CHAPTER VI. SECTION IV. BOMBARDMENTS, ASSAULTS, AND SIEGES. 212. Bombardment of undefended places forbidden.-H. R. XXV: The attack or bombardment by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.1 1 Compare this article with the following from Convention IX of The Hague, 1907, Bombardment by naval forces in time of war: "ART. I. The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden. "A place can not be bombarded solely because automatic submarine contact mines are anchored off the harbor. "ART. II. Military works, military or naval establishments, depots of arms or war matériel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbor, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed. "He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances. "If for military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph 1, and that the commander shall take all due measures in order that the town may suffer as little harm as possible. "ART. III. After due notice has been given, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced, if the local authorities, after a formal summons has been made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force before the place in question. "These requisitions shall be in proportion to the resources of the place. They shall only be demanded in the name of the commander of the said naval force, and they shall, as far as possible, be paid for in cash; if not, they shall be evidenced by receipts. "ART. IV. The bombardment of undefended ports, towns, villages, dwellings, or buildings for the nonpayment of money contributions is forbidden." Holland, War on Land, says: "A place, although not fortified, may be bombarded if it is defended. This article is not to be taken to prohibit the use of any means for the destruction of buildings for military reasons. A place must not be bombarded with a view merely to the exaction from it of a ransom. (Art. 80, note.) Mr. Oppenheim, Land Warfare, art. 118, says: "It is not sufficient reason for bombardment that a town contains supplies of value to the enemy, or railway establishments, telegraphs, or bridges. They must, if it is necessary to do so, be destroyed by other means." 213. The use of balloons. The addition of the words "by whatever means was for the purpose, of making it clear that the bombardment of these undefended localities from balloons or aeroplanes is prohibited.1 1 The French Manual, by Lieut. Jacomet, art. 63, says: "It is forbidden therefore to throw projectiles from a balloon or aeroplane upon towns, villages, dwellings, or buildings which are undefended, unless it is a question of immovable property of immediate use to the enemy's army. 214. Defended place defined.-Investment, bombardment, assault and siege have always been recognized as legitimate means of warfare, but under the foregoing rule their use is limited to defended places, which certainly will include the following: (a) A fort or fortified place. (b) A town surrounded by detached forts is considered jointly with such forts as an indivisible whole, as a defended place. (c) A place that is occupied by a military force or through which such force is passing is a defended place. The occupation of such place by sanitary troops alone is not sufficient to consider it a defended place. 215. Throwing projectiles from balloons on forts and fortified places. There is no prohibition in The Hague Rules or in other conventions against throwing authorized projectiles from balloons or aeroplanes into forts and fortified places.1 1 Les Lois, Jacomet, art. 59. But see ante, pars. 174-175, and note; also H. D. I. 1907, appendix 7, p. 181. 216. Notice of bombardment.-H. R. XXVI. The officer in command of an attacking force must, before commencing a bombardment, except in case of assault, do all in his power to warn the authorities. T 217. The American rule.-Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. 1G. O. 100, 1863, art. 19. Mr. Oppenheim (Land Warfare, par. 124 and note) thus states the rule in Great Britain: "If military exigencies permit, the commander of an attacking force must do all in his power to warn the authorities before commencing a bombardment, unless surprise is considered an essential element of success. There is, however, no obligation to give notice of an intended assault." No notice was given of the bombardment of Paris in 1870. 218. No rule compelling belligerent to authorize population to leave besieged place. There is no rule of law which compels the commander of an investing force to authorize the population, including women, children, aged, sick, wounded, subjects of neutral powers, or temporary residents, to leave the besieged locality, even when a bombardment is about to commence. It is entirely within the discretion of the besieging commander whether he will permit them to leave or not and under what conditions.1 1 For action of Gen. Scott in refusing further truce to consuls at Vera Cruz, see Dig. Int. Law, Moore, sec. 1112. Scott Autobiography, II, pp. 426-428. The following are the conditions proposed by the Japanese at Port Arthur: AUGUST 16, 1904. From General Headquarters of the Japanese Army investing Port Arthur. To the General and Admiral highest in rank, commanding the Imperial Russian Army and Navy at Port Arthur. YOUR EXCELLENCIES: We have the honor to inform you herewith that it is the humane and magnanimous intention of H. M. the Emperor of Japan, to save from danger and accord protection to the women, children, priests, diplomats, military and naval attachés of neutral powers who are in Port Arthur and wish to avoid the dangers of the bombardment and assault. In order to carry out the kind solicitation of H. M. the Emperor of Japan, we propose the following: 1. In case you should have the intention of taking advantage of the well-meaning offer of H. M. the Emperor of Japan, you will inform us as to the approximate number of persons who among the above mentioned ought to benefit thereby, and after having divided them into classes; youths of sixteen years or above are excluded from this privilege. 2. Your bearer of the flag of truce bringing the reply must arrive at the first line of the Japanese army, north of Chouet-si-ying, on the main route leading from Port Arthur to Kin-tcheou, to-morrow, August 17, 1904, before one minute after 6 a. m. 3. The persons specified above will, under the protection of a white flag, repair to the same place where they must arrive on August 17, 1904, before one minute after two o'clock in the afternoon. 4. A troop of our infantry will also go with a white flag and at the time stated to the same place to await the arrival of the persons already mentioned. 5. The persons so stated will each have the right to carry away a single pack of ordinary size, the contents of which can be examined if it is thought necessary. 6. These packs must not contain letters, documents or other written or printed matter relating directly to the war, under pain of confiscation. 7. The persons before specified will be protected and escorted by our troops stated in article 4, as far as Dalny, where arrangements will be made for their departure. You are requested to accept or refuse the above propositions in a lump, no modifications can be brought about. If the bearer of the flag of truce referred to in article 2, does not arrive at the specified time, we shall consider our proposals rejected. We avail ourselves of the opportunity to express to you the assurance of our respectful sentiments. (S.) GENERAL BARON NOGHI, Commanding the Japanese Army Investing Port Arthur. (S.) Commanding the Japanese Fleet Blockading the Liao-tong Peninsula. 219. Diplomatic agents of neutrals.—Diplomatic agents of a neutral power should not be prevented from leaving a besieged place before hostilities commence. This privilege can not be claimed while hostilities are in progress. The same privileges should properly be accorded to a consular officer of a neutral power. Should they voluntarily decide to remain, they must undergo the same treatment as other inhabitants.1 1 See G. O. 100, 1863, art. 87, post art. 233. 220. Persons in zone between troops.-Persons dwelling in the zone between the opposing forces in the first stages of a siege are treated as inhabitants of the invaded locality. 221. Individuals leaving without permission.-Individuals who attempt to leave or enter a besieged place without obtaining the necessary permission are liable to be fired on and may be sent back into the besieged place or detained and put on trial as suspects. 222. Persons expelled may be sent back.-When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender.1 1 G. O. 100, 1863, art. 18. 223. Not compelled to cease fire when expelled.-It is not necessary to cease or relax fire because the enemy sends women and children out of his lines in order to get them to a place of safety, or to employ compassion, but fire must not be intentionally opened in their direction. 224. Can forbid communication with besieged place.-The commander of the investing force has the absolute right to forbid all communication between the besieged place and the outside. The application of this rule to diplomatic envoys of neutral powers is unsettled.1 1 On the 28th Sept., 1870, Count Bismarck, in reply to a request of diplomatic representatives of neutral States, shut up in Paris, to send out a courier once a week, said: "The authorization of exchange of correspondence with a besieged fortress is not, in general, in accordance with the customs of war; although we willingly authorize the transmission of open letters of diplomatic agents, provided their contents are unobjectionable from a military viewpoint, I can not admit that the opinion of those who consider the interior of the fortifications of Paris as a suitable center for diplomatic relations has a good foundation." Mr. Fish, in dispatch to Baron Gerolt, Nov. 21, 1870, said: "Paris, however, is the capital of France. There the diplomatic representatives of neutral States had their residence prior to the investment. If they think proper to stay there while it lasts, they must expect to put up with the inconveniences necessarily incident to their choice. Among these, however, the stopping of communication with their Governments can not be recognized. * * * The undersigned is consequently directed to claim that the right of correspondence between the representatives of neutral powers at Paris and their Governments is a right sanctioned by public law." See Moore's Dig. Int. Law, sec. 675. 225. Buildings dedicated to religious works, etc., to spared.-H. R. XXVII. In sieges and bombardments all neces sary 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 that 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. 226. Use of Geneva flag limited to hospitals, etc.-Only hospitals and places where the sick and wounded are located can be indicated by means of the red cross on a white ground. It is certainly desirable, in order to avoid injury from actual or erratic shots, that the sick and wounded in besieged places should be concentrated in some safe place, preferably in neutral territory, if possible to arrange. -1 227. Hague Convention IX, Art. V, par. 2, 1907. It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large stiff rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white.1 1 The foregoing rule adopted in this convention for naval warfare should be adopted for protecting buildings under bombardment in land warfare. 228. Buildings protected can not be used for military purposes. The besieging forces are not required to observe the signs indicating inviolability of buildings that are known to be used for military purposes, such as quarters for officers and men, as observatories, or signaling stations. 229. Pillage forbidden.-H. R. XXVIII. The pillage of a town or place, even when taken by assault, is prohibited." 1 Vide infra, par. 339 and note, |