been ratified
by the British Government, but the rules laid down
therein regarding the transfer of belligerent merchant
ships to a neutral flag would probably be held to be
principles of International Law (un-coded) and to be
applicable to any such cases which actually arose in
128 AIRCRAFT IN WAR
M. Fauchille's Code]
maritime war. Broadly speaking, one may say that
transfer to a neutral flag is valid unless there is evi-
dence that its object was to evade the consequences to
which enemy ships are exposed ; and the length of
time before the outbreak of war at which the transfer
was effected, the consideration whether the bill of sale
is or is not on board the vessel, and the conditions of
the sale, whether unconditional, complete, and legally
executed, or not, are all of importance in deciding the
validity or otherwise of the transfer. If the transfer is
made during war-time, there is a presumption that its
object was to avoid the risks to which a belligerent's
merchant vessels are subject and the " onus " rests on
the neutral owner to rebut this presumption.]
ARTICLE 11. — The fact whether an airship or aero-
plane is enemy or neutral is shown by the distinctive sign
of its nationality, which it has the right to carry.
ARTICLE 12. — When private enemy aircraft or public
non-military enemy aircraft are seized by a belligerent,
the captain and crew, whether subjects of the enemy
State or of a neutral State, are not made prisoners of war,
but must be left at liberty under the conditions provided
for in Chapter III. of the Hague Convention of 18th
October, 1907, relative to Certain Restrictions upon the
Exercise of the Right ot Capture in Maritime War.
[The Hague Convention referred to provides that
when an enemy merchant-ship is captured, its captain,
officers, and crew, (i) if subjects of a neutral State, are
left at liberty, but the captain and officers (the crew
are excused) must undertake in writing not to serve on
an enemy ship while the war lasts ; (2) if subjects of
the enemy State, all must promise in writing not to
engage, while hostilities last, in any service connected
with the operations of the war.]
ARTICLE 13. — The destruction of private enemy
aircraft or of public enemy aircraft is only permissible
APPENDIX II 129
[M. Fauchille's Code
under the exceptional circumstances of the aircraft acting
as, in fact, military aircraft, or resisting the legitimate
exercise of the right of capture ; and the destruction
cannot be carried out until after a special summons has
been made.
ARTICLE 14. — Belligerents possess the right to capture
enemy aircraft, private or public, descending on their
territory whether by accident or forced descent.
[See the comment under Article 2j,postJ\
ARTICLE 15. — The private aircraft of a belligerent
which happen to be within the enemy's territory at the
outbreak of hostilities, and aircraft which quitted their
last port of departure before the commencement of
hostilities and arrived within hostile territory without
knowing of the existence of hostilities, can only be seized
under the conditions named in Article 9 if no " days of
grace " have been granted for their departure, or if, such
"days of grace" having been granted, advantage has not
been taken thereof. " Days of grace" cannot be granted
to private enemy aircraft, the construction of which shows
that they are intended to be transformed into war aircraft.
Private enemy aircraft which quitted their last port of
departure before the commencement of hostilities and
are encountered, in space, ignorant of the existence of
hostilities, may be seized like all other private enemy
aircraft.
Public non-military aircraft may receive the benefit of
the "days of grace" in the same circumstances as private
aircraft.
[The Hague Convention relative to the Status of
Enemy Merchant-ships at the Outbreak of Hostilities,
records that it is desirable (it imposes no obligation in
the matter) that a belligerent should allow the free
departure of enemy merchant-ships in his ports at the
outbreak of hostilities, either immediately or after a
sufficient period " of grace " ; ;in<l, as regards merchant-
EC
130 AIRCRAFT IN WAR
M. Fauchille's Code]
ships met at sea in ignorance of a state of war, the
Convention declares that these cannot be confiscated,
but may be detained by the belligerent encountering
them, subject to restoration at the end of the war ; or
they may even be requisitioned or destroyed by him,
provided the owners are indemnified. It is expressly
stated that the Convention does not affect merchant-
ships dont la construction indique qtiils sont destines
a etre transfor7?ze's en bailments de guerre. M.
Fauchille's article is the application of these rules to
air war, his provision as to ships encountered on the
high seas in ignorance of hostilities being simpler in
form than that in the Convention because of his
general underlying principle that private enemy air-
craft cannot, like merchant-ships in war, be confiscated
outright but only seized subject to subsequent restora-
tion.]
ARTICLE 16. — Aircraft charged with scientific or
philanthropic missions are exempt from seizure, under
the conditions named in Chapters I. and II. of the Hague
Convention of 18th October, 1907, relative to certain
Restrictions on the Exercise of the Right of Capture in
Maritime War.
[The Convention referred to exempts from capture
at sea the postal correspondence of neutrals or belliger-
ents, official or private, found on an enemy or neutral
ship ; but correspondence to or from a blockaded port,
found on a ship violating the blockade, is not exempt.
It also exempts vessels employed in coast fisheries,
small boats engaged in local trade and vessels charged
with religious, scientific and philanthropic missions.
M. Fauchille's original draft contained an analogous
provision regarding postal correspondence found in
aircraft, but he deleted this in view of M. Renault's
objection that the carrying of mails by aircraft would
be, not a regular service like that of mail-ships, but,
APPENDIX II 131
[M. Fauchille's Code
very often, a special service of a distinctly hostile
character.]
ARTICLE 17. — As regards the treatment of sick and
wounded, the provisions of the Hague Convention of
18th October, 1907, for Adaptation of the Principles of the
Geneva Convention to Maritime War, are applicable also
to aerial war, so far as possible.
The wounded and sick soldiers of a belligerent deposited
by aircraft upon a neutral State's territory with the con-
sent of the local authorities, must, in default of an arrange-
ment to the contrary between the neutral and the
belligerents, be guarded by the neutral State so as to
prevent their taking part again in the operations of the
war. The expenses of maintaining them in hospital and
of interning them will be borne by the State to which the
wounded and sick belong.
[It is impossible to give any satisfactory prdcis of
the rules of the Conventions referred to in the first
sentence ; reference should be made to the terms of
the Conventions.]
ARTICLE 18. — An army which invades or occupies a
hostile territory may seize aircraft of enemy nationality,
even if belonging to private persons ; but, in this latter
case, the aircraft must be restored and indemnities for
them regulated at the peace, in conformity with Article
53 of the Hague Rhglement of 18th October, 1907, on the
Laws and Customs of War on Land.
[The article referred to contains a similar provision
regarding "all appliances, whether on land, at sea, or
in the air, adapted for the transmission of news or for
the transport of persons or goods, apart from cases
governed by maritime law, depots of arms, and, gener-
ally, all kinds of war material."]
k 2
132 AIRCRAFT IN WAR
M. Fauchille's Code]
Chapter III
THE RELATIONS OF NEUTRALS AND BELLIGERENTS
ARTICLE 19. — The military aircraft of the belligerents
which enter neutral territory must not remain there more
than twenty-four hours, unless prevented by damages or
the state of the atmosphere.
If the aircraft of the two belligerent parties happen to
be simultaneously at the same place in this territory, at
least twenty-four hours must be allowed to elapse between
the departure of the aircraft of the one belligerent and the
aircraft of the other. The order of their departure is
determined by the order of their arrival, unless, in the
case of the aircraft arriving first, there is an admissible
reason for prolonging the stay.
[There is a similar provision in the Hague Conven-
tion relating to Neutral rights and Duties in Maritime
War.]
Belligerent aircraft must not do anything within neutral
territory which might augment their military power, and
their presence must not in any way prejudice the interests
of the neutral State ; the only acts which they may per-
form are those which humanity cannot forbid and which
are indispensable for enabling them to reach the nearest
point in their own country or in a country allied to them
during the war.
[There is a similar provision in the Convention
relating to Neutral Rights and Duties in Maritime
War, which provides that belligerent war-ships may,
in neutral ports, only carry out such repairs as are
absolutely necessary to make them seaworthy and it is
for the local authorities of the neutral power to decide
what repairs are necessary. They must not use neutral
waters to replenish or increase their war material or
armament or to complete their crews ; and they
APPENDIX II 133
[M. Fauchille's Code
may only revictual therein to bring up their supplies to
the peace standard. They can only take in enough
coal to allow them to reach their own country, but this
rule is modified by an important proviso that they may
fill up their fuel bunkers in neutral countries which
have adopted this method of determining the amount
of fuel to be supplied ; and they cannot, having coaled
in a neutral port, replenish their coal supply in a port
of the same neutral Power within three months. Great
Britain has not accepted the terms of the Convention
which allow a belligerent warship to bring up its
supplies of provisions to the peace standard and to fill
up its bunkers with coal, in a neutral port ; the British
rule having always been and still being that the
quantity of provisions or fuel taken on board in neutral
waters should not exceed that which is necessary to
enable the belligerent ship to reach the nearest port in
its own country.]
