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PROJECTIL ES DIFFUSING GASES.
could well be left to an internationl committee for formulation. (Fauchille, Le Domaine Aérien et le Régime Juridique des Aerostats, Paris, 1901; Annuaire de l'Institut de Droit International, 1902, p. 19; Nys, Droit International, I, p. 523.)
The objections raised against the use of balloons apply to “free balloons" and not to “anchored balloons.” The anchored balloons" are under control. These are not, therefore, subiect to the restrictions applicable to the "free balloon,” but remain as it were a part of the territory of the belligerent controlling the place of anchorage. The limitation to free balloons should be made in the rule.
In the discussion of this topic by the Naval War College in 1903 the conclusion was reached that
The reasons that applied at the time of the peace conference are equally valid at the present time, therefore the article * * * from present indications should be renewed. (International Law Discussions, 1903, p. 23.)
To this may well be added "for a term of five years from the date of said agreement."
Conclusion. The article would, according to the above discussions, read as follows:
The contracting powers agree to prohibit, for a term of five years, the launching of projectiles and explosives from free balloons or by other new methods of similar nature.
The present declaration is only binding on the contracting powers in case of war between two or more of them.
It shall cease to be binding from the time when in a war between the contracting powers one of the belligerents is joined by a noncontracting power.
1 (2) Projectiles diffusing gases. The discussion of the prohibition of the use of projectiles, the only object of which is the diffusion of asphyxiating or deleterious gases, showed support of the proposition on various grounds. The proposition was first brought forward by Captain Schéine in behalf of the Russian Government. The form of the proposition was at first to generally prohibit projectiles which diffuse asphyxiating and deleterious gases, but was subsequently made to apply not to projectiles which might on explosion produce gases as an incident of explosion but to those projectiles only whose sole object was the diffusion of asphyxiating and deleterious gases. Captain Mahan, early in the discussion, maintained that such a means of warfare was more humane than such a means as dismembered or lacerated the body; that the use of such projectiles involved no cruelty or bad faith, and that their use should be a legitimate means of warfare. Others maintained that the use of such projectiles would poison the air in a manner analogous to the poisoning of the water supply which had long been prohibited as a means of carrying on war. Some maintained that such a method of carrying on war would be barbarous and more cruel than the use of bullets. It was generally admitted that no projectile of the nature prohibited had thus far been tested, nor was it certain that a projectile whose sole use would be the diffusion of gases would be produced. Doubtless some of the discussion was aimed against the use of lyddite, which does not seem to have justified the expectations raised in regard to its use. Nor is its use solely for the diffusion of gases, but more strictly as an explosive in recent wars, and the diffusion of gases bas been simply incidental to the explosion.
In his report on the conference at The Hague, Captain Mahan states the position which he took on the use of projectiles the sole purpose of which is the diffusion of asphyxiating and deleterious gases. He says:
As a certain disposition has been observed to attach odium to the view adopted by this commission in this matter, it seems proper to state, fully and explicitly, for the information of the Government, that on the first occasion of the subject arising in subcommittee, and subsequently at various times in full committee and before the conference, the United States naval delegate did not cast his vote silently, but gave the reasons, which at his demand were inserted in the reports of the day's proceedings. These reasons were, briefly: 1. That no shell emitting such gases is as yet in practical use, or has undergone adequate experiment, consequently a vote taken now would be taken in ignorance of the facts as to whether the results would be of a decisive character, or whether injury in excess of that necessary to attain the end of warfare--the immediate disabling of the enemy--would be inflicted. 2. That the reproach of cruelty and perfidy, addressed against these supposed shells, was equally uttered formerly against firearms and torpedoes, both of which are now employed without
EXPLOSIVE OR EXPANDING BULLETS.
scruple. Until we knew the effects of such asphyxiating shells there was no saying whether they would be more or less merciful than missiles now permitted. