Bombardment, how carried out. the United States and other Powers protested, Bismarck did not alter his decision. The whole question must be treated as open.1 § 158. Bombardment by land forces was not generally considered prior to the World War except in connection with assault or siege. But the experiences of that war, and in particular the new uses of aircraft and long-range guns, have raised the question 2 how far bombardment is lawful when it is solely for destructive purposes, and is not intended to be a prelude to occupation by armed forces. If, as is generally held, bombardment by aircraft within the theatre of operations is lawful, even though there is no intention to occupy the bombarded area, similar bombardment by long-range guns would appear to be legitimate.3 However this may be, Article 26 of the Hague Regulations enacts that the commander of the attacking forces, except in the case of an assault, shall do all he can to notify his intention to resort to bombardment. But it must be emphasised that a strict duty of notification in all cases of bombardment is not thereby imposed, for a commander only has to do all he can to send notification. He cannot do it when the circumstances of the case prevent him, or when the necessities of war demand an immediate bombardment. The purpose of notification is to enable private individuals within the locality to be bombarded to seek shelter for their persons and for their valuable personal property. Article 27 of the Hague Regulations enacts the former customary rule that all necessary steps must be taken to spare, as far as possible, all buildings devoted to religion, art, science, and charity, and 1 See above, vol. i. § 399, and Wharton, i. § 97. 2 See Fauchille in R. G., xxiv. (1917), pp. 56-76, 3 This expression of opinion has been put together from a rough note by the author, and he evidently intended to reconsider it, historic monuments, hospitals, and all other places where the sick and wounded are collected, provided these buildings, places, and monuments are not used at the same time for military purposes. To enable the attacking forces to spare them, they must be indicated by some signs, which must be previously notified to the attacking forces, and must be visible from the far distance from which the besieging artillery carries out the bombardment. No bombardment takes place without the sufferers accusing the attacking forces of neglecting the rule that such places must be spared. The fact is that their destruction cannot always be avoided, although the artillery of the attacking forces may not intentionally aim at them. That the forces of civilised States intentionally destroy such buildings, I cannot believe. In practice, whenever one belligerent accuses another of having intentionally bombarded a hospital, church, or similar building, the charge is always either denied with indignation or justified by the assertion that these sacred buildings have been used improperly by the accuser. Thus when France in 1870 complained that the Germans, during the siege of Paris, had deliberately bombarded the hospitals, the Germans asserted that it was an accident. Further, in 1870, during the siege of Strasburg, when the Germans bombarded the cathedral, they justified their action by asserting that the French had established an observation post thereon. Again, in the World War, when the Germans shelled and destroyed the cathedral of Rheims and other sacrosanct edifices, they again pleaded in justification that observation posts had been established thereon.2 PP: However this may be, no legal duty exists for the 1 See Zitelmann in Z. V., x. (1917), 1-19. For details regarding bombard ment of places enumerated in Article 27 during the World War, see Garner, i. §§ 285-289. Twofold Character of Espionage and War attacking forces to restrict bombardment to fortifications only. On the contrary, destruction of private and public buildings through bombardment has always been, and is still, considered lawful, as it is one of the means of impressing upon the authorities the advisability of surrender. Some writers 1 assert either that bombardment of a town, in contradistinction to its fortifications, is never lawful, or, at any rate, only when bombardment of the fortifications has not induced surrender. But this opinion does not represent the actual practice of belligerents, and the Hague Regulations did not adopt it. X ESPIONAGE AND WAR TREASON Grotius, iii. c. 4, § 18, No. 3-Vattel, iii. §§ 179-182-Hall, § 188-Westlake, ii. pp. 89-91-Lawrence, § 199—Phillimore, iii. § 96—Halleck, i. pp. 571-575, and in A.J., v. (1911), pp. 590-603-Taylor, §§ 490, 492Wharton, iii. § 347-Moore, vii. § 1132-Hershey, No. 383-Bluntschli, §§ 563-564, 628-640-Heffter, § 125-Lueder in Holtzendorff, iv. pp. 461-467-Ullmann, § 176-Bonfils, Nos. 1100-1104-Despagnet, Nos. 536-542-Pradier-Fodéré, vi. Nos. 2762-2768-Rivier, ii. pp. 