The principles of the Hague Convention of 18th
October, 1907, relating to Neutral Rights and Duties in
Maritime War, are generally applicable to aerial war.
[In addition to the provisions referred to above, the
Hague Convention forbids belligerents to use neutral
waters as a base of operations against their adversaries,
and, in particular, to erect wireless telegraphy stations,
or any signalling apparatus, therein. Neutral Powers
must not themselves supply a belligerent with war
material of any kind, but they need not prevent the
export or transit, on behalf of a belligerent, of war
material or anything of use to his fleet. They must
prevent the fitting out or arming of vessels to serve
against a belligerent Power. Their neutrality is not
affected by the mere passage through their territorial
waters of war-ships or prizes belonging to belligerents,
and they may allow a belligerent war-ship to employ
their licensed pilots. A prize can only be broughl
i 3 4 AIRCRAFT IN WAR
M. Fauchille's Code]
into a neutral port on account of unseaworthiness,
stress of weather, or want of fuel or provisions, and
must leave as soon as possible, otherwise the neutral
Power must release the prize, with its officers and crew,
and intern the prize crew. A neutral State may,
however, allow prizes to enter its ports, whether under
convoy or not, when they are brought there to be
sequestrated pending the decision of a Prize Court,
and in such a case the prize crew is left at liberty.
The rule laid down in the last sentence has not been
accepted by Great Britain, which holds that neutral
prizes must either be taken into the captor's ports or
released. Japan, also, has declined to accept the rule.
The Convention further provides that if a belligerent
ship refuses to leave a neutral port when ordered, the
neutral Power may take measures to render the ship
incapable of putting to sea so long as the war lasts,
and may detain the officers and crew during the same
time.]
ARTICLE 20. — The aerial navigation of neutral
countries is prohibited in all parts of the atmosphere
dominating the territory of the belligerent States, as well
as within a radius of 11,000 metres from their frontier.
Except in the case of force majeure, aircraft disobeying
this prohibition will be confiscated if espionage is not
proved against them [in which case the severer punish-
ment which the spy incurs would be inflicted.]
[The n,ooo metre limit is taken as representing the
farthest range at which fortifications could be distin-
guished by powerful glasses.]
ARTICLE 21. — In case of a blockade with an effective
area of more than 11,000 metres, neutral aircraft may not
approach any point in this area even if more than 11,000
metres from the enemy's frontier.
Neutral aircraft in a blockaded port may not leave it.
The rules formulated by the Declaration of London of
APPENDIX II 135
[M. Fauchille's Code
26th February, 1909, as to blockade, are applicable in aerial
as in maritime war.
[The rules referred to are, broadly, that a blockade,
to be binding, must be effective — this was already
provided for in the Declaration of Paris of 1856 — but
it remains effective even if the blockading force is
temporarily withdrawn in consequence of stress of
weather. A blockade must be impartially applied to
all flags. In circumstances of distress a neutral vessel
may enter and leave a blockaded place on condition
that she has neither discharged nor shipped any cargo
there. A blockade must be " declared" by the block-
ading State, or its naval authorities, and "notified"
(1) to neutral Powers, (2) to the local authorities of
the blockaded port. Neutral vessels' liability for
breach of blockade is contingent on their knowledge,
actual or presumptive, of the blockade ; and such
knowledge is presumed where the vessel has left a
neutral port after the notification of the blockade to
the Power to which such port belongs. If the vessel
approaching a blockaded port has no knowledge, actual
or presumptive, of the blockade, an officer of the
blockading force must notify the vessel and enter the
notification in the vessel's log-book. Neutral vessels
may only be captured for breach of blockade within
the area of operations of the blockading warships.
The blockading forces must not bar access to neutral
ports or coasts ; and whatever may be the ulterior
destination of a vessel or her cargo, she cannot be
captured for breach of blockade, if, at the moment, she
is on her way to a non-blockaded port. A vessel
which has broken blockade outwards, or attempted to
break it inwards, is liable to capture only for so long as
she is pursued by a ship of the blockading force.
Vessels found guilty of blockade-breaking are con-
demned, and so is their cargo unless it is proved that
at the time of the shipment the shippers neither knew
136 AIRCRAFT IN WAR
M. Fauchille's Code]
nor could have known of the intention to break the
blockade.]
ARTICLE 22. — Articles constituting contraband of war
may be confiscated on board neutral aircraft as well as on
board enemy aircraft.
ARTICLE 23. — As regards the determination of articles
constituting contraband of war and the conditions in
which they may be seized, the rules laid down in the
Declaration of London of 26th February, 1909, Chapter II.,
shall be followed.
[The rules referred to divide shipments into three
classes — (i) "absolute contraband," i.e., arms, ex-
plosives, military equipment, and other articles and
materials used exclusively for war; (2) "conditional
contraband," i.e., articles and materials ancipitis usus,
such as foodstuffs, forage, clothing, vehicles, etc., which
may be used either for warlike or peaceful purposes ;
(3) articles and materials which are clearly, in their exist-
ing state, not utilisable for war ; such as raw cotton or
wool, textile raw materials generally, hides, manures,
ores, chinaware glass, paper, agricultural and other
machinery, etc., (1) may be seized if shown to be
ultimately destined to territory belonging to or occupied
by the enemy ; (2), only if shown to be destined for
his armed forces or one of his departments of State ;
(3) can never be seized. Articles of an exclusively
military nature may be added to the list of articles
which are "absolute contraband," and those ancipitis
usus to the list of " conditional contraband," provided,
in both cases, that all the Powers are notified.]
ARTICLE 24. — Among the articles of "conditional
contraband " which may be declared confiscable if
destined for the use of the armed forces or of a Govern-
ment department of the enemy, the following may be
classed, viz., aircraft, their distinctive component parts
APPENDIX II 137
[M. Fauchille's Code
and accessories, articles and materials of the special char-
acter of aircraft stores.
[The articles and materials referred to are included
as "conditional contraband" in Article 24 of the
Declaration of London.]
ARTICLE 25. — The provisions of Chapter III. of the
Declaration of London of 26th February, 1909, relative to
unneutral service at sea, shall be applicable to neutral
aircraft.
There is a presumption of unneutral service, justifying
capture, against neutral aircraft circulating above belliger-
ent States.
[Chapter III. of the Declaration of London provides,
generally, that a neutral vessel shall be confiscated if
she is on a voyage specially undertaken to carry
individuals in the armed services of the enemy, or to
transmit intelligence in the enemy's interest, or if, to
the knowledge of the owner, master or charterer, she
is transporting a military detachment of the enemy, or
one or more persons who, in the course of the voyage,
directly assist the enemy's operations. She is also
liable to confiscation when acting, in effect, as an enemy
public vessel, as by ( 1 ) taking a direct part in hostilities,
(2) being under the orders or control of a Government
agent on board, (3) being in the exclusive employment
of the enemy Government, (4) being devoted exclu-
sively, at the time, to the transport of enemy troops or
the transmission of intelligence in the enemy's interest.]
ARTICLE 26. — Neutral aircraft may be destroyed
under the same conditions as belligerent aircraft.
ARTICLE 27. — Neutral aircraft descending in belliger-
ent territory, owing to accident or "forced descent,'' may
be seized and confiscated in the cases and subject to the
conditions specified in the preceding articles.
138 AIRCRAFT IN WAR
M. Fauchille's Code]
[The object of this article, as of Article 14, the
corresponding provision as to private enemy aircraft,
is to make it clear that aircraft "on the wins'" and
aircraft which have come to ground are subject to the
same rules as regards seizure or confiscation. " It
would be illogical," says M. Fauchille, " when an
aircraft has reached the ground owing to some
mischance, to remove it from the domain of aerial
war and to subject it to that of land war."]
ARTICLE 28.— The subjects of a neutral State shall be
treated like those of the belligerent States as regards air-
craft belonging to them in the territories of the
belligerents.
["What I have in view in this article," says
M. Fauchille, "is the case of neutral subjects who are
proprietors of aircraft in a belligerent's territory. The
belligerent must have power to requisition aircraft
belonging to neutral nationals as well as aircraft
belonging to his own subjects, and when a territory is
occupied or invaded by the hostile army, the latter
must have the right to take possession of the machines
of neutrals as well as those of the enemy ; a premium
should not be put on neutrality."]
Chapter IV
AERIAL PRIZES
ARTICLE 29. — The adjudication of aerial prizes is sub-
ject to the same rules as the adjudication of maritime
prizes.
