Problems of Law and War

Radio Record, Volume V, Issue 14, 16 October 1931, Page 1

Problems of Law and War

A Talk by....

A. C.

Brassington

LLB.

on

broadcast recently from 3YA

W* mean by law, not the law with which we are all familiar through the law courts, but the law of nations, or international law, that is to say the rules acknowledged by the general body of civilised independent states to be binding upon them in their mutual relations. Although the subject of law in any shape or form is repellant to most people, the questions of international law are of paramount importance. In order to make myself clear upon these problems, it is necessary to outline the nature of warfare prior to the Great War of 1914-18, and then to deal with the present day. One of the worst wars that Europe has ever experienced

Lo was the Lhirty Years War, which occurred in the Middle Ages, and was characterised by barbarities and horrors that to us seem indescribable. This thirty years’ war involved the wholesale slaughter of men, women and children, and practically no distinction was made between the armed forces and the peaceful citizens of the countries concerned. ,., During the course of many years, the countries of Europe became stricken at the terrible excesses which had been committed, and definite attempts were made by the intellectual leaders of the time to improve the conduct of hostilities and to enforce the distinction between soldiers and the peaceful civilian population. Military organisation and discipline improved and military commanders gradually accepted the distinction between the armed forces of the enemy state and civilians. The early international lawyers played a great part in this improvement, and the doctrine gained currency that war is really a relation between rulers and.governments, and not necessarily between their respective subjects in their private capacity. This humane doctrine was applied fairly extensively in the wars of last century. In particular, in the Franco-Prussian war of 1870, the Russo-Japanese war of 1904, and in the Boer War, the civil or non-combatant populations were promised security, provided they did not take part in the actual fighting. The great peace conferences held at the Hague in 1899 and 1907, at which all the chief powers of the world were represented, formulated rules of ‘international law, in an attempt to restrict hostilities as far as possible to the armed forces on either side. Among many matters dealt with, the rules forbade the following acts, the use of poison or poisoned weapons, the use of arms or explosives likely to cause unnecessary,

suffering, and any destruction of enemy property not imperatively called for by military necessities. The use of poison gas was discussed at length, and the conference of 1899 agreed to renounce the use of poison gas in warfare.- Furthermore, it was agreed to prohibit the bombardment, by whatever means, of undefended towns. The effect of these two great peace conferences was to emphasise the distinction between combatants and non-combat-ants, and the endeavour was made to restrict the field of military opera~ tions in order to avoid the injury or destruction of peaceful civilians, women and children. ia Germany, however, long before the Great War, thé doctrine was fairly widely held among their military commanders that military. necessity might justify the breach of these rules of war, and that all the resources of the enemy’s government should be attacked, its finances, railways and ‘stores. Though they admitted the binding force of the rules of international law, they maintained that no limits of violence need be observed in cases where the safety of the army was endangered, or when the observance of the rules might lead to defeat. As we know the rules of warfare were brushed aside in 1914-18, and the distinction between armed forces and the civilian population began to disappear. By the end of the war, the civil populations were the, subject of aerial attack and large numbers were dying of starvation. The distinction between combatant and non-combatant was being

broken down. After the war, and the creation of the League of Nations, it was popularly supposed that warfare would be at least controlled by rules of international law, even if it could not be prevented. The nature of the changes that had taken place in the methods of modern warfare were only dimly appreciated by the public, and it was no doubt believed that the old distinction between combatants an‘ non-combatants would be revived (Concluded on page 2.)

Law and War

(Continued from page 1.) and strengthened; in other words, that if another war came the civil population would not be objects of attack in an unrestricted manner. The defeat of Germany was believed to imply a general overhauling of the rules of war, and the observance of the revised rules in future. What was overlooked was that the old rules were obsolete and that new rules based on the same ideas must necessarily become rapidly obsolete also. The point I wish to stress is that since the war no attempt has been made by the League of Nations to draw up amended rules to meet the changes

caused by modern scientific invention and the latest developments in warfare. The League has not moved in the matter because it is known that any attempt to preserve the civilian population from military attack, by the mere adoption of rules or laws, would be unsuccessful. The League has concentrated upon the prevention of war, not its regulation, once it has broken out. ‘There are weighty reasons why, in a future war, it will be impracticable to distinguish between civilian and soldier A war in the present year would differ from the wars of the past in many important respects. For instance, the general use of conscription and the organisation of the whole nation, so as to release as many able-bodied men as possible for the fighting front. General Ludendorf said

