Early war use of air. teenth centuries, but it was not till the twentieth century that the use of air in time of war became of great importance. Certain questions were raised during the Franco-Prussian War in 1870. The Germans threatened to treat observers in balloons as spies, but such persons lacked the essential attributes of spies and none were ever executed. Important persons also passed over the siege lines about Paris in balloons. Twentieth century rules. (b) By the declaration of the Hague Conference in 1899 "the contracting parties 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." This declaration was renewed at the Hague Conference of 1907, but was not generally ratified, owing to the fact that much progress in the use of aircraft had been made in the period between the two conferences. Even though the provisions of the declaration expired by limitation during the Russo-Japanese War in 1904, both parties continued to observe its obligations. Convention IV of 1907, Laws and Customs of War on Land, referring to bombardment, was expanded by the insertion of the words "by whatever means 'so that the article read: "Art. 25. The attack or bombardment, by whatever means, of towns, villages, habitations or buildings which are not defended, is prohibited." Some maintained that even though these were rules for war on land, this article covered aerial bombardment. Conferences upon aerial matters have been frequent since 1907. The Institute of International Law has considered the laws for the air at several meetings. The development of law has in general tended toward the maintenance of the idea that jurisdiction in the air belongs to the subjacent state.1 The Sub-Committee appointed at the Peace Conference in 1919 accepted this principle. Accordingly the general principles as to the conduct of war would IN. W. C. 1912, p. 56. also apply to aerial warfare. The Conference on Limitation of Armament, Washington, 1922, did not consider it expedient to draft detailed regulations for aerial warfare. (c) During the World War aircraft were generally used.1 Each belligerent made air raids in the opponent's territory and each accused the other of unlawful acts. Some neutral states early in the War prohibited entrance of foreign balloons and aircraft above their jurisdiction, e.g. Switzerland, August 10, 1914; United States, as Aircraft in When the United to Panama Canal Zone, November 13, 1914. States entered the World War domestic legislation forbade alien enemies to possess, use, or operate any aircraft, wireless apparatus or signaling device. Great Britain presumed hostile intent in any enemy aircraft approaching a merchant vessel. The Netherlands interned belligerent aircraft alighting in Dutch jurisdiction. 119. Postliminium (a) The word "postliminium The jus postliminium defined. is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for jus postliminium supposes that the captive has never been absent.2 The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. Acts of the enemy involving the captured person or property while in the enemy's possession are not necessarily invalidated if by the laws recognized by civilized states these acts were within his competence. Thus taxes paid during a hostile occupation or penalties for crime imposed 2 Justinian, I, xii, 5. 11 Garner, pp. 458 et seq. by the invader are held to discharge the obligation as if imposed by the regular authorities. Restoration of property or territory. (b) When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the coöperation of an ally, the conditions of the alliance will determine the obligation of the original possessor. (c) Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before recapture, Restoration of ships. the court shall award salvage according to law and the circumstances of the case, but not to contravene any treaty. When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.2 While Prussia was in possession of a section of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of December 11, 1871. 17 U. S. Comp. Sts. § 8426. The Two Friends, 1 C. Rob., 271. 120. Prisoners and Their Treatment (a) "All persons who are of particular and singular use and benefit to the hostile army or its government "1 are liable to capture. Levies en masse are now treated as public enemies. Who may be Within recent years persons who by reason of their made prisoners. trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen unless exempt by special convention. It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape or may be disciplined for attempting to escape, but if he escapes and is recaptured, no punishment other than such confinement as is necessary for his safe keeping is allowable. (b) It is forbidden to declare that no quarter will be given. Those who have violated the laws of war or the principles of humanity are liable to retaliation as a measure Quarter and retaliation. of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution." 2 (c) "Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed lines; but they can only be confined as an indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist." 3 Internment. (d) "The state may utilize the labor of prisoners of war according to their rank and aptitude, officers excepted. Their 1 Instr. U. S. Armies, 50; Appendix, pp. xi, xii. 2 Instr. U. S. Armies, 28. See Appendix, p. vii. Appendix, p. lxiv. tasks shall not be excessive and shall have nothing to do with the military operations. . . . The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance. Employment. (e) The exchange of prisoners of war is a purely voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange Exchange. is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values when those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc. (f) Prisoners of war may be released on parole, which is a promise to do or to refrain from doing certain acts in consideration of the grant of freedom in other respects. The punishment for breach of parole may be determined by the court.2 Parole. Sick and wounded. (g) The sick and wounded taken in the field become prisoners of war. Their treatment is now generally determined by the provisions of the Geneva Convention of 1906. This convention provides for the immunity and for protection of hospital, ambulances, and those engaged in the care of the sick and wounded, and for distinctive marks for this service, particularly the Red Cross.3 (h) The Hague Convention provides for a Bureau of Information to answer inquiries, to preserve property Information. found on battlefields or left by prisoners, etc.4 Bureau of (i) The treatment of prisoners of war during the World War was much criticized. Often the rules upon which states had 1 Appendix, p. lxiv. 2 See, as to prisoners of war, Appendix, pp. xxiii, lxiv. For details, see Geneva Convention, Appendix, p. xxxiii; Holls, The Hague Peace Conference," 120 et seq. Appendix, p. lxv. |