If the seizure of an aircraft or its cargo has not been
upheld by the prize courts, or, if, without the matter
being brought before the courts, the seizure has not been
maintained, the parties interested have a claim to damages,
unless there has been sufficient justification for the seizure
of aircraft and cargo.
APPENDIX II 139
[M. Fauchille's Cope
In the case of destruction of an aircraft, unless the
captor can show that he acted in the circumstances
referred to in Article 13, he is bound to indemnify the
persons interested, and it is not necessary to inquire
whether the seizure was valid or not.
[In maritime warfare, the adjudication of prizes is
exercised in the first instance by the Prize Courts of
the belligerent captor, from which, however, there is
an appeal to the International Prize Court established
bv the Hague Convention of 1907, but only where a
neutral State or individual is concerned in some way,
or where, if the seizure affects a national of the enemy
State, the seizure is alleged to be a violation of an
agreement between the belligerent States or of an
enactment issued by the captor.
The Declaration of London (which, as already
stated, has not been ratified by Great Britain) provided
for the destruction of neutral prizes being permitted if
the vessels would be liable to condemnation, on the
facts of the case, and if it would endanger the safety of
the capturing war-vessels to take the prizes into a port
for adjudication. This provision is contrary to the
British practice, under which the destruction of neutral
prizes is considered unjustifiable under any circum-
stances ; if the prize cannot be brought into port and
condemned, she should be released. But enemy prizes
may be destroyed, according to Great Britain's view of
International Law, if their destruction is necessitated
by exigencies of war.]
{Annuaire de F Institut de Di r oit international, 191 1,
Vol. 24 ; Revue de la locomotion adrienne, July —
August 191 1.)
APPENDIX III
Code proposed by M. Edouard d'Hooghe, President
of the International Juridicial Committee of
Aviation
M. d'Hooghe's proposed code is practically identical
with M. Fauchille's, from which, indeed, nearly all of
his articles are simply transcribed. The only important
differences are due to M. d'Hooghe's different con-
ception of the status of the atmosphere. Unlike M.
Fauchille, he regards the atmosphere, not as free, but
as a res communis^ " which is in all its parts subject to
the common sovereignty of all the ' persons ' (States) of
International Law." He would not, therefore, accept
Articles 7 and 8 of M. Fauchille's code for Peace,
because, in his view, the separate States cannot
legislate for the atmosphere overlying their territory,
the community of Powers, in agreement, being alone
entitled to make laws for their common domain. As
regards the War Code, M. d'Hooghe replaces Articles
1, 3, 20, and 22 of M. Fauchille's code by the articles
given below, and he inserts an article after M.
Fauchille's No. 25 ; otherwise the two codes are
the same.
140
APPENDIX III 141
[M. d'Hooghe's Code
ARTICLE 1. — Belligerent States must abstain from
acts of hostility above the territory and territorial waters
of neutral States. Acts of hostility include observation
of enemy territory from the atmosphere of a neutral
State.
The circulation of belligerent aircraft, military or other-
wise, cannot be forbidden [Sc. by neutral States].
ARTICLE 3. — The conversion of private into military
aircraft may be carried out in any part of the atmosphere.
It is final, and the inverse conversion is not allowed
during the war.
[M. Fauchille's rule forbidding conversion over neu-
tral territory is deliberately omitted by M. d'Hooghe,
in accordance with his first principle.]
ARTICLE 20. -The aerial navigation of neutral
countries remains free. Neutral aircraft circulating over
belligerent territory can only be confiscated in the case
of espionage.
ARTICLE 22.— Articles constituting contraband of
war may be confiscated on board neutral aircraft as well
as on board enemy aircraft. The postal correspondence
of belligerents on board neutral aircraft and that of
neutrals on board enemy aircraft are equally inviolable.
Private enemy correspondence is inviolable on board
enemy aircraft.
[See the comment following Article 16 of M.
Fauchille's draft.]
Article following on ARTICLE 25.-Belligerents may,
above their own or the enemy's territory, oblige private
neutral aircraft to land for the purpose of "visit." Neutral
aircraft under convoy of their flag are exempt from
"visit."
[M. Fauchille's original draft contained an article
which read: "Belligerents have the right to ' visit '
142 AIRCRAFT IN WAR
M. d'Hooghe's Code]
aircraft under the same conditions as ships. Neutral
aircraft under convoy of their flag are exempt from
' visit.' This article was omitted by M. Fauchille
from his final draft in view of the objections raised by
the majority of his colleagues, who pointed out that
there were practical difficulties in the way of " visit "
in the case of aircraft. M. d'Hooghe's article repre-
sents an attempt to meet these difficulties, while he
retains M. Fauchille's second sentence.]
(E.d'Hooghe, Droit adrien, Paris, Dupont.)
APPENDIX IV
Code proposed by Professor L. Von Bar
ARTICLE 1. — The use of airships, balloons or aero-
planes as a means of destruction is prohibited.
ARTICLE 2. — As an exception to the above provi-
sions : —
(a) Enemy military airships, balloons, or aeroplanes
may always defend themselves if fired upon by
cannons from the land or from ships ;
(b) Aerial engagements are allowed : —
(1) if there is a naval engagement and the airships,
balloons, or aeroplanes are not distant more than
twenty kilometres from the scene of the engage-
ment ;
(2) in the territorial waters of the belligerents,
within a blockaded zone ;
(3) in the aerial space enveloping the belligerents'
territories.
ARTICLE 3.— Private enemy airships, etc., may not
be captured in the air, unless they enter voluntarily the
atmosphere overlying the enemy's territory or a zone
of blockade, or unless it is a case of carriage of contraband
under Article 4.
ARTICLE 4. — The seizure and confiscation of neutral
airships or their cargoes as contraband are forbidden,
except when they are immediately engaged in affording
assistance to a blockaded coast-line or port, or to the
enemy army or fleet in the theatre of war.
'43
i 4 4 AIRCRAFT IN WAR
Prof, von Bar's Code]
ARTICLE 5.- — In the exceptional cases referred to
in Article 4, the rules as to maritime prizes will be
applied.
ARTICLE 6. — Private enemy airships are forbidden to
enter the atmosphere of the enemy State.
ARTICLE 7. — A belligerent may forbid neutral ships
to enter the atmosphere overlying his territory.
ARTICLE 8. — Neutral airships must not be fired upon
without previous warning, and must not be fired upon if
compelled by accident to land.
Annuaire de FInstitut de Di'oit international, 191 1,
Vol. 24, Paris (Pedone), pp. 132-133.
APPENDIX V
(i) Rules adopted at the Session of 191 i of the
Institute of International Law
ARTICLE 1. — Aircraft are distinguished as public or
as private aircraft.
ARTICLE 2.— Every aircraft must have a nationality
and one only. This nationality will be that of the
country in which the aircraft has been registered (im-
matricule).
Every aircraft must bear special marks by which it can
be identified. The State in which registration is applied
for will determine the persons in whose case and the
conditions under which registration will be allowed. The
State registering an aircraft belonging to an alien cannot,
however, claim to afford protection to such aircraft in the
territory of the owner's State, as against any laws of that
State forbidding its nationals to have their aircraft re-
gistered in foreign States.
ARTICLE 3.— International aerial circulation is free,
subject to the right of States to take certain steps, which
shall be fixed, to ensure their security and that of the
persons and property of their inhabitants.
ARTICLE 4.— Aerial war is allowed, but only on the
condition that it does not present for the persons or pro-
perty of the pacific population greater dangers than land
or sea war.
(Annuaire de tlnstitut de Droit international. Vol.
24. 191 1.)
M5 I.
146 AIRCRAFT IN WAR
(2) Extract from the Report of the Committee
upon Aviation of the International Law Asso-
ciation (Madrid, 1913).
" It appears to the Committee impossible to contend
that according to existing International Law the air
space is free; nor do they think that States would be
willing to accept or to act on that view of the law. But
they are of opinion that subject to such safeguards as
subjacent States may think it right to impose, aerial
navigation should be permitted as a matter of comity.
"There is no reason to anticipate that States will
interfere with the passage of foreign airships through
the air above their territories in an unreasonable
manner, any more than they have interfered with the
passage of foreign vehicles through their territories
or of foreign vessels through their territorial waters.
Indeed any action of this character must necessarily
be prevented by considerations of reciprocal interest.
" The Committee therefore submit the following
resolutions : —
" 1. It is the right of every State to enact such
prohibitions, restrictions, and regulations as it may
think proper in regard to the passage of aircraft
through the air space above its territories and terri-
torial waters.