that the army and the nation are one. He was right in this, because if one now helps an enemy civilian one indirectly helps an enemy combatant. We now think of a‘whole nation in armsevery man, woman, and child is but a unit in a great organised nation, and an injury. to’one is an injury to all. We can no longer distinguish between the troops in the trenches, the women in the munition factories, or the workers in the fields. ‘Take the interesting example of a shipment of condensed milk to Germany during the war. -One would suppose that the cargo of condensed milk would chiefly be of use, to the German babies’ in arms. But the fats in the’ condensed milk could by scientific processes be turned into explosives, ang the empty tings came in useful for thaking hand grenades, Consequently we could not permit the export of condensed milk to an enemy for fear of its being diverted to warlike uses. Lipsticks can be converted to their original glycerine and so become explosives. In Germany during the war they requisitioned for war purposes such articles:as name-plates, doorknobs, curtain-rods and coat-hangers. I quote these instances from a pamphlet issued: by .the League of Nations. which proves that no distinction can be made’ between goods and food for civil uses-and for: military uses. To starve the enemy’s army, to deprive men of munitions of war, you must starve his women and children and deprive them of all imports. We now have the recognised use of economic pressure by crippling the industries of the.enemy and ruining ‘his financial structure. In this way it is lawful to destroy the savings of the civilian population, to strike at the widows and the aged, and condemn them to lives of want. Aeroplanes and Poison Gas. ONSIDER also the use of bombing planes for night attacks upon factories, bridges, railway stations, and the like. Such attacks can only result in the death of civilians, and gas would be used. Where a whole nation is organised for the prosecution of a war it is just as important to destroy the industrial centres of population as to destroy the army in the field. The great advance in aviation and the preparation of poison gas has meant that no country can afford to neglect these inventions, and the air forces of all the Powers are to-day provided with gas bombs, though the use of poison gas was, prior to the Great War, definitely forbidden by agreement among the Powers. It is significant that the League of Nations has made no attempt to draw up rules restricting the use of poison gas or restricting the bombardment of industrial centres and large cities. This is because it is known that rules of this nature. if agreed upon, would inevitably be thrown aside as the strain of war became intense. The successful use of aeroplanes requires that attacks be made by night and an aviator flying over comparatively unknown territory and over darkened : cities’ must destroy large numbers .of men, women and children by aerial attack: The destruction will be the greater because large populations are always found in the centres of industry. , It is impossible to regulate aerial attack so as’ to spare the civilian population-unless aerial attack were renounced for ever by the Powers, But none would forego so valuable a

weapon and hence the impossibility of dealing with the problem. Q Ships and Submarines, USEFUL example is furnished from submarine warfare. The laws of war prohibited the sinking of passenger vessels and other unarmed ships, unless the passengers and crews were removed to safety before sinking the vessel. But the nature of submarine warfare soon caused the breakdown of the rules. The use of "mystery ships" and the improved methods for the detection and destruction of submarines, forced submarine commanders to take no chances in a matter which meant life or death to the submarine crews. It became too dangerous for the submarine commander to spend valuable time in ascertaining the nature of the vessel he props: to attack. He was in many casts forced to adopt the course of discharging his torpedoes first and making inquiries later. Similarly, the aviator flying over hostile territory will be compelled by the instinct of self-pre-servation, not to risk his life by attempting to make quite sure of the nature of his target. The chance will have to be taken by the city populations, not the aviator flying high above them. Rules to regulate submarine warfare are useless, and rules to protect cities from aerial attack are useless also, The only way to deal with the submarine is to abolish its use altogether, and similarly with aircraft fiying over hostile territory at night, « time. J The problem of the internationa lawyers prior to the Great War was to regulate the violence of war and to protect, as far as possible, innocent people from destruction. The problem has now changed. No attempts to regulate the conduct .of war will ever be successful-it is recognised that the task is to prevent war from ever breaking out. The elaborate machinery of the League of Nations is directed to the prevention of the outbreak of wars, and this has been supplemented by the Kellogg Pact for the renunciation of war. My address was entitled "Problems of Law and War," and I should like you to remember three things, about which I hope I have now convinced you. firstly, that any future war must be even more terrible than the last war, because women and children will be objects of attack; second that international law will be powjless to regulate the violence of war, once it has commenced; and thirdly, that all efforts must be devoted to the prevention of war, if civilised life is to continue to exist.