282-284Nys, iii. pp. 209-218-Calvo, iv. §§ 2111-2122-Fiore, iii. Nos. 1341, 1374-1376, and Code, Nos. 1492-1497-Martens, ii. § 116-Longuet, §§ 63-75-Mérignhac, iii". pp. 285-299-Pillet, pp. 97-100-Zorn, pp. 174195-Holland, War, Nos. 84-87-Bordwell, pp. 291-292-Meurer, §§ 35-38-Spaight, pp. 202-215, 333-335-Ariga, $$ 98-100-Takahashi, pp. 185-194-Kriegsbrauch, pp. 30-31-Land Warfare, §§ 155-173Friedemann, Die Rechtslage der Kriegskundschafter und Kriegsspione (1892)-Detourbet, L'Espionnage et la Trahison (1898)-Violle, L'Espionnage militaire en Temps de Guerre (1904)-Adler, Die Spionage (1906)—— Routier, L'Espionnage et la Trahison en Temps de Paix et en Temps de Guerre (1915)-Bentwich in the Journal of the Society of Comparative Legislation, New Ser. x. (1910), pp. 243-249-M'Kinney in the Illinois Law Review, xii.:(1918), pp. 591-628. § 159. War cannot be waged without all kinds of information about the forces and the intentions of the enemy, and about the character of the country 1 See, for instance, Pillet, pp. 104107; Bluntschli, § 554a; Mérignhac, iii. pp. 280-284. Vattel (iii. § 169) does not deny the right to bombard the town, although he does not recommend it. within the zone of military operations. To obtain the necessary information, it has always been considered lawful to employ spies, and also to make use of the treason of enemy soldiers or private enemy subjects, whether they were bribed,1 or offered the information voluntarily and gratuitously. Article 24 of the Hague Regulations enacted the old customary rule that the employment of methods necessary to obtain information about the enemy and the country is considered allowable. The fact, however, that these methods are lawful on the part of the belligerent who employs them does not prevent the punishment of such individuals as are engaged in procuring information. Although a belligerent acts lawfully in employing spies and traitors, the other belligerent, who punishes them, likewise acts lawfully. Indeed, espionage and war treason bear a twofold character. For persons committing acts of espionage or war treason are-as will be shown below 2-considered war criminals and may be punished, but the employment of spies and traitors is considered lawful on the part of the belligerents. in contra Scouting Despatch § 160. Espionage must not be confounded, firstly, Espionage with scouting, or secondly, with despatch-bearing. distinc According to Article 29 of the Hague Regulations, tion to espionage is the act of a soldier or other individual who and clandestinely, or under false pretences, seeks to obtain bearing. information concerning one belligerent in the zone of belligerent operations with the intention of communicating it to the other belligerent.3 Therefore, soldiers not in disguise, who penetrate into the zone of operations of the enemy, are not spies. They are scouts who enjoy all the privileges of members of armed 1 Some writers maintain, however, that it is not lawful to bribe enemy soldiers into espionage; see below, § 162. 2 § 255. * Assisting or favouring espionage, or knowingly concealing a spy are, forces, and they must, if captured, be treated as prisoners of war. Likewise, soldiers or civilians charged with the delivery of despatches for their own army or for that of the enemy, and carrying out their mission openly, are not spies. And it matters not whether despatch-bearers make use of balloons, aircraft, or other means of communication. Thus, a soldier or civilian trying to carry despatches from a force besieged in a fortress to other forces of the same belligerent, whether making use of a balloon, or an air-vessel, or riding or walking at night, may not be treated as a spy. On the other hand, spying can well be carried out by despatch-bearers, or by persons in a balloon or an air-vessel.1 The mere fact that a balloon or air-vessel is visible does not protect the persons using it from being treated as spies; since spying can be carried out under false pretences quite as well as clandestinely. But special care must be taken really to prove the fact of espionage in such cases, for an individual carrying despatches is prima facie not a spy, and must not be treated as a spy until proved to be such. A remarkable case of espionage is that of Major André,2 which occurred in 1780 during the American War of Independence. The American General Arnold, who was commandant of West Point, on the North River, intended to desert the Americans and join the British forces. He opened negotiations with Sir Henry Clinton for the purpose of surrendering West Point, and Major André was commissioned by Sir Henry Clinton to make the final arrangements with Arnold. On the night of September 21, Arnold and André met outside the American and British lines, but André, after having changed his uniform for plain clothes, 2 See Halleck in A.J., v. (1911), 1 See below, § 356 (4), concerning wireless telegraphy. p. 594. |