" 2. Subject to this right of subjacent States, liberty
of passage of aircraft ought to be accorded freely to
the aircraft of every nation."
{Report of Madrid Conference of International
Law Association, 191 3, London, R. Flint and Co.,
pp. 532-533-)
APPENDIX VI
Code Proposed by M. Le Movne
ARTICLE 1. — Aerial war is permitted. It is subject,
as far as possible, to the rules governing maritime and
land warfare.
ARTICLE 2. — The theatre of aerial war is the atmo-
sphere enveloping : —
(a) the territory of the belligerents ;
(b) their territorial waters ;
(c) the open sea.
ARTICLE 3.— In war time, all the aircraft of bel-
ligerents are forbidden to enter the atmosphere and
territory of neutral States, and all neutral aircraft are
forbidden to circulate above the territory and territorial
waters of the belligerents.
ARTICLE 4. — Upon the opening of hostilities and
during their course, all private or public non-military
aircraft (les aeronefs publics civils) of the belligerents,
whatever their normal destination, may be seized if in
the theatre of war, whether there through accident or
forced descent.
All aircraft seized under the preceding paragraph, will
be restored at the peace, with payment of compensation
in the case of private, but not of public non-military
aircraft.
Any passengers in such aircraft will be left at liberty
without any conditions.
A captor may destroy aircraft opposing the legitimate
exercise of the right of seizure, but only after non-
compliance with a previous summons.
ARTICLE 5. Upon the opening of hostilities, the
belligerent States will take such measures as they consider
147 L 2
148 AIRCRAFT IN WAR
M. Le Moyne's Code]
necessary as regards neutral aircraft in their terri-
tories. 1
ARTICLE 6. — Aircraft can only be considered sus-
pected of espionage if, acting clandestinely or on false
pretences and thus dissimulating their operations, they
obtain or seek to obtain information above the territory
or territorial waters of a belligerent, or above territory
occupied by his troops, or, in the open sea, above one of
his squadrons or warships, and generally in the zone
of his operations, with the intention of communicating it
to the hostile party.
ARTICLE 7.— The neutral or enemy character of an
aircraft is determined by the distinctive mark of nationality
which it is entitled to bear.
ARTICLE 8. — The military aircraft of the belligerents
which enter the territory of a neutral State are seized.
They are restored at the conclusion of peace without
indemnity. The crew are interned until the end of the war.
ARTICLE 9. — Amongst the articles of " conditional
contraband " which may be declared seizable, if destined
for the use of the armed forces or of a Government
department of the enemy, are aircraft and their distinctive
component parts, together with accessories, articles, and
materials recognisable as intended for use in connection
with aircraft.
(Le Moyne, Le droit fiitur de la guerre ae'rienne,
Nancy, 1913.)
1 The intention of this Article is to provide that neutral aircraft which
happen to be in a belligerent's territory when war breaks out should be
left at liberty, but may be dealt with in such a way as the national
security of the belligerent demands (as, for instance, by being sent back
to their country by rail instead of by air). In a work on Aerial Law,
Lieutenant Grovalet had proposed that the belligerent should have the
right to seize such aircraft and use them for his operations. M. Le Moyne
refuses, properly, to admit such a belligerent right, which could only be
justified if, as in the case of railway material under the Hague Convention
on Neutrality in Land War, the neutral State were given the right to
seize and use belligerent aircraft to a corresponding extent : a right which
belligerents would certainly not recognise. One doubts, however, whether
M. Le Moyne's Article, as it stands, is sufficiently explicit as to his
intention in framing it.
APPENDIX VII
Bombardment
(i) Hague Convention respecting Bombardment
by Naval Forces in Time of War
ARTICLE 1. — The bombardment by naval forces of
undefended ports, towns, villages, dwellings, or buildings
is forbidden.
A place cannot be bombarded solely because automatic
submarine contact mines are anchored off the harbour.
ARTICLE 2. — Military works, military or naval
establishments, depots of arms or war materiel, workshops
or plant which could be utilised for the needs of the
hostile fleet or army, and the ships of war in the harbour
are not, however, included in this prohibition. The com-
mander of a naval force may destroy them with artillery,
after a summons followed by a reasonable time of waiting,
if all other means are impossible, and when the local
authorities have not themselves destroyed them within
the time fixed.
He incurs no responsibility for any unavoidable
damage which may be caused by a bombardment under
such circumstances.
If for military reasons immediate action is necessary,
and no delay can be allowed the enemy, it is understood
that the prohibition to bombard the undefended town
holds good, as in the case given in paragraph 1, and that
the commander shall take all due measures in order that
the town may suffer as little harm as possible.
149
150 AIRCRAFT IN WAR
[Naval Bombardments Convention
ARTICLE 3. — After due notice has been given, the
bombardment of undefended ports, towns, villages, dwel-
lings, or buildings may be commenced, if the local authori-
ties, after a formal summons has been made to them,
decline to comply with requisitions for provisions or
supplies necessary for the immediate use of the naval
force before the place in question.
These requisitions shall be in proportion to the resources
of the place. They shall only be demanded in the name
of the commander of the said naval force, and they shall,
as far as possible, be paid for in cash ; if not, they shall be
evidenced by receipts.
ARTICLE 4. — Undefended ports, towns, villages,
dwellings, or buildings may not be bombarded on account
of failure to pay money contributions.
ARTICLE 5. — In bombardments by naval forces all
the necessary measures must be taken by the commander
to spare as far as possible sacred edifices, buildings used
for artistic, scientific, or charitable purposes, historic
monuments, hospitals, and places where the sick or
wounded are collected, on the understanding that they
are not used at the same time for military purposes.
It is the duty of the inhabitants to indicate such monu-
ments, edifices, or places by visible signs, which shall
consist of large stiff rectangular panels divided diagonally
into two triangular portions, the upper portion black, the
lower portion white.
ARTICLE 6. — If the military situation permits, the
commander of the attacking naval force, before com-
mencing the bombardment, must do his utmost to warn
the authorities.
ARTICLE 7. — The giving over to pillage of a town or
place, even when taken by assault, is forbidden.
ARTICLE 8. — The provisions of the present Conven-
tion are only applicable between Contracting Powers,
and only if all the belligerents are parties to the Conven-
tion.
APPENDIX VII 151
Land Bombardments Convention]
(2) Articles of the Hague Reglement relative
to Bombardment in Land War
ARTICLE 25.— The attack or bombardment, by any
means whatever, of undefended towns, villages, dwellings,
or buildings is forbidden.
ARTICLE 26. — The officer in command of an attacking
force must do all in his power to warn the authorities
before commencing a bombardment, except in cases of
assault.
ARTICLE 27. — In sieges and bombardments all neces-
sary steps must be taken to spare, as far as possible,
buildings dedicated to public worship, art, science, or
charitable purposes, historic monuments, hospitals, and
places where the sick and wounded are collected, pro-
vided they are not being used at the time for military
purposes.
It is the duty of the besieged to indicate such buildings
or places by distinctive and visible signs, which shall be
notified to the enemy beforehand.
APPENDIX VIII
Belligerents and Neutral Wireless Installations
Extract from the Hague Convention respecting the
Rights and Duties of Neutral Pozvers and Persons in
War on Land, 1907
ARTICLE 3. — Belligerents are also forbidden: —
(a) To instal on the territory of a neutral Power
a wireless telegraphy station or any apparatus intended
to serve as a means of communication with belligerent
forces on land or sea ;
(b) To make use of any installation of this kind
established by them before the war on the territory
of the neutral Power with an exclusively military
object and not already opened for the service of public
messages.
ARTICLE 8. — A neutral Power is not bound to forbid
or restrict the employment on behalf of belligerents of
telegraph or telephone cables or of wireless telegraphy
apparatus whether belonging to it, or to companies or to
individuals.
ARTICLE 9. — Every restrictive or prohibitive measure
taken by a neutral Power with regard to the matters
referred to in Articles 7 and 8 must be applied impartially
to the belligerents. The neutral Power shall ensure that
the same obligation is respected by companies or in-
152
APPENDIX VIII 153
Conventions regarding Wireless]
dividuals owning telegraph or telephone cables or wireless
telegraphy apparatus.
Extract from the Hague Convention respecting the
Rights and Duties of Neutral Powers in Maritime
War, 1907
ARTICLE 5. — Belligerents are forbidden to use neutral
ports and waters as a base of naval operations against
their adversaries, and especially to instal there wireless
telegraphy stations or other apparatus intended to serve
as a means of communication with belligerent forces on
land or sea.
