Thanks, Curioso, for the further exposition of your thoughts on this issue. You are certainly not the first one to disagree with me on this Forum, and I'm sure you won't be the last. It's a tough one, but I still can't accept your view that the 1907 Hague (IV) Convention was and is applicable to air bombings.Curioso wrote:Mr. Kaschner,(snip)
thank you for your thought-provoking input. I have to say I disagree with you, because you considered only one of two ways to international law; the voluntary cession of parts of national sovereignty by the ratification of binding international treaties.
The other one, which was pointed out in the other thread by another poster, and which made me want to pursue this issue, is of course the establishment of customs. I did say I do not believe that the Hague Draft Rules became binding international law in this way - but that is my position because there is not a pattern of recognized actual customs supporting those rules. Quite the contrary.
On the other hand, it could certainly be argued that the 1907 Convention IV _already_ was customary; remember its preamble, it states it was intended to organize and set forth what were already the "laws and customs" of war on land. And after 1907, the Convention as a whole was largely respected in most wars. There were violations, but these were regularly decried and denounced as such. War crimes - violations of the existing customs of war, which were basically summed up by the 1907 Conventions (the IV and the others) - were a serious issue in the settlement agreements of WWI.
I need to do more research on this issue, but for the time being I deem that what was argued with regard to the Hague Draft Rules, and proven unapplicable to them, could very well be argued, and proven applicable, with regard to the 1907 Conventions.
Of course the 1907 Convention IV, regardless of the outcome of the above issue, _would_ be applicable, in any case, to aerial bombing missions between countries that had ratified that Convention and never renounced it.
First, let's take a look at the applicable treaty provisions and their background.
There was a draft International Declaration Concerning the Laws and Customs of War dated August 27, 1874 and issued in Brussels. Its provisions concerning bombardment were as follows:
This draft was adopted only three years after the Franco-Prussian war, which saw the indiscriminate long range bombardment of Paris by the Prussian foces, with heavy (for those days) loss of civilian life. Note that bombing by balloons, although not prevalent, was certainly known at the time, but was not specifically mentioned. And of course bombing by heavier than air aircraft was totally unknown, as no airplane had yet been successfully flown.Sieges and bombardments
Art. 15. Fortified places are alone liable to be besieged. Open towns, agglomerations of dwellings, or villages which are not defended can neither be attacked nor bombarded.
Art. 16. But if a town or fortress, agglomeration of dwellings, or village, is defended, the officer in command of an attacking force must, before commencing a bombardment, except in assault, do all in his power to warn the authorities.
Art. 17. In such cases all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand
The Hague (II) Convention of July 1899 stated in its Preamble:
The 1899 Convention limited its applicability to cases where all belligerents were parties to the Convention, and provided in its Regulations the following:that in cases not included in the Regulations adopted by them [the High Contracting Parties], populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience;
They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood;
With very minor differences, the 1899 Convention contained essentially the same language as in the Brussels Declaration, and all the major combatants (I'm not sure who all the minor ones were) in WWI became parties.Art. 25. The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.
Art. 26. The commander of an attacking force, before commencing a bombardment, except in the case of an assault, should do all he can to warn the authorities.
Art. 27. In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. The besieged should indicate these buildings or places by some particular and visible signs, which should previously be notified to the assailants.
On the same date there was promulgated the "Hague Declaration (IV,1), to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature", which provided that
[My emphasis.]The Contracting Powers agree to prohibit, for a term of five years, the launching 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.
But neither the United Kingdom nor Turkey became parties to the Declaration.
Some eight years later, after the above Declaration had expired by its terms, the 1907 Hague (IV) Convention was adopted. Its Preamble contained language similar to the 1899 Convention, it also included an "all belligerents" clause, and further provided in its Regulations that:
The sole substantive difference between the two Conventions is the addition of the phrase "by whatever means" in Article 25 of the later, which deals with undefended places.Art. 25. The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
Art. 26. The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.
