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AERIAL LAW AND WAR TARGETS

By ELBRIDGE COLBY

Captain, United States Army Since international law is largely based upon custom, prevalent custom is more likely to evidence the real change than are formal documents. No more striking example of this effect of growing sentiment upon law can be cited than the successive pronouncements of John Marshall regarding the status of enemy property on land in time of war.' In 1796 he appeared for the State of Virginia in the case of Ware v. Hylton (3 Dallas, 199), and argued that by the law of nations confiscation was justifiable. In 1814, deciding from the bench of the Supreme Court the case of Brown v. United States (8 Cranch, 110), he declared that though the old rigid rule would allow confiscation, prevailing current practice forbade and no nation could sanction confiscation "without obloquy." In the Percheman case (7 Peters, 51), twenty years later, he announced that the confiscation of private property was contrary to the modern usage of nations "which has become law." This conception of a gradually growing international law is of particular importance when we approach the subject of adrial warfare. The airplane and the airship are relatively recent inventions. In effective and useful form they date practically from the beginning of the twentieth century. There is no vast body of aerial law to which we can resort for guiding rules, precedents, and principles. There is not even any consistent body of usage, antedating the World War, to which we can turn, at least no body of usage covering any considerable period of time or any wide range and variety of instances. Although in some respects an airplane is not much unlike a ship at sea, it cannot carry much contraband. It cannot stand by in mid-air and submit to visit and search. If captured, it is not readily brought in. If it transgresses in mid-air, and resists arrest, it can only be destroyed. Some have attempted to apply land law to the atmosphere. They have cited common law cases concerning overhanging trees, concerning shots fired across a field, concerning boundary lines which run vertically into the earth and determine mineral rights.2 They have tried to build up a law of the air by analogy where there is no analogy. Military uses of aircraft, they tried to fix similarly by analogy. It was felt that perhaps rules as to naval bombardments of coastal towns, or rules regarding sieges and land bombardments, might be applied to armed aviators. It was felt, also, that there might be applied to the roving airplane the rule of war that agents sent behind hostile lines
1 Moore's International Law Digest, Vol. VII, pp. 310-313. 2 Hazeltine, H. D., Law of the Air, p. 66, Kuhn, "Beginnings of an A~rial Law," this JouRNAL, Vol. IV, pp. 122-128.

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should be considered as spies. The Prussians in 1870-1871 even made a threat to this effect, though they did not carry it out. 'A contrary principle prevented. All uniformed aviators had the lawful rights of belligerents, aviators though they might be. And yet, all of these confused discussions really arrived at no conclusion. Law on the subject was really non-existent, principally because of lack of custom. A British general officer has said that it was at the East Anglia maneuvers of 1911 that the British air service first exercised any considerable influence on operations. 3 And it was not until 1912, when the Turks were campaigning in Tripoli, that the airplane had begun to assume a sufficiently definite status and certainty of performance so bombing could be carried on by aircraft. Then the first bombs were dropped. 4 Observation and even the direction of artillery fire are but aids to combat. Dropping explosives is combat itself. The airplane finally became an instrument of combat, in fact as well as in legal phraseology. Yet even before that, the imaginations of the lawyers had gone ahead. At the Hague Conference of 1899 there was adopted a five-year prohibition on the dropping of bombs from balloons; and in 1907 certain Powers agreed to prohibit "the discharge of projectiles and explosives from balloons or by other new methods of a similar nature." This agreement was signed by only ten nations, of whom the United States and Great Britain are the only great Powers that have ratified. There was, however, another definite step taken in 1907 at The Hague which seemed to cover a great deal of the ground. Article 25 of Hague Convention IV, regarding the bombardment of places on land, was made to read: "The attack or bombardment, by any means whatsoever, of undefended towns, villages, dwellings, or buildings, is forbidden." The words "by any means whatsoever" were deliberately inserted in this sentence, after considerable discussion, with the specific intention of making air attacks illegal.5 Sentiment of that time seemed quite settled on the point. General Davis remarked in July of 1908 that the launching of projectiles from the air might have been proposed but never really had been seriously considered by any responsible belligerent.' Yet the increasing efficiency of aircraft of all sorts, the improved lifting power of airplanes and the imagined potentiality of the Zeppelins under construction and test, soon set the publicists worrying about the matter again. In 1907, Professor T. E. Holland soundly
3 Callwell, C. E., Stray Recollections, Vol. II, p. 247.
4A4rial Bombardment

Manual, U. S. Army, Part I, p. 8; Abbott, G. F., The Holy War in

Tripoli, pp. 290-294.. The airplanes operating into Mexico with the Pershing expedition of 1916 carried principally messages and mails, and were at any rate so utterly inadequate for any military purposes as to raise no question. Hearings on War Expenditures, House Committee (Graham Committee), U. S. Congress, 1921, ser. 2, Vol. I, pp. 4, 5, 365. 5 Hazeltine, op. cit., p. 122; Holland, T. E., Letters upon War and Neutrality, 3rd ed., pp.

67-68; Garner, J. W., "Proposed Rules for the Regulation of Arial Warfare," this JOURNAL, Vol. XVIII, p. 56. 6Davis, G. B., "Launching of Projectiles from Balloons," this JOuRNAL, Vol. U, p. 528.

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pointed out that "this article is not to be taken to prevent the use of any means for the destruction of buildings for militaryreasons."17 In 1910, 0ppenheim tried to extend the operation of the article, saying: "It is not sufficient reason for bombardment that a town contains supplies of value to the enemy, or railway establishments, telegraphs, or bridges."" Then came Hazeltine in 1911, believing that "the very presence of anti-aircraft guns makes a town defended and therefore subject to attack from the air." This was a far cry from the wishes of the Russian delegates at The Hague in 1899 who had tried without success to get a permanent prohibition on the dropping of any explosives or projectiles from the air.9 Holland declared in April, 1914, that "London itself would unquestionably be included" among the "defended" localities, and yet trusted that the city "may be enabled so to act at once in case of danger as wholly to forfeit such claim as it may in ordinary times possess to be considered an 'undefended' town." He even concluded with the exhortation: "Let us not for a moment neglect our preparation of vertical firing guns and defensive airplanes." 10 The crux of the whole matter lay in that single word "defended." Of course a fort is defended. So is a fortified town. So is a town surrounded by detached forts placed at some distance therefrom, as were those at Lidge, Belfort, and Verdun. This is reasonable and logical. The town is actually and geographically, as well as legally, on the battlefield. But places are also even considered defended if they be occupied by a military force, though the 3 soldiers be merely in transit. ' This likewise is logical, for the very bases of modern strategy and tactics make the enemy army the proper objective of the commander of troops. He mustseek them out and destroy their tactical existence and utility wherever they may be. He does not seek to take an empty town; but he does desire to strike the army, which should not shield itself behind a civilian population. Can a great center of population be considered undefended if it contains barracks, bodies of troops, and military stores? Can atown which contains workshops and warehouses of great value in the conduct of the war, claim immunity simply because it is not surrounded. by a circle of distant forts? Can a city claim immunity in spite of the fact that it contains-"important government offices from which orders relating to war are issued" 1--especially when we remember that, though Napoleon
8 Land Warfare, 1910, Art. 118; Manual of Military Law (British), 1914, p. 253.

7War on Land, 1908, Art. 80, note.

9Hazeltine, op. cit., pp. 117, 123. Letters on War and Neutrality, 3rd. ed., p. 67. It is to be noted that the first and only time Bagdad was bombed from the air after its capture by the British, the occupying forces had long had"asystem of defense worked out, and anti-aircraft guns weresituated at various points to co6perate with the searchlights of the gunboats." Tennant, J. E., In the Clouds above Bagdad, p. 249. 2 Rules of Land Warfare, U. S.Army, 1914, p. 67, par. 214; Manual of Military Law (British), 1914, p. 253, par. 119, 123. 12 Westlake, J., International Law, Vol. II, p. 77.
10

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may have conquered Europe from a gray travelling coach, command in modern times is absolutely dependent upon the home organization in the home war office and naval center? Can we raise still another, and more difficult, question and say that defense against air is one thing and defense against land and water forces another? Can a city provided with merely land defenses be said to be defended against attacks from the air? 13 Can a city without forts and with only inconsequential troops, be said to be "defended" if it has a few anti-aircraft guns? Or suppose it has merely a protective fringe of captive balloons with suspended nets to entangle a flying enemy? Or suppose it has no mechanical means of protection and defense at all, but is considered protected because a group of planes at a distant a~rodrome is assigned to counter-attack any enemy which may venture within the area in which the city lies? These are all problems of importance in connection with the right to bomb any particular town, in connection with the definition of "defended" and of "undefended." The changing character of the theory on the point before the World War demonstrated quite clearly the fact that it was mostly theory, and nothing more. There had not yet been developed any body of practice from which a doctrine could be built in accord with facts and circumstances. Said Verdy de Vernois approaching the battlefield of Nachod: "Let history and principles go to the devil; after all, what is the problem?" 14 The problem is the problem of administering defeat to the enemy. The armies will strike, and the damage they do will extend, as far as their weapons will carry. The civilian population must be prepared to suffer harm today from which a hundred years ago they would have been immune. As Samuel Johnson remarked in Rasselas: "Against an Army sailing through the clouds, neither walls, nor mountains, nor seas could afford any security." Two British machines were out to raid Brussels, then in German hands. They came in sight of a Zeppelin and brought it down. The debris fell upon a convent near Ghent, and killed three nuns. Such are the consequences of war. An airship does not fight on the unpopulated ocean, but in -the air where every bullet and every bomb must eventually come to earth. On the first occasion when German flyers were brought down by American aviators aloft in American planes, a French peasant working in his field received a hole in his ear from an American bullet. It was a consequence of the war. When on the 23rd of January, 1915, German airplanes bombed Dunkirk and succeeded in setting afire a shed on one of the docks, a bomb fell just outside the United States consulate, breaking all the windows and smashing the furniture. It was a consequence of the war. When an American squadron bombed an enemy adrodrome, and covered with machine gun fire and demolished with
13Garner, J. W., lc. cit., p. 70. This point of view was informally advanced by others prior to 1914. Mr. Garner, writing in 1924, expressed it in order to condemn "defense" as a

criterion. 14 Foch, F., The Principles of War, tr. Belloc, p. 14.

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bombs a chateau close to, or on, the a~rodrome grounds, in the belief that it held German military personnel, they were simply carrying out their duty in the war. 5 In order to vitiate as far as possible enemy a~rial observation, troops were billeted in towns and private buildings instead of in tents. The towns and buildings so occupied, or reasonablysuspected of being so occupied, became fair targets. Thus we have the British bombing Clery-le-Grand, Clery-le-Petit, Coulcon, Briquenay, and Germont, "as well as roads and trenches." 16 Such are the consequences of war as it is fought today. I fail to see any difference, any essential difference save the difference in weapons, between such actions and the shelling of Paris in the Franco-PrussianWar.17 An army marching through a town, seeking cover from view in a town, quartered in billets in a town, or setting up a headquarters in a town, is itself not immune nor is the town. When it is said that private property is not a proper subject for attack, it is not meant that a private building becomes sanctuary for the time being whenever a belligerent seeks safety, neither a sanctuary in fact nor a sanctuary in law. The nations of the western world do not wage war in that fashion. In China a single British Army lieutenant may be able to keep in free operation the Peking-Tientsin Railroad, and prevent the native troops fighting their own little civil war, from disturbing civilian traffic or from monopolizing transportation facilities, however urgent may be the "military necessity." 18 But on the battlefields of Europe, military necessity rules, and private wishes, private property, private safety, bow before the stern requirements of war. This is all the more true, and the principle is seen to be all the more widespread in its application, when we realize that the armies of the present depend for their food, and ammunition, and orders, upon long lines of communication extending far into the rear areas, out of gunshot range, out of big gun range, and into the inhabited towns and thickly populated cities to the rear. They are far in the rear areas; though frequently not too far to be outside the cruising range of the aircraft of the present. Lord Kitchener is said to have remarked that "a plane is equal to a thousand men," and that may be so. But a plane does not contain a thousand men. Airplane raids must necessarily, from the very nature of the machines, be of a different character from the famous cavalry raids by Mosby, and Forrest, and Morgan in the American Civil War. The airplane may have the same objective; enemy personnel or supplies or centers deep behind the opposing line of riflemen. But it approaches them differently. It treats
15 Concerning the instances referred to, see Turner, C. C., The Struggle in the Air, pp. 40, 140-141, and Sweetser, A., The American Air Service, pp. 317, 333. Is G. H. Q., A. E. F., Summary of Air Information, November 6, 1918. 17 This shelling was condemned "on account of the misery caused to non-combatants," but at Brussels, General Voigts-Rhetz was utterly opposed to admitting the illegality of the practice, and there is little reason to suppose a different view will be taken in the future in -viewof its effectiveness. Bordwell, P., Law of War, pp. 89-90. 18 Current History Magazine, August, 1922, Vol. XVI, p. 828.

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them differently. Its object is always destruction and never capture. Imagine the impossibility of such a situation as that hypothetically described by Col. L. Jackson in the columns of the London Times of April 23, 1914: When is a town "not defended"? . . . I presume when it submits 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 commander replies, as it seems to me quite logically, "Then you surrender. Good. You will now obey orders." That is not the way it happened in the last war, and that is not the way it will happen in any war in the future, Col. J. F. C. Fuller and his masked aviators dictating imaginary terms to a "doped" Parliament to the contrary notwithstanding. 19 If the town contain any military stores or headquarters or factories at all, it will also contain a certain number of military persons, even though they be "unfit for active duty" or "Home Guard" units. These people will resist the airmen when they land. The town will be defended in one sense of the word and therefore in the other also. The town will also, more than likely, be provided with anti-aircraft guns and with fighting or pursuit planes to drive off such invaders. The town will again be defended. And being defended, it will be liable to bombardment and attack from the air, within the meaning of the international law regarding "defended" towns. As a matter of fact, it seems to have been practically demonstrated that such a defense is to be ordinarily expected. Military experts in Britain have laid it down that "it is necessary to make provision for the adequate antiaircraft defense of vulnerable places of first-class importance, such as the Capital, the arsenals, dockyards, and factories which manufacture articles 0 necessary in warfare." ' 2 What this means is made plain when we read the words of General Groves, who has recently remarked: "In the future war of areas, the only effective defense against aircraft attack will be the aerial counter-offensive. ' ' 21 And seconding him is the American Assistant Secretary of War, who declares: "The only known defense against aircraft is

aircraft."

22

There also speaks up another Englishman, this time one who has thought and written on the subject of the law regarding airial attacks. Mr. Spaight remarks: It will be difficult to tell in the future whether a place is defended or not, for defence against air attack will tend to take the form of a6rial
1 Fuller, . F. 0., The Transformation of War, p. 186. 20 Manual of Anti-Aircraft Defense (British), 1922, p. 2. 21 Quoted in the New York Herald, March 5, 1924. "Dwight F. Davis, speech at Baltimore, Md., March 18, 1924, U. S. War Department press release. The idea is reiterated by Brigadier-General William Mitchell in The Saturday Evening Post, Dec. 20, 1924, p. 4.

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LAW

counter-action rather than of artillery defence, and a squadron or flight of defending aircraft, perhaps based on some fairly distant a~rodrome, may suddenlyappear above a town which is entirely open as faras ground defence is concerned, and deny the raiding aircraft access to that town, which cannot then truly be said to be undefended. In view of the conditions and tactics of aerial warfare of the present, there is much sense in the doctrine set forth by Mr. Spaight, who says that "The old broad rule that a defended city may, and that an undefended city may not, be bombarded, is no longer of any practical value." In his very able article on the subject, the same gentleman goes on to indicate that during the World War the professed practice of the belligerents was, aside from reprisals conducted distinctly as such and therefore of no value to our discussion, to attempt to bomb "points of military importance." He cites guiding orders 2 3 which illustrate this prevailing doctrine quite clearly. Since it is true that at the close of any war, we find an accepted practice governing conduct, and that this conduct is finally after the conclusion of a peace formulated by jurists into a general code for the world at large, we may -deem it reasonable that the principle of the military objective will be the governing factor in new laws. It is the old sequence of custom making law in international wars. The Mexican War of 1846-1848 was responsible for the final definition of the military commission. The Crimean War saw enemy ships first permitted to sail from hostile port to their home coasts unmolested. The American Civil War had been waging two years before the Leiber Instructions were issued in 1863. The Franco-Prussian War was responsible for the discussions at Brussels, and for the rules relative to bombardment, military occupation, and franc tireurs, laid down at The Hague in 1899. The Spanish-American War marked the final disappearance of privateering, -which was still ostensibly legal at that time. The World War has been responsible for the proposed gas and submarine treaty of Washington, and for the proposed code for radio and aircraft recently drawn. This new code adopts the practice of the World War in regard to the "military objective" and defines it more or less closely. The new code says that in the theatre of operations bombing is generally permissible, and that in rear areas bombing 24 The is permissible if directed exclusively at points of military importance. defense or lack of defense of a place is, quite properly, laid aside as archaic and unsuited to aerial raiding. The new criterion is military importance of the objective. Suppose we assume then that this will be the permanent criterion of the
23Spaight, J. M., "Air Bombardment," in British Year Book of Internhtional Law, 1923-1924, p. 22-25. 4 2 In view of this we cannot accept as true the following statement of fact in a British instruction manual: "Attackfrom the air by a hostile power ... maybemadeupon . . . important cities and other vulnerable points at home and abroad, the defenses of which might be of a permanent nature." Manual of Anti-Aircraft Defense (British), 1922, p. 1. The final clause is misleading and unsound.

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future, which it is very likely to be, because it is in accord both with current practice and with sound strategical and tactical common sense. A belligerent will not wish to risk his planes and pilots, expend his gasoline, or waste his munitions, on any objectives except those of military importance. That will be the view of the military man oin whatever General Staff he may happen to serve. There are a few instances where an a rial bomber has not thought he hit his mark. There are still fewer where the home government would be willing to admit that he had missed his military mark and done damage to non-combatant persons or property. Here are two accounts of a single raid. A British Admiralty dispatch of November 24, 1914, said: A flight of airplanes flew from French territory to the Zeppelin airship factory at Friedrichshafen . . . and launched their bombs according to instructions. They report positively that all the bombs reached their objective, and that serious damage was done to the Zeppelin factory. The Berlin Lokalanzieger gave the following account: One of the airplanes glided down to within 1,000 feet of the airship shed and dropped bombs, but without doing any damage. The airplane's petrol tank was pierced, and the pilot forced to land in the Zeppelin yard near the shed. . .. The other machine dropped bombs near the town and the station, and damaged three houses. He then came over the Zeppelin works, and threw bombs without causing damage. 25 Allowances must be made for the censorship, and for the propaganda motives behind the phrasing and facts in each separate communiqu6. In the final report of General Pershing as Chief of Staff, September 12, 1924, he says: Enthusiasts often forget the obligations of military aviation to other troops, and sometimes credit that service with ability to achieve results in war that have not received practical demonstration ... During the World War extravagant tales of havoc done to enemy cities and installations were often brought back, in good faith, no doubt, by some of our aviators, but investigation after the Armistice failed, in the majority of cases, to verify the correctness of such reports. Again, the damage done to the Allies by the enemy's bombing craft, including Zeppelins, was almost negligible even from a material point of view, certainly so from a morale point of view and in its effect upon the final results. Of course, some damage was done by aircraft bombing, and it would doubtless be somewhat greater in another war, but until it becomes vastly more probable than at present demonstrated, then it cannot be said that we are in position to abandon past experience in 2 warfare. Turner, C. C., op. cit., p. 163. Similar variant belligerent interpretations of the effect of
airplane bombing arose when that mode of fighting first began, during the Italian campaign in 26 Tripoli. Abbott, G. F., op. cit., p. 291. War Department press release, Nov. 29, 1924.