APPENDIX IX
British Aerial Navigation Acts, 191 i and 191 3,
and Extract from the British Army Act
I
An Act to provide for the protection of the
public against dangers arising from the naviga-
TION of Aircraft
(2nd June ; 191 1.)
Be it enacted by the King's most Excellent Majesty
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows : —
Power to prohibit navigation of aircraft over prescribed
areas
I # — ( T ) A Secretary of State may, for the purpose of
protecting the public from danger, from time to time
by order prohibit the navigation of aircraft over such
areas as may be prescribed in the order, 1 and, if any
person navigates an aircraft over any such area in con-
travention of any such order, he shall be guilty of an
offence under this Act, unless he proves that he was
1 The prohibited areas are given in Schedule I of " Statutory Rule and
Order No. 228 of 1913" (Home Office). They are defences, dockyards,
railway stations of strategic importance, etc
154
APPENDIX IX 155
Aerial Navigation Acts]
compelled to do so by reason of stress of weather or
other circumstances over which he had no control.
(2) Any such order may apply either generally to
all aircraft or to aircraft of such classes and descriptions
only as may be specified in the order, and may prohibit
the navigation of aircraft over any such prescribed area
either at all times or at such times or on such occa-
sions only as may be specified in the order, and either
absolutely or subject to such exceptions or conditions
as may be so specified.
Penalties for offences
II. — (1) If any person is guilty of an offence under
this Act, he shall be liable on conviction on indictment
or on summary conviction to imprisonment for a term
not exceeding six months, or to a fine not exceeding
two hundred pounds, or to both such imprisonment
and fine.
(2) Any person aggrieved by a summary conviction
under this Act may, in England or Ireland, appeal to
a court of quarter sessions, and in Scotland in like
manner as in the case of a conviction under the Motor
Car Act, 1903, as provided by section eighteen of that
Act.
Short title
III. — This Act may be cited as the Aerial Naviga-
tion Act 191 1.
II
An Act to amend the Aerial Navigation Act,
191 1
(14M February, 191 3.)
Be it enacted by the King's most Excellent Majesty
by and with the advice and consent of the Lords
156 AIRCRAFT IN WAR
[Aerial Navigation Acts
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows : —
Extension of power of Secretary of State to regulate
aircraft
I. — (1) The purposes for which a Secretary of State
may make orders prohibiting the navigation of aircraft
over prescribed areas under the Aerial Navigation
Act, 191 1, shall include the purposes of the defence or
safety of the realm, and, where an order is made for
those purposes, the area prescribed may include the
whole or any part of the coastline of the United
Kingdom and the territorial waters adjacent thereto.
(2) The power of the Secretary of State under the
said Act shall include power by order to prescribe the
areas within which aircraft coming from any place out-
side the United Kingdom are to land 1 and the other
conditions to be complied with by such aircraft, and, if
any person contravenes any of the provisions of any
such order, he shall be guilty of an offence under the
said Act, unless he proves that he was compelled to
do so by reason of stress of weather or other circum-
stances over which he had no control.
Power to compel compliance when aircraft disobeys
signals
II. — If an aircraft flies or attempts to fly over any
area prescribed under this Act for the purposes of the
defence or safety of the realm, or, in the case of an
aircraft coming from any place outside the United
Kingdom, fails to comply with any of the conditions as
to landing prescribed by an order under the last fore-
going section, it shall be lawful for any officer desig-
nated for the purpose by regulations made by the
1 See note (3) on page 59, supra.
APPENDIX IX
J 57
Army Act]
Secretary of State, to cause such signal as may be
prescribed by those regulations to be given, 1 and if
after such signal has been given the aircraft fails to
respond to the signal by complying with such regula-
tions as may be made by the Secretary of State
prescribing the action to be taken on such a signal
being given, it shall be lawful for the officer to fire at
or into such aircraft and to use any and every other
means necessary to compel compliance, and every and
any such officer and every other person acting in his
aid and by his direction shall be and is hereby indem-
nified and discharged from any indictment, penalty,
action, or other proceeding for so doing.
Short title
III. — This Act may be cited as the Aerial Naviga-
tion Act, 1 91 3 ; and the Aerial Navigation Act, 191 1,
and this Act may be cited together as the Aerial
Navigation Acts, 191 1 and 1913.
Ill
Extract from the Army Act, as amended to 19 14
Impressment of Can'iages, etc. Supply of Carriages and
Vessels in case of emergency
115 (1) His Majesty by order, distinctly stating
that a case of emergency exists, and signified by a
Secretary of State, and also in Ireland the Lord
1 The prescribed signal is given in Statutory Rule and Order, No. 243
of 1913 (Home Office), as follows :
" By day : three discharges at intervals of not less than ten seconds of
a projectile showing smoke on bursting.
" By night : three discharges at intervals of not less than ten seconds
of a projectile showing red stars or red lights."
The signals must be given by a commissioned officer of the navy or
army, and the aircraft must land at the nearest prat tit able spot.
158 AIRCRAFT IN WAR
[Army Act
Lieutenant by a like order, signified by the Chief
Secretary or Under Secretary, may authorise any
general or field officer commanding His Majesty's
regular forces in any military district or place in the
United Kingdom to issue a requisition under this
section (hereinafter referred to as a requisition of
emergency).
(2) The officer so authorised may issue a requisition
of emergency under his hand reciting the said order, and
requiring justices of the peace to issue their warrants
for the provision, for the purpose mentioned in the
requisition, of such carriages and animals as may be
provided under the foregoing provisions, and also of
carriages of every description (including motor cars and
other locomotives, whether for the purpose of carriage
or haulage), and of horses of every description, whether
kept for saddle or draught, and also of vessels (whether
boats, barges, or other) used for the transport of any
commodities whatsoever upon any canal or navigable
river and also of aircraft of every description.
(3) A justice of the peace, on demand by an officer of
the portion of His Majesty's forces mentioned in a
requisition of emergency, or by an officer of the Army
Council authorised in this behalf, and on production of
the requisition, shall issue his warrant for the provision
of such carriages, animals, vessels, and aircraft as are
stated by the officer producing the requisition of
emergency to be required for the purpose mentioned
in the requisition ; the warrant shall be executed in the
like manner, and all the provisions of this Act as to the
provision for furnishing carriages and animals, in-
cluding those respecting fines on officers, non-
commissioned officers, justices, constables, or owners
of carriages or animals, shall apply in like manner as in
the case where a justice issues, in pursuance of the
foregoing provisions of this Act, a warrant for the
provision of carriages and animals, and shall apply to
APPENDIX IX 159
Army Act]
vessels and aircraft as if the expression carriages
included vessels and aircraft.
(3A) A requisition of emergency may authorise any
officer mentioned therein to require any carriages and
horses furnished in pursuance of this section to be
delivered at such place (not being more than one hun-
dred miles in the case of a motor car or other loco-
motive, and not being more than ten miles in the case
of any other carriage or horse, from the premises of
the owner) and at such time as may be specified by
any officer mentioned in the requisition, and in such
case it shall be the duty of a constable executing a
warrant issued by a justice of the peace under this
section upon the demand of an officer producing the
requisition of emergency to insert in his order such
time and place for delivery of any vehicle or horse to
which the order relates as may be specified by such
officer, and the obligation of owners to furnish carriages
and horses shall include an obligation to deliver the
carriages and horses at such place and time as may be
specified in such order, and the provisions of this Act
shall have effect as if references therein to the furnish-
ing of carriages and horses included, as respects any
such carriage or horse as aforesaid, delivery at such
time and place as aforesaid.
(4) The Army Council shall cause due payment to
be made for carriages, animals, vessels, and aircraft
furnished in pursuance of this section, and any difference
respecting the amount of payment for any carriage,
animal, vessel, or aircraft shall be determined by a
county court judge having jurisdiction in any place
in which such carriage, animal, vessel, or aircraft was
furnished or through which it travelled in pursuance of
the requisition.
(5) Canal, river, or lock tolls are hereby declared
not to be demandable for vessels while employed in
any service in pursuance of this section or returning
160 AIRCRAFT IN WAR
[Army Act
thereform. And any toll collector who demands or
receives toll in contravention of this exemption shall
on summary conviction, be liable to a fine not exceeding
five pounds nor less than ten shillings.
(6) A requisition of emergency, purported to be
issued in pursuance of this section and to be signed
by an officer therein stated to be authorised in accord-
ance with this section, shall be evidence, until the
contrary is proved, of its being duly issued and signed
in pursuance of this Act, and if delivered to an officer
of His Majesty's forces or of the Army Council
shall be a sufficient authority to such officer to demand
carriages, animals, vessels, and aircraft in pursuance
of this section, and when produced by such officer
shall be conclusive evidence to a justice and constable
of the authority of such officer to demand carriages,
animals, vessels, and aircraft in accordance with such
requisition ; and it shall be lawful to convey on such
carriages, animals, vessels, and aircraft, not only the
baggage, provisions, and military stores of the troops
mentioned in the requisition of emergency, but also
the officers, soldiers, servants, women, children, and
other persons of and belonging to the same.
