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Convention No. 9. Respecting bombardment by naval forces in time of war 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
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Convention No. 9. Respecting bombardment by naval forces in time of war1 .
The first Conference expressed the “Wish” that the proposal to settle the question of the bombardment of ports, towns and villages by a naval force might be referred to a subsequent Conference for consideration. The subject was embodied in the Circular of Count Benckendorff and was dealt with by the Third Committee of the Conference of 1907, presided over by M. Hagerup (Norway), Professor G. Streit (Greece) acting as Reporter.
Coast warfare continued to be conducted with great brutality long after many of the excesses of land warfare had been modified and an attack on undefended commercial coast towns was recommended by the Prince de Joinville in 1844 in case of war with England. The Duke of Wellington rejected such a method of conducting hostilities as one which had been “disclaimed by the civilised portions of mankind.”
In 1882 Admiral Aube wrote an article in the Revue des deux Mondes1 expressing the opinion that “armoured fleets in possession of the sea will turn their powers of attack and destruction against the coast towns of the enemy...and will burn them and lay them in ruins, or at the very least will hold them mercilessly to ransom.” The question was again reopened in 1888 on the occasion of the manœuvres executed by the British fleet, the enemy part of which feigned to hold to ransom, under the threat of bombardment, great commercial towns, such as Liverpool, and to cause unnecessary devastation to pleasure towns and bathing-places, such as Folkestone, by means of throwing bombs. Professor Holland addressed a series of letters to the Times contending that such proceedings were contrary to the modern rules of international law, and that the bombardment of an open town ought only to be allowed for the purpose of obtaining requisitions in kind necessary for the enemy fleet and contributions instead of requisitions, further by way of reprisals, and in case the town defends itself against occupation by enemy troops approaching on land2 . A similar view was expressed by Mr Hall. “An undefended town may fairly be summoned by a vessel or squadron to pay a contribution: if it refuses a force must be landed; and if it still refuses, like measures may be taken with those which are taken by armies in the field....A levy of money made in any other manner than this is not properly a contribution at all. It is a ransom from destruction. If it is permissible, it is permissible because there is a right to devastate, and because ransom is a mitigation of that right3 .”
The subject was examined by the Institut de Droit International in 1896, and a set of rules was formulated by it. These rules started from the principle that bombardment of all undefended towns is prohibited and added some special rules required by the exigencies of naval warfare4 . The United States Naval War Code of 1900 adopted in the main the recommendations of the Institut and laid down that “the bombardment by a naval force, of unfortified and undefended towns, villages or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depôts of munitions of war, or vessels of war in ports, or unless reasonable requisitions for provisions and supplies essential, at the same time, to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given. The bombardment of unfortified and undefended towns and places for the non-payment of ransom is forbidden” (Article 4).
Discussions at the Hague.Such was the position of the question when the Conference of 1907 took it into consideration. Propositions were handed in to the Third Committee by the delegates of the United States, Spain, Italy, Holland and Russia. These proposals were embodied by their authors in a draft of seven Articles which was issued for the deliberations of the Committee1 .
The draft dealt with two separate matters, the first part relating to the bombardment of undefended ports, towns, villages, dwellings or buildings, the second laying down general rules applicable to bombardments by naval forces. The Convention follows this order.
Chapter i. Article 1.The first paragraph of the first Article is based on Article 25 of 2 H. C. 1899 (Regulations), and does not contain the words “by any means whatever” added in 1907. The meaning of the term “undefended” engaged the attention of the Committee but owing to the difficulty of distinguishing between the defence of a coast and of a town near the coast no definition was attempted2 . The second paragraph, however, treats as undefended towns, those before which automatic submarine contact mines are anchored. This paragraph was strongly opposed by Captain Ottley who was supported by the delegates of Germany, France, China, Japan and Spain. Mines, it was pointed out, being a general danger to navigation, and far more destructive than guns, it was illogical to render inviolable a town defended by mines and to refuse inviolability to one defended by guns. Moreover, if undefended towns are free from bombardment, what is the need of laying mines on the sea front? A belligerent who has undertaken not to bombard an undefended coast town is entitled to make use of the coast without expecting to run the danger of destruction on approaching it3 . This argument is sound and unanswerable. A town which has mines moored before its harbour has taken most effective steps to defend itself against occupation, and “the price of immunity from bombardment is that the place shall be left open to the enemy to enter4 .” Captain Ottley, however, failed to convince the Committee and the paragraph was retained by 21 votes to 5, 11 delegates not voting.
