Sir,—The protest reported to have been lodged by the Russian Government against the bombardment by the Japanese fleet of a quarantine station on the island of San-shan-tao, apart from questions of fact, as to which we have as yet no reliable information, recalls attention to a question of international law of no slight importance—viz. under what, if any, circumstances it is permissible for a naval force to bombard an "open" coast town.
In the first place, it may be hardly necessary to point out the irrelevancy of the reference, alleged to have been made in the Russian Note, to "Article 25 of The Hague Convention." The Convention and the Règlement annexed to it are, of course, exclusively applicable to "la guerre sur terre." Not only, however, would any mention of a naval bombardment have been out of place in that Règlement, but a proposal to bring such action within the scope of its 25th Article, which prohibits "the attack or bombardment of towns, villages, habitations, or buildings which are not defended," was expressly negatived by the Conference of The Hague. It became abundantly clear, during the discussion of this proposal, that the only chance of an agreement being arrived at was that any allusion to maritime warfare should be carefully avoided. It was further ultimately admitted, even by the advocates of the proposal, that the considerations applicable to bombardments by an army and by a naval force respectively are not identical. It was, for instance, urged that an army has means other than those which may alone be [121]available to a fleet for obtaining from an open town absolutely needful supplies. The Hague Conference, therefore, left the matter where it found it, recording, however, among its "pious wishes" (vœux) one to the effect "that the proposal to regulate the question of the bombardment of ports, towns, and villages by a naval force should be referred for examination to a future conference."
The topic is not a new one. You, Sir, allowed me to raise it in your columns with reference to the naval manœuvres of 1888, when a controversy ensued which disclosed the existence of a considerable amount of naval opinion in favour of practices which I ventured to think in contravention of international law. It was also thoroughly debated in 1896 at the Venice meeting of the Institut de Droit International upon a report drafted by myself, as chairman of a committee appointed a year previously. This report lays down that the restrictions placed by international law upon bombardments on land apply also to those effected from the sea, except that such operations are lawful for a naval force when undertaken with a view to (1) obtaining supplies of which it is in need; (2) destroying munitions of war or warships which may be in a port; (3) punishing, by way of reprisal, violations by the enemy of the laws of war. Bombardments for the purpose of exacting a ransom or of putting pressure upon the hostile Power by injury to peaceful individuals or their property were to be unlawful. The views of the committee were, in substance, adopted by the Institut, with the omission only of the paragraph allowing bombardment by way of reprisals.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, April 2 (1904).
The "Hague Conference" and "Hague Convention" to which reference was made in the last of these letters were, of course, those of 1899.
For the action taken by the Institut de Droit International in 1895 [122]and 1896, on the initiative of the present writer, see the Annuaire de l'Institut, t. xiv p. 295, t. xv. pp. 145-151, 309, 317; and his Studies in International Law, pp. 106-111. See also, at p. 104 of the same work, an opinion given by him to the Chevalier Tindal as to the liability of The Hague to be bombarded.
The later growth of opinion has been in accordance with the views maintained by the writer of these letters, and with the Rapport drafted by him for the Institut. The Hague Conference of 1899, though unable to discuss the subject, had registered a væu "that the proposal to regulate the question of the bombardment of ports, towns and villages by a naval force may be referred for examination to a future Conference." See Parl. Paper, Miscell. No. 1 (1889), pp. 139, 146, 162, 165, 258, 283. At the Conference of 1907 a Convention, No. ix., was accordingly signed and generally ratified, notably by Germany and Great Britain, Art. 1 of which prohibits "the bombardment by naval forces of ports towns, villages, houses, or buildings which are not defended," Germany, France, Great Britain and Japan dissenting from the second paragraph of this article, which explains that a place is not to be considered to be defended merely because it is protected by submarine contact-mines. Bombardment is, however, permitted, by Art. 2, of places which are, in fact, military or naval bases, and, by Arts. 3 and 4, of places which refuse to comply with reasonable requisitions for food needed by the fleet, though not for refusal of money contributions. The Acte Final of the Conference further registers a væu that "the Powers should, in all cases, apply, as far as possible, to war at sea the principles of the Convention concerning the laws and customs of war on land." (Parl. Paper, Miscell. No. 1 (1908), p. 30.) This Convention, No. iv. of 1907, in Art. 25 of the Règlement annexed to it, lays down that "the attack or bombardment, by whatsoever means, of towns, villages, habitations, or buildings which are not defended is prohibited."
The British Government had, in 1907, so far departed from the Admiralty views of 1888 as to instruct their delegates to the Conference of that year to the effect that "the Government consider that the objection, on humanitarian grounds, to the bombardment of unfortified towns is too strong to justify a resort to that measure, even though it may be permissible under the abstract doctrines of international law [?]. They wish it, however, to be clearly understood that any general prohibition of such practice must not be held to apply to such operations as the bombardment of towns or places used as bases or storehouses of naval or military equipment or supply, or ports containing fighting ships, and that the landing of troops, or anything partaking of the character of a military or naval operation, is also not covered."[123]