(7) Whenever a proclamation ordering the Army
Reserve to be called out on permanent service or an
order for the embodiment of the militia is in force, the
order of His Majesty authorising an officer to issue
a requisition of emergency may authorise him to
extend such requisition to the provision of carriages,
animals, vessels, and aircraft for the purpose of being-
purchased, as well as of being hired, on behalf of the
Crown.
(8) Where a justice, on demand by an officer and
on production of a requisition of emergency, has issued
his warrant for the provision of any carriages, animals,
vessels or aircraft, and any person ordered in pursuance
of such warrant to furnish a carriage, animal, vessel, or
APPENDIX IX 161
Army Act]
aircraft refuses or neglects to furnish the same accord-
ing to the order, then, if a proclamation ordering the
Army Reserve to be called out on permanent service,
or an order for the embodiment of the militia is in
force, the said officer may seize (and if need be by
force) the said carriage, animal, vessel, or aircraft, and
may use the same in like manner as if it had been
furnished in pursuance of the order, but the said person
shall be entitled to payment for the same in like
manner as if he had duly furnished the same according
to the order.
(9) The Army Council may, by regulations under
the Territorial and Reserve Forces Act, 1907, assign
to county associations established under that Act the
duty of furnishing in accordance with the directions of
the Army Council, such carriages, animals, vessels, and
aircraft as may be required on mobilisation for the
regular or auxiliary forces, or any part thereof, and
where such regulations are made an officer of a county
association shall have the same powers as are by this
section conferred on an officer of the Army Council.
Offences in relation to the Imftressme?tt of Carriages.
Offences by Constables
t 16. — Any constable who —
(1) Neglects or refuses to execute any warrant of a
justice, requiring him to provide carriages, animals,
vessels, or aircraft ; or
(2) Receives, demands, or agrees for any money or
reward whatsoever to excuse or relieve any person
from being entered in a list as liable to furnish, or
from being required to furnish, or from furnishing any
carriage, animal, vessel, ov aircraft ; or
(3) Orders any carriage, animal, vessel, or aircraft
to be furnished for any person or purpose or on any
M
1 62 AIRCRAFT IN WAR
[Army Act
occasion for and on which it is not required by this
Act to be furnished,
shall on summary conviction, be liable to a fine of
not less than twenty shillings nor more than twenty
pounds.
Offences by Persons ordered to fttrnisk Carriages,
Animals, or Vessels
117. — A person ordered by any constable in pursu-
ance of this Act to furnish a carriage, animal, vessel,
or aircraft who —
(1) Refuses or neglects to furnish the same accord-
ing to the orders of such constable and this Act ; or
(2) Gives or agrees to give to a constable or to
any officer or non-commissioned officer any money or
reward whatsoever to be excused from beingf entered
in a list as liable to furnish, or from being required to
furnish, or from furnishing, or in lieu of furnishing,
any carriage, animal, vessel, or aircraft in pursuance of
this Act ; or
(3) Does any act or thing by which the execution of
any warrant or order for providing or furnishing carri-
ages, animals, vessels, or aircraft is hindered,
shall, on summary conviction, be liable to pay a fine of
not less than forty shillings nor more than ten pounds.
Offences by Officers or Soldiers
118. — (1) Any officer or soldier who commits any
offence in relation to the impressment of carriages for
which he is liable to be punished under Part One of
this Act, other than an offence in respect of which any
other remedy is given by this part of this Act to the
person aggrieved, shall, on summary conviction, be
APPENDIX IX 163
Army Act]
liable to a fine not exceeding fifty pounds nor less than
forty shillings.
(2) A certificate of a conviction for an offence under
this section shall be transmitted by the court making
such conviction to the Army Council.
Supplemental Provisio?is as to Billeting and Impress-
ment of Carriages
Application to Court of Summary Jurisdiction
respecting s?tms due to Keepers of Victualling Houses or
Owners of Carriages, etc.
1 19. — (1) The following persons ; that is to say, —
(a) If any officer or soldier fails to comply with
the provisions of this part of this Act with respect
to the payment of a sum due to a keeper of a
victualling house or in respect of carriages or
animals, or to the making up of an account of
the same due, the person to whom the sum is
due ; or
(d) If a keeper of a victualling house suffers anv
ill-treatment by violence, extortion, or making
disturbance in billets from any officer or soldier
billeted upon him, or if the owner or driver of any
carriage, animal, vessel, or aircraft furnished in
pursuance of this part of this Act suffers any ill-
treatment from any officer or soldier, the person
suffering such ill-treatment, but, when there is an
officer commanding such officer or soldier present
at the place, only after first making due complaint,
if practicable to such commanding officer,
may apply to a court of summary jurisdiction, and such
court, if satisfied on oath of such failure or such ill-
treatment, and of the amount fairly due to the
M 1
164 AIRCRAFT IN WAR
[Army Act
applicant, including the costs of his application to the
court of summary jurisdiction, shall certify the same
to the Army Council, who shall forthwith cause the
amount due to be paid.
(2) Provided that the Army Council, if it appear to
them that the amount named in such certificate is not
justly due, oris in excess of the amount justly due, may
direct a complaint to be made to a court of summary
jurisdiction for the county, borough, or place for which
the court giving the certificate acted, and the court
after hearing the case may by order confirm the said
certificate, or vary it in such manner as to the court
seems just.
Provisions as to Constables, Police Authorities, and
Justices
120. — (1) A constable shall observe the directions
given to him for the due execution of this part of this
Act by the police authority ; and the police authority,
or any member thereof, and every justice of the peace
may, if it seem necessary, and in the absence of a
constable shall, themselves or himself, exercise the
powers and perform the duties by this part of this Act
vested in or imposed on a constable, and in such case
every such person is in this part of this Act included in
the expression " constable."
(2) A person having or executing any military office
or commission in any part of the United Kingdom
shall not, directly or indirectly, be concerned, as a
justice or constable, in the billeting of or appointing
quarters for any officer or soldier or horse of the corps,
or part of a corps, under his immediate command, and
all warrants, acts, and things made, done, and
appointed by such person for or concerning the same
shall be void.
APPENDIX IX 165
[Army Act
Fraudulent Claim for Carriages, Animals, etc.
121. — If any person —
(1) Forges or counterfeits any route or requisition of
emergency, or knowingly produces to a justice or
constable any route or requisition of emergency so
forced or counterfeited ; or
(2) Personates or represents himself to be an officer
or soldier authorised to demand any billet, or any
carriage, animal, vessel, or aircraft, or to be entitled to
be billeted, or to have his horse billeted ; or
(3) Produces to a justice or constable a route of
requisition which he is not authorised to produce, or
a document falsely purporting to be a route or
requisition,
he shall be liable, on summary conviction, to imprison-
ment for a period not exceeding three months, with or
without hard labour, or to a fine not less than twenty
shillings and not more than five pounds.
APPENDIX X
" Precis " of the Franco-German Agreement as to
the Admission of German Aircraft to France
and of French Aircraft to Germany (19 13).
[For the sake of clearness, the case of German
aircraft entering France is alone mentioned in the
following prdcis, but the corresponding case of French
aircraft entering Germany is subject to identical rules.]
I. 1
German military aircraft, or other German aircraft
carrying officers or soldiers in uniform, may only
circulate over French territory or land there upon the
invitation of the French Government.
In cases of necessity, however, a German aircraft
may be allowed entry, but to prevent cases of this
kind arising, the German Government will give the
necessary instructions to its airmen.
In such cases, the aircraft must make the signal of
distress and land as soon as possible. The pilot must
then notify the nearest French authority, stating his
name and domicile, and that authority will take steps
for the protection of the aircraft and its contents. The
local authority will notify the nearest military authority.
The military authority will inquire into the alleged
case of necessity, to determine whether the entry was
justified or not.
166
APPENDIX 167
[Franco- German Agreement
If the justification is established by this inquiry, the
military authority will obtain from the German officer
in charge of the aircraft his word of honour that
neither he nor any member of the crew has committed
any act affecting the national security of the French
State, such as the taking of notes or of photographs
or the dispatch of wireless messages. The aircraft
will then be authorised to return to Germany, by such
route as the military authority shall direct.