Article 2.The first Article having laid down the rule of non-bombardment of undefended coast towns, the second and third Articles proceed to make exceptions. These exceptions were considered necessary owing to the special character of naval warfare. Military works, military or naval establishments, depôts of arms or war material, workshops or plant which can be utilised for the needs of the hostile fleet or army, as well as ships of war in the harbour, are not included in the prohibition against bombardment. Considerable difficulty was experienced in framing the first paragraph. 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 “matériel de guerre,” an extremely wide term, was ultimately substituted. This Article might, and probably will, be held to confer a right on a commander to destroy by bombardment railway stations, bridges, entrepôts, coal stacks, whether belonging to public authorities or private persons. The commander of a naval force may destroy the military works, etc. with artillery, if the local authorities after due warning do not destroy them, and where military necessity demands they may be destroyed with artillery without any warning. The commander incurs no liability for unavoidable damage caused by such bombardments; he must, however, take measures in order that the town may suffer as little harm as possible.
Article 3.Article 3 provides the second exception to the prohibition of Article 1. Bombardment is allowed if, after formal demand, the authorities of an undefended coast town do not furnish provisions and supplies necessary for the immediate use of the naval force, but the requisitions must be in proportion to the resources of the place. The requisitions demanded can only be for the supply of the naval force before the place.
This Article adopts the principles of Article 4 of the Draft Regulations of the Institut de Droit International, but these are in excess of the measures allowed for land warfare. In case of undefended towns if requisitions are not forthcoming, the army proceeds to take them. Mr Hall was of opinion that where a naval force demanded requisitions they should send a landing party and follow a similar course1 . In land warfare, the General can usually from observations on the spot form an accurate estimate of the capacity of a place to provide the requisitions demanded, but in the case of a naval commander this will in many cases prove an impossibility. Under this Article, if after due notice, the amount of requisitions which the naval commander deems to be within the resources of the locality are not provided, he can at once open fire as a punishment for the refusal. The punishment appears excessive. A naval commander may have largely over-estimated the capabilities of a town, which may already be in a state of want, but on failure to comply with his demands the inhabitants will find themselves not only faced by hunger but by the further terror of a naval bombardment.
Article 4.Article 4 corresponds to one which was contained in the original proposition of the United States, and forbade the bombardment of a town on account of the non-payment of a ransom. The Committee preferred to suppress the word, as to forbid it in this connection might have led to the inference that the demand of a ransom was not prohibited in principle.
Chapter ii. Articles 5, 6 and 7.Articles 5, 6 and 7, which refer to naval bombardments generally and not only to cases allowed by the preceding Articles, correspond, with modifications to suit naval warfare, to Articles 26-28 of the Regulations on the laws and customs of war on land. The distinctive sign to be affixed to buildings devoted to religion, art, science, etc. is expressly described in this case, whereas in land warfare the sign is to be notified beforehand by the besieged to the besiegers. An objection was made by the delegates of the United States and Japan on the grounds of the difficulty of providing a distinctive mark which would be suitable under all circumstances, and of the possibility of its being abused. The sign described in Article 5 was devised by a Committee of three naval officers, Admiral Arago (France), Captain Castiglia (Italy) and Captain Behr (Russia)1 .