Art. 27. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.
But neither Greece nor Italy became parties to the 1907 Treaty.
However, in conjunction with the entire group of Conventions adopted at the Hague in October, 1907 there was also promulgated a Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, which renewed the 1899 Declaration and provided that:
Arguably, the 1907 Declaration continued in effect indefinitely, as the Third Peace Conference never took place, but although the United Kingdom was a party to this one, neither Austro-Hungary, France, Germany, Italy, Romania, Russia or Turkey became parties to it.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.
I can think of two possible arguments, somewhat related, on your side of the issue - neither of which, IMHO, can withstand analysis.
The first is that (putting aside the isssue of whether the Soviet Union denounced all Czarist Treaty obligations, as to which David Thomas has raised some doubts) although technically the "all belligerents" clause in both the 1899 and 1907 Conventions would seem to negate the applicability of either to conduct of the belligerents in either WWI or WWII, all major belligerents in both wars were parties to one or the other of the Conventions, and as the provisions regarding bombardments were essentially identical, the "all belligerents" clause should be deemed to be satisfied and, that being so, Articles 25-27 should be deemed to apply to bombardment by air.
The basic problems with that argument are that (a) in 1899, the Parties could surely not have envisioned the nature of air warfare as it developed in the course of WWI and surely could not have thought that "bombardment" dealt with in Articles 25-27 covered anything other than bombardment by land; (b) the prohibition in Article 25 could, in terms of air warfare, apply only to "open cities" declared as such, for virtually any city within a given territory could be defended by fighter aircraft based many miles away, (c) Article 26 could not apply, as an attack by air was clearly an assault, and Article 27 could not have been intended to apply to high altitude bombing, where the required distinguishing signs would have been indistinguishable, (d) if those Articles were meant to cover the matter of arial bombardment, why the two Declarations? and finally (e) if the addition of the phrase "by whatever means" was intended to insert the concept of bombardment by air into the 1907 Convention, then the argument for the inapplicability of the "all belligerents" proviso due to the substantial identity of the two Conventions must surely collapse.
Second: It could be argued that as both Conventions recognize that their provisions are not exclusive, that general principles of customary international law still apply, that the provisions of the Conventions reflect certain, but not all of such principles, and accordingly the effect of the "all belligerents" proviso simply does not apply in the case of air warfare.
The problems with that argument are (a) an "all belligerents"" clause appeared in all of the relavent treaties and must itself have been element of customary international law inso far as the laws and practices of war were concerned. One could scarcely expect any nation to agree to be contractually inhibited in its conduct of warfare when one of its enemy combatants was free of any such inhibition - even though the nation might, under appropriate circumstances, deem it in its own self interest to unilaterally impose such restrictions upon itself -, (b) even if the "all belligerents" clause were written out of both Conventions, the same difficuties of interpreting their provisions as relating to air warfare apply - they just don't fit!, and (c) the fact that specific and intentionally temporary Declarations relating to bombardment by balloon or "by any other methods of a similar nature" were entered into contemporaneously with the two Conventions indicates that the Conventions themselves were not intended to cover air warfare, which lay outside their scope and required treatment by other means.
Well, then, do the Declarations themselves prohibit bombings by air? Clearly not. The first specifically expired by its terms in 1904; the 1907 Declaration may be argued to have an indefinite life, but most of the major combatants in WWI and WWII were never parties to it.
And I think we are both in agreement that not by 1907, and certainly not by 1899, had there been sufficient time or experience for any general pattern of customary international law to become established as to the conduct of air warfare, at least by heavier than air aircraft. The first flight by the Wright brothers took place in 1903, and although others vie for the honor of being first they all took place roughly about the same time. If no such customs had been established by the time of the draft Hague Rules of 1923, how could they have been established in 1907, only a few years after the first heavier than air flight?
Sorry to be so lengthy with this, but I obviously got carried away.