Where an immediate return to Germany is not prac-
ticable, the aircraft, while in France, shall not be
subject to any measures save such as are necessary
for its safety, and that of its crew and contents, and
for the public health.
If it is not established at the inquiry referred to
above that the entry was justified by necessity, the
judicial authorities will be notified and the French
Government will be advised.
The French and German Governments will keep
one another advised of the nature of the distinguishing
marks of their respective military aircraft.
II.
As regards the entry into France of German air-
craft not belonging to the military service and not
carrying officers in uniform, this is permitted, except
in the prohibited zones [fortresses, defences], subject
to the following conditions : —
(1) The aircraft must have a licence to navigate
from the proper German authority, and must carry the
distinctive marks necessary for its identification.
(2) The pilot must have a proficiency certificate
from the proper authority.
(3) He must also have papers certifying his nation
1 68 AFT IN WAR
Franco-German Agreement]
ality and his situation militaire ; so must any members
of the crew.
(4) He must have a passport for the journey from
the diplomatic or consular representatives of France in
Germany.
Aircraft thus admitted must submit to all the re-
quirements of International Law, of the Customs regula-
tions, and of the Aeronautical regulations in force in
France.
Aircraft not fulfilling the above conditions may be
admitted in cases of necessity, but such aircraft must
land as soon as possible and notify the nearest civil
authority.
III.
Whenever a German aircraft lands in France, the
local authorities will take all steps necessary to ensure
the protection of the aircraft and its crew.
The two Governments will advise one another of
their respective regulations as to aerial circulation.
The present agreement is based on reciprocity of
treatment. It will cease to be in force when deter-
mined by either Government.
(International Law Association, Report of Madrid
Conference, 191 3, pages 542-545).
INDEX
Accessories and parts of aircraft,
supply of, by a neutral power or
neutral national, to a belligerent,
92, 119, 133
Adrianople, employment of aircraft at
siege of, 9 (footnote)
Aeroplanes, weight they can carry, 9
(footnote) ; record height of, 41 ;
record journeys, 112 (footnote)
Aerial Navigation Acts, Appendix IX,
154-157 ; statutory rules and orders
under, 59
Aircraft in war, legitimacy of use, 3-4,
42, 43> *43>, . J 45, M7 5 impractic-
ability of prohibiting, 4-6 ; how they
will be employed, 8-10; nature of
questions which arise, 24-25
Air space, freedom or sovereignty of,
56-64 ; see also Freedom and
Sovereignty
Air, territorial zone proposed for, 62
Alabama Rule, aircraft and the, 89-92,
"9
"Amphibian" aeroplanes and bellig-
erent entry of neutral ports, 67, 70
Armistices and aircraft, 105
Army Act, British, references to,
157-165
Arrangement of books, 25-26
Atmosphere, status of, see Freedom
and Sovereignty
Battleships, aircraft attached to, 69-71,
99. "9
Beatty, Capt. W. D., R. F. Corps,
referred to, 55 (footnote)
Bellenger, M., work on aerial war,
41 ; view as to freedom of atmosphere,
60-61 ; as to necessity for uniform,
73-74 ; proposal regarding treatment
of captured civilia n, 93, 94
Belligerent atmo phere, neutral entry
of, 53, 116, 138, 141, 14 v 111. 147
Belligerent entry ol neutral atn
65-71, "8, "9> 122-123, «3 2 , '34,
I: 144, 147-148
Belligerent territory, neutral aircraft
found in, 80-82, 120, 137
Bernard, Col., quoted, 8 (footnote)
Blockade breaking, 45, 126, 134-136
Bombardment by aircraft, II-24,
28-34 ; Hague Declaration and
Reglement, 28-29, I 49 _I 5 I '■> proposed
article, 118; Prof. Von Bar's, 143;
by naval forces, Hague Convention
upon, 32-34, 149-150; M.
Fauchille's article, 125
Brenet, M., on participation of un-
qualified persons in hostilities, m
(note)
Burke, Major C. J., on greater utility
of aerial scouts to French than to
German strategists, 8 (footnote)
Catellani, M., work on aerial law,
Chalais Meudon, debt of flight to, 7
Character, neutral or enemy, 47, 1 16,
122, 128, 148.
Civilian aircraft, treatment of, see
Private enemy aircraft, Neutral
aircraft, Prisoners of war, Neutral
airmen, Destruction, etc.
Civilian airmen, embodiment as
military airmen, 50-52, 73-74, 95 ;
treatment of on capture, see Crews
and Prisoners of war
Clementel, M-, quoted, 33
Code for aircraft, necessity for, 99-100;
scope of, 101-102
Confiscation of public non-military air-
craft, 126 ; of private enemy aircraft,
38-39, 45-46, 52-54, 75-77, 97, 114,
116, 117 ; of neutral aircraft, 45-46,
52 54, 75-77, 94, 114, u6. 117,
121, 137, 141
Contraband of war, carriage l>y air-
craft, 44-45, 49-5°. 8 3> I2 o, 136-137,
141, 143 ; carriage by sea vessels, 45,
83, 104, [48
Convention on naval liombardmi
14, I6-2I, 32-33, I 18, 149 ISO; M.I
land bombardment, ti— 23,28 34,151
< onvi 1 ion <■! private into military air-
■ raft, 50-52. 1 14, 1 J4, 1 4 1
' r, M., quoted, 58
Councils "I war, see Wai
169
170
D£X
Crews of civn an enemy and neutral
aircraft, treatn/ nt ° f > 50-52, 93~97,
114, 115, 117, n T . Iz8 > J 47
Defended cities and b^iKiTaCiient,
IO-II
D'Hooghe, M., proposed code,
references to, 35, 37, 41, 53, 107 ;
quoted, 58 ; proposal to treat air as
res communis, 63-64 ; text of code,
140-142
Den Beer Poortugael, Gen., quoted, 13,
De Stael-Holstein, Baron, work on
aerial law, 41 ; quoted, 58-59
Destruction of civilian aircraft, 45-55,
75-8o, 115, 116-117, 128-129, 137,
144, 147
Destruction of enemy property in land
war, 106-107
De Thomasson, Commandant, quoted,
34 (footnote)
De Valles, Prof. Arnaldo, quoted, 60
Disobeying signal to land, 45-46,
78-80, 116, 121, 128-129, I37> 144,
.147, 157.
Distinguishing marks for military air-
craft and crews, 24, 72-74, 114, 122,
124, 145
Enemy aircraft, private, see Private
Enemy or neutral character, see
Character
Espionage, see Spies
Explosives, discharge of, from aircraft,
see Bombardment
Fauchille, M., proposed code, refer-
ences to, 18, 35, 36, 37, 40-55;
view as to belligerent passage of
neutral atmosphere, 65-66 ; proposal
regarding private enemy aircraft in
belligerent's territory on outbreak of
war, 85 ; omits reference to in-
demnities for sequestrated aircraft,
38, 107 ; proposal regarding neutral
aircraft found in belligerent territory,
80-82 ; text of code, 122-139
Flag as distinctive mark for aircraft,
72-73, 122
Flags of truce and aircraft, 106
Flight helped by adaptation to war,
7-8
Fortresses, etc., approach of private
aircraft, 48-55, 59, 78-79, 94-97,
154-157
Francs-Tireurs of the air, 72
Freedom of the air, jurists' arguments
for, 56-59 ; impracticability of,
58-64 ; M Fauchiile's rules, 122,
123 ; M. D'Hooghe's suggestions,
140-141 ; rules of Institute of Inter-
national Law, 145; of International
Association, 146
French Dicret of 13 Dec, 1913, as to
freedom of atmosphere, 59 ; as to
wearing of uniform by military air-
men, 74 ; French military aircraft,
distinguishing marks, 73 ; French
government's view as to export of
aircraft by a neutral for a belligerent,
90 ; as to marks of nationality, 116
Fuad Pasha, dispute with Todleben
during armistice of San Stefano, 105
Geneva Convention, application to
aircraft, 33, 44, 101, 115, 131
" Grace, Days of," for aircraft in
enemy country on outbreak of war,
85-87, 129-130
Grey, Mr. C. G., quoted, 73
Grovalet, Lieut., work on aerial law,
148 (footnote)
Hague legislation and aircraft, 11-23,
28-39, 99-io8
" Haimum" case, 1904, 46-47
Hazeltine, Dr. H. D., referred to, 41,
68
Henderson, Gen. D., quoted, 12, 22
History, how aircraft might have
changed, 48-49
Holland, Prof. T. E., on London's
liability to aerial attack, 12-15 >
view as to legitimacy of aircraft in
war, 42
Hostile acts, civilian aircraft engaging
in. 45, 50-52, 74, 78, 93-97> "4-
115, 116, 121, 123, 128-129, 137
Impressment of aircraft, 50-52, 80-81 ;
under British law, 157— 165
Indemnities for seized enemy property
in land war, 107-108 ; for seized
private enemy aircraft, 36-39, 107,
115, 126, 131, 137-138, 147.