The form of the sixth Article is due to Captain Ottley’s representation, in which he received the support of the Japanese delegate (M. Tsudzuki). The original draft laid down that previous warning of a bombardment should be given to the authorities, but Captain Ottley pointed out that it was frequently of the greatest importance to attack and destroy as speedily as possible a fortress or arsenal of the enemy or war-ships in port. Notice would in many cases be fatal to the success of an attack. A fleet, for instance, arrives before a fortress or naval port without having been observed by the enemy; to give warning of the bombardment would nullify the effect of the manœuvre2 . Under the Article as it now stands, the commander of the attacking force must, except where military exigencies do not permit it, do his utmost to warn the authorities before commencing the bombardment. This exception brings the Article into harmony with the corresponding Article in 4 H. C. 1907, Regulations (Art. 26).
Article 7 by the transposition of the word “even” emphasises the prohibition against pillage contained in 4 H. C. 1907, Regulations (Art. 27).
Signatory Powers and reservations.The Convention has been signed by all the Powers represented at the Conference except China, Spain and Nicaragua. Great Britain, France, Germany and Japan made reservations of the second paragraph of Article 1, which provides that a place cannot be bombarded for the sole fact that automatic submarine contact mines are moored before its port. Chili made a reservation of Article 3.
The value of this Convention will depend greatly on the spirit in which it is executed by naval commanders. Like most of the other Conventions of the Conference it is tentative. The bold and categorical prohibition of Article 1 is weakened by the two following Articles. Towns which are undefended can avoid bombardment if after due notice they carry out the destruction of the military works, etc. mentioned in Article 2, paragraph 1, but “military necessities” may not always allow of this notice being given, and then the towns where such military works, etc. exist will find themselves without any warning, and although “undefended,” subjected to bombardment; not directly, it is true, for the guns of the attacking fleet will be turned on the military works, etc., but some parts of the town cannot escape destruction.
Undefended coast towns are still in many cases left to be dealt with as the “necessities of war” require, but it cannot be denied that it is a distinct gain to have obtained a definite agreement prohibiting the attack or bombardment by naval forces of undefended ports, towns, villages, habitations and buildings, and to have the prohibition made applicable in cases of non-payment of a money contribution.
Conventions for the adaptation of the principles of the Geneva Convention to maritime war (1899 and 1907)
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 27, 113-119; La Deux. Confér. T. i. pp. 111-119; T. iii. pp. 341-364, 518, 538-550, 655-9; Livre Jaune, p. 86; Weissbuch, p. 10; Annuaire de l’Institut de Droit International, Vol. xv. p. 313; Sir T. Barclay, Problems, etc. p. 51; Bonfils-Fanchille, Droit international (5th ed.), § 1277; T. E. Holland, Studies in International Law, p. 96; W. E. Hall, Int. Law, pp. 433, 537; C. Dupuis, Le droit de la guerre maritime, §§ 67-72; T. J. Lawrence, International Problems, etc. p. 119; Idem, Int. Law, p. 443; E. Lémonon, La seconde Conférence, etc. pp. 503-525; L. Oppenheim, Int. Law, Vol. ii. § 213; J. W. Scott, Bombardment by Naval Forces, Am. Journ. of Int. Law, Vol. ii. p. 285; H. Taylor, Int. Law, p. 499; J. Westlake, War, pp. 76, 315.
[1 ]Vol. l. p. 331.
[2 ]Studies in International Law, p. 96.
[3 ]International Law, p. 436.
[4 ]See Annuaire, Vol. xv. (1896), pp. 145, 148.
[1 ]La Deux. Confér. T. iii. pp. 655-9.
[2 ]The question of the bombardment of the Hague from the sea was mentioned during the discussion, by General den Beer Poortugael (La Deux. Confér. T. iii. p. 546). Professor Holland’s opinion on the subject given in 1890 may be referred to in this connection, Studies, etc. p. 105.
[3 ]La Deux. Confér. T. iii. p. 343.
[4 ]J. Westlake, War, p. 315.
[1 ]See ante, p. 353.
[1 ]La Deux. Confér. T. i. p. 117; T. iii. p. 352.
[2 ]Ibid. T. iii. p. 542.