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"The object of a bomber," says a Manual on the subject, "is to get the load of bombs over the target and to discharge them in such a way that the maximum number of hits are registered." 27 Some are bound to be "misses" instead of "hits," as any one who has handled a weapon on a target range must know. There will be other factors than the mere human equation to make some of them miss their target. The aviator flies by night to avoid observation and annoyance from hostile scouts and pursuit planes. He is sent to points deep in the enemy's territory beyond the effective range of his own artillery. Sometimes the town containing the military objectives of his flight is revealed to him only by a river line or some very distinct natural landmark of some other kind, from which he must calculate his distances and estimate the location of his objective. When he attacks in this fashion, innocent people are bound to be struck. How can the man across the street from the General Post Office in London be safe, when sixty yards is laid down as the average striking distance from a thirty-foot target which is attained only at an advanced stage of bombing training? Because a tobacconist or a haberdasher has a little shop over there, shall the enemies of England be compelled to refrain from using their agrial power to strike at the center of postal and telegraphic communications of the Empire? Such deadly accuracy as would be needed to demolish the government building with one or more bombs and have none fall anywhere else, is not probable. It is not reasonable to expect such accuracy under the conditions under which aviators have to work. No belligerent could fairly be held to that, whatever war-time propagandists or theoretical jurists may say. It would be "the 'pound of flesh' which the air commander must take without drawing civilian blood." An American commentator on this point has said: How, it may well be asked, can an aviator who flies over a city at great height during the night, when all lights are extinguished, as was the general practice during the World War, identify the persons and things which he is permitted to bombard? How can he distinguish between the military forces and the civil population; between military works, depots and factories engaged in the manufacture of arms and munitions or used for military purposes, and other establishments engaged in the manufacture or production of articles used for civil purposes, or between railway lines used for military purposes and those which are not? To require aviators to single out the one class of persons and things from the other and to confine their attacks "exclusively" to one of them will in many cases amount to an absolute prohibition of all bombardment. 8 The question is a question of accuracy and not aquestionof intent. Nobelligerent should be required to forfeit the normal percentage of hits which might be expected on his target, simply because there will be a percentage of "misses." The percentage of "hits" is a military calculation. By his effective
2

7Aerial Bombardment Manual, U. S. Army (1920), Part I, p. 8. 8 Garner, J. W., loc. ci., p. 69.

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five per cent. he may destroy his "military objective" wherever the other ninety-five per cent. may go. By it he may be able to win his war. It is not a question of an intention to hit civilians instead of military depots, or of an intention to terrorize generally. Like the actuary figuring expectant mortality for a life insurance company, he cannot foretell what will happen in any individual case, 29 but he can tell what his average will be. His intent is to place "the maximum number of hits" on his target according to his average accuracy. A single incident in American military aviation history will illustrate the point, an incident deliberately chosen from time of peace, in order to preclude all criticism as to partisanship and unusual inefficiency on the part of the bombers. In the spring of 1923, the United States Army Air Service sent two airplanes to bomb an ice gorge in the Delaware River, at the request of the local civil authorities. The aviators must be presumed competent, for no government would risk killing its own citizens in time of peace by sending insufficiently trained bombers or pilots. The Army is hedged about with too many legislative and judicial responsibilities for that. The ice gorge extended along a river line, not too hard to follow, for a distance of three miles. A total of seven bombs were dropped from a height of 1,500 feet, far lower than war conditions would usually permit. Only four bombs hit the attenuated target. One of the three that missed, nearly hit a farmhouse 300 feet from the river.30 Indeed, it is a question of accuracy. In peace time, from a comparatively low height, unharried by enemy guns or planes, with a long strip of a target, the percentage of hits was 57+. In war time, the farmhouse might very probably have been struck; the percentage of "hits" would almost certainly have been lower. Another post bellum instance of the employment of airplanes is also interesting. During British operations against Afghans on the northwest frontier of India, the General Officer commanding reported on May 17, 1919, that nearly 12 cwt. of explosives had been dropped on Basawal, on the ridge to the west of Dakka, and on Jalalabad; and the Afghan Commander-in-Chief declared that these British air bombs "inflicted heavy losses on the civil population and army of Afghanistan." It was announced that an air raid of May 21st caused "great confusion, and the town is practically deserted. Several government buildings were set on fire and citizens, Afghan officers, and the majority of the Afghan troops fled in panic." At this juncture the Amir Amanulla protested that "Jalalabad and the Royal Palace at Kabul and the tombs of his forefathers were bombed," and added: "It causes us great regret to see the example of Germany followed by the British." Then 3'1 am unable to subscribe to the "unusual degree of disgust and hatred" feltbyonewriter
toward an enemy for using such a method of attack, which, "although aimed at a city containing troops, munitions factories, and military depots, must inevitably fall almost entirely

upon civilians." Turneri C.C., op. cit., p. 144. 36 The New York Times, March 15, 1923, p. 9b.

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explanations were in order. The Viceroy informed the Secretary of State for the Colonies of the "facts" as follows: Kabur: Bombing was limited to the arsenal workshops and the Ark or citadel, which is used, not for residential purposes, but as a subterraneous magazine. The tomb of Abdur Rahman is in grounds outside the Ark, and it is possible that the area of burst of bombs might include it. . . .Jalalabad: Our information shows that Amir Habibulla has been temporarily interred in a grave on the golf course; no bombs have been dropped on any grave that could be recognized from the air as such. The Palace was bombed; it was being used as military headquarters. Damage was undoubtedly done by bombing to the town about which troops were billeted. In answer to the protest of the Amir, the British commander said: "My airplanes must continue to reconnoiter in order to secure my troops. . . .If our airplanes are molested, they will retaliate." Then the Amir countered as follows: "The advent of your airplanes is certain to cause extraordinary excitement amongst our people, who will fire at them in spite of our strict orders not to. The airplane will then bomb them." And he went on to plead for a complete cessation of adrial activity as certain to lead to trouble and irregularities." But it is not indicated that the British were willing to forego the many advantages which an efficient air force gave them over their less civilized enemies. Possibly their Flying Corps personnel had got into bad habits during the successive "reprisals" on the Western Front. Possibly some of their higher commanders recalled that little sentence in official instructions to the effect that the rules of international law apply only to warfare between civilized states, and "do not apply in wars with uncivilized states and tribes, where their place is taken by the discretion of the commander and such rules of justice and humanity as recommend themselves in the particular circumstances of the case." 12 There is no need for jumping hastily at conclusions and saying that the next war will be an a~rial war and a horrible war. 3 We should recognize as international law only whatever is in real life practicable and applicable and useful and reasonable, when we take all the circumstances into consideration, else the man in uniform will declare to the publicists of the printed book that the regulations and restrictions may be in print, but do not correspond with facts and conditions. Writing during the progress of the World War, a Swiss
31British Parliamentary Papers, East India, 1919, Vol. XXXVII, pp. 11-32.

"Manual of Military Law (British), 1914, p. 235, par. 7. In 1815, James Monroe declared it perfectly proper for General Harrison to have burned Indian huts and cabins in 1813, saying: "This species of warfare has been pursued by every nation engaged in war with the Indians on the American continent." Niles Weekly Register, March 18, 1815, Vol. VIII, pp. 35-36. "See on this point, John Bassett Moore's review of Hyde's International Law in the Columbia Law Review, Vol. XVIII, p. 83, a constructive review that is an excellent guide to proper'interpretation of the "lessons" of the World War; sadly too brief, and yet since supplemented by the same writer's book on International Law and Some Current Illusions.

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author claimed that aerial bombing "is unable seriously to further the war aim" and " can only serve to terrorize," and expressed a hope that a~rial warfare would finally vanish and "that modern war law would again confine aerial navigation and flying to the service of reconnoitering." 11 In August, 1922, the International Law Association, at its meeting at Buenos Ayres, declared that the radius of operations of military aircraft ought to be restricted,35 and thus attempted to take from armies all the advantage which an airplane gives of penetrating deep into hostile territory, and from a certain type of airplane its most distinctive features and the valuable functions which its wide cruising range permits. These were vain and fruitless efforts to send the science of war backward in its steps. Bombing will very likely go on, bombing from either airships or airplanes. This bombing will be actually or ostensibly directed at objects of military value, some less and some more remote from the firing lines of opposing armies. And when this bombing continues we may recall the curious yet perfectly obvious and understandable similarity between the sayings of two men. An American artilleryman, now a judge, who is author of one of the standard treatises on certain phases of military law, remarked: In the bombardment of places it is difficult to save any particular structure. Every siege gives evidence of this. To destroy a city with all it contains is indeed an extreme measure, not to be resorted to except for cogent reasons, yet it is perfectly justifiable when no other method suffices to reduce the place and this reduction becomes essential to the successful prosecution of the war." And more recently an American professor has said: On account of the very nature of aerial warfare, the solution bristles with difficulties, and no regulations agreed upon, even if they are scrupulously observed by the belligerents, are likely to be entirely effective in safeguarding the rights of non-combatants and private property in 37 all cases. With this idea firmly in mind, that any rules will be rules, only partially effective toward the ends for which they were devised, it is possible to examine the latest attempt to formulate regulations. A commission of jurists sitting at The Hague prepared a draft convention to regulate the conduct of aircraft in war, which included the following articles: Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants, is prohibited.
4Nippold, 0., Development of International Law after the World War, tr. A. S. Hershey, p. 144. 25 The Times (London), August 30, 1922, p. 7e. :6 Birkhimer, W. E., Military Government and Martial Law, 1st ed., p. 196. 1 Garner, J. W., loc. cit., p. 66.
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Arial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes. . . . In cases where the objectives specified are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bom38 bardment. It will be noted that, as has already been observed, the new rules permit bombardment practically without restriction in what military men call the "theatre of operations," and set up the criterion of the military objective in what military men call the "zone of the interior." It will further be noted that the draft articles do not say that the bombs must fall exclusively on military objectives, only that they must be directedexclusively at such. They do not say that the bombardment of the civilian population is prohibited, merely that the indiscriminate bombardment of civilians is prohibited. Nor do they define the difference between a combatant and a non-combatant in accordance with modern terms, under modern "selective service" and modern "industrial mobilization" for war. By paying some deference to the factories making "distinctively military supplies" they do get away from the old distinction which rests solely on whether a man wore khaki or "cit's" clothing. And yet they overlook the woolen factories which make the field uniforms and keep the soldiers warm through the winter and fit for the spring drives. They overlook the question of the national food supply as a military supply, as Great Britain claimed it to be, when she started exerting her very effective "economic pressure" on Germany. Furthermore, the old excuse of aiming at a military objective and hitting something else through sheer inaccuracy can still be advanced. The bombing will ostensibly be at military objectives. If the man-power of the nation is reduced, if the manufacturing efficiency of the nation is hurt, if the morale of the nation is lowered, so much the better; but of course the strategic statesman and the commander who orders his planes out will speak only of military objectives and will wave the document as his justification. His reports will speak only of them. The newspapers of his own country will mention them and them alone. Truly, as Professor Garner has remarked: The rules proposed by the commission undoubtedly leave a large discretionary power to aviators. To a much larger degree than in land and naval warfare they are made the judges of the legitimacy of theirattacks.
3SSupplement to the JOuRNAL, Vol. XVII, p. 250. See article on these regulations by Rear Admiral Win. L. Rodgers, in the JOURNAL, Vol. XVII, pp. 629, 640, and chapter in Moore, J. B., International Law and Some Current Illusions.

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They must determine in each case and with little opportunity for investigation and verification whether a particular object falls within the category of "military objectives," and if so, whether it is situated outside the immediate zone of land operations, and if so, whether it can be bombarded without "indiscriminate" bombardment of the civilian population; and, finally, whether in the case of a city, town or building situated within the zone of land operations there exists the "reasonable presumption" of military importance required by the rule. Manifestly, the most scrupulous aviator will commit errors of judgment under these circumstances if he resorts to bombardment at all. 9 We cannot put too much trust on rules. Not that these are so likely to be disregarded in the heat of action, but rather more that the rules are too frequently inapplicable to the changed situations which arise when "the next war" really comes.4 0 There were rules of warfare prior to 1914, and as Lord Cave has said, "no one conceived of the possibility of an infraction by civilized people of the rules laid down." Still, one nation employed a new naval weapon, the submarine, contrary to all existing laws regarding sea warfare. Another nation tried to starve the non-combatant population of its opponent into submission. A group of diplomats in Washington after the war declare that the use in war of toxic and asphyxiating gases has been condemned by the unanimous opinion of the civilized world, draw a treaty to banish gas from war, and the treaty has not yet been ratified by all the signatories! Indeed, as Lord Cave went on to remark, "Experience has shown how little reliance can be placed upon the sanction of public opinion." 41 We are finally thrown, possibly more than we might wish, upon the ordinary decency of ordinary individual belligerents. As Mr. Spaight has said: "In air warfare more than in its elder brethren of the land and the sea, the heart and conscience of the combatants are the guarantee of fair fighting, not any rule formulated in a treaty or in a manual." 42
3' Garner, J. W., loc. cit., p. 74. 40 Variant opinions as to the utility of aircraft in future war may be found in "Aroplanes in Future Warfare," by Capt. McA. Hogg, R.E., in Army Quarterly, October, 1924, Vol. XI, pp. 98-107; and series of articles in The Saturday Evening Post by Brig. Gen.Wm. Mitchell, Dec. 20, 1924, Jan. 10, 1925, Jan. 24, 1925, and March 14, 1925. 4' Transactions of the Grotius Society (1922), Vol. VIII, p. xxi. 4 2Spaight, J. M., loc. cit., p. 32.

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