International Conference of Paris, 1910,
Isolated enemy airmen, attacks on by
non-military population, 109-113
Jackson, Col. L., lecture at R.U.S. I.,
11-14, 22
Jenny-Lycklama, M., referred to, 42,
60, 66
Kaufmann, Prof., referred to, 37, 53,
127
INDEX
171
Land and sea aircraft, impossibility of
applying different rules to, 67-71
Law of war, see War
Legitimacy of aerial war, 3-4, 42, 43,
143, 145, 147
Le Moyne, M., proposed code, refer-
ences to, 35, 37, 41, 45. 49, 53» 107 ;
view as to treatment of private enemy
aircraft in a belligerent territory on
outbreak of war, 87 ; text of code,
147-148
London, liability to bombardment by
aircraft, 11-24
Maluquer, M., referred to, 42
Maritime law and aircraft, 89-92, 99,
100-102
Marks, distinguishing, see Distinguish-
ing
Messages for a belligerent, carrying of
by private airmen, 46, 51, 76, 78, 79,
94-97, 114-116
Meurer, Prof., referred to, 37, 43,
127
Military aircraft, definition of, 1 14,
122 ; conversion of private into
military aircraft, 50-51, 76, 124,
J 4 J
Military necessity, justification of firing
upon private aircraft, 45-55 ; im-
portance of recognising, 43
Military occupation and aircraft, 106
Nationality, marks of , 24, 116, 128
Neutral aircraft, entry of belligerent
atmosphere, 53, 116, 137-138, 141,
143, 144 ; treatment of crews
capture, 93-97. "4. 116, 117, 121 ;
engaging in acts of hostilities, 45, 50-
52, 75, 80, 121 ; circumstances in
which confiscable, 45, 46, 52, 76, 93-
97, 121, 137 ; liable to be tin .i upon
without warning, 45, 46, 52, 76, 121 ;
espionage by, 79 117, 121, 126, 141,
148; found in belligerent territory,
80-82, 120, 137- ij.S ; general
article, 121 ; M. Fauchille's articles
as to <! 1, 137, 139
tral airmen in enemy ain
treatment oi ure, 93-97, 121.
Neutral
liy, io a belligei 84, 120
ter, 17 1 1'>.
122, 12S, i
and theii |
1 i'i, 1 ; •; ; not bound to prevent
1
bound
from being used for observation on
behalf of a belligerent, 119, 134,
141
Neutrals, " Hostile Assistance" by, 45,
50-51, 94, 97; sale of aircraft by,
to a belligerent, 92, 119
Neutral territory and atmosphere, belli-
gerent passage of, 65-71, 118, 119;
belligerent entry of ports, 66-71,
119; wireless installations, use of
by belligerent aircraft, 120, 1 52-153 ;
M. Fauchille's rules, 132-137 ; M.
D'Hooghe's rules, 141 ; M. Le-
moyne's rules, 147-148
Observation of a belligerent's garrisons,
etc., from a neutral's atmosphere,
119, 134, 141
Occupation, military, and aircraft, 106
Occupied, but not defended, cities and
bombardment, 15-23
Parlementaires and aircraft, 106
Parts and accessories of aircraft, sup-
ply by a neutral power or neutral
nationals, see Accessories
Philit, M., proposed code, 41
Poincare, M , on sale of aircraft by
neutral nationals to a belligerent, 90
Postal correspondence on aircraft,
whether confiscable, 130, 141
Prisoners of war, whether civilian air-
men should be made, 93-97, 117,
118, 121, 128, 147
Privateering, see Hostile acts
Private enemy aircraft, treatment of,
36-39, 45-55 ; suggestion oi German
and French jurists, 36-39; in belli-
gerent territory when «ar breaks out,
S5-8S, 129; treatment ol crews,
93 97, 114, 115, 117, 121, US. 1 (7 :
proposed article ;>- to sequestration,
115; confiscation for certain arts,
36-39, 45-46, 52. 75 7"- 97. "I-
110, 117; firing upon in flight,
45-55,78-80, 110; M. Fauchille's
rules, 128-0; I'm.!, von Bar's rules,
143 : M. le Mo\ ne's rule, 147
Prizi ami aircraft, 49-50,
1, 'll
Proiectil e of, from aircraft,
I ! Declara ■ and Riglement y
10 14, 151 ; proposed artii le,
1 is : M. Faucbilles article, 1
Prof, \' 'ii Bat article, 1 1 ; ;
Bombardment
Property, enemy, d truclion of, in
land war, [06 107 ; sequestration
172
INDEX
Public non-military aircraft, 126, 129,
147
Questions which arise regarding em-
ployment of aircraft in war, 24-25
Raids by aircraft, 10-23 ; and attacks
by non-military population, 109-113
Railway termini, liability to destruction
by bombardment, 19-23, 149-150
Renault, Professor, referred to, 43, 53,
119, 127, 130
Requisitioned civilian aircraft, 50-52
Requisitions, bombardment for non-
compliance with, 150
Reserve, Royal Flying Corps, 51 (note)
Residential quarters of cities, liability
to bombardment, 10-11
Richards, Prof. Sir H. Erie, quoted,
60
Rolin, M. Alberic, referred to, 42, 127
Rolin, M. Edouard, referred to, 43
Royal aircraft factory, debt of flight
to, 7
Seacraft and aircraft, impossibility of
assimilating, 48-50, 99-100
Seaplanes, no objection to bringing
under land war rules, 1 00-101 ;
attached to warships, entry of neutral
ports, 69-71, 119
Scientific and philanthropic missions,
aircraft engaged in, 44, 130
Sequestrated aircraft not utilizable by
seizing belligerent, 38, 76
Sequestration of enemy property in
land war, 38, 107-108 ; of private
enemy aircraft, 36-39, 77, 115,
126-127, 147 ; of neutral aircraft,
80-84, 120, 137-138
Shelling of aircraft in flight, see
Destruction
Sick and wounded, carrying of, in
aircraft, 44, 131
Signals, transmission of, by civilian
aircraft, 51, 79, 114-116, 137
Signal to land, disobeying, 45-46,
78-80, 116-117, 128-129, J 44i l 47
Sovereignty of the air, pronouncement
of Institute of International Law, 56,
145 : of International Law Associa-
tion, 57, 146 ; Paris Conference of
1910, 56-57 ; arguments for, 58-64 ;
qualified sovereignty impracticable,
61-62 ; M. Le Moyne recognises,
147, 148
Special Code for the air, necessity for,
99-100
Spies, Hague Reglement, 29, 34-36 ;
can be shelled without warning,
78-80, 117; proposed article, 117;
M. Fauchille's article, 126 ; M. Le
Moyne's article, 148
Summons, prior, necessity for, before
shelling aircraft, see Destruction
Sykes, Col. F. H. , quoted, 34
Territorial zone for the air, 62-63
Theatre of aerial war, 123, 141, 143,
147
Todleben and Fuad Pasha, dispute
during armistice of San Stefano, 105
Uhlan scouts in 1 870-1 871, attacks
upon by French peasants, 11 1
Undefended cities and bombardment,
i5- 2 3
Uniform for airmen, 73-74, 114
Unneutral acts, 45, 70, 92, 137
Unqualified combatants, private airmen
may be treated as, 51-52, 1 14
" Visit," neutral aircraft and, 47,
141-142
Von Bar, Prof., proposed code, 41,
143-144
War, councils of, circumstances in
which civilian aircraft can be brought
before, 51-52, 94, 97, 114-115. ll 7,
121
War, laws of, generally, as affected by
employment of aircraft, 103-108 ; as
binding airmen like other soldiers or
sailors, 101, 115, 124-125
Warships, aeroplanes attached to, see
Seaplanes
Waterplanes, see Seaplanes
Wells, Mr. H. G., and aircraft raids,
10
Westlake, Professor John, quoted, 20
(footnote) ; referred to, 42
Wireless apparatus on aircraft, 87,
102 ; and neutral installations, 120 ;
Hague Conventions regarding use of
by belligerent land and sea forces,
152-153
Workshops of aircraft manufacturers,
liability to destruction by bomb-
dropping, 19
Zones of operations, entry of, by
civilian aircraft, 52-54, 76-77, 1 16 ;
treatment of airmen who enter,
94-97, 117
Zone, territorial, for the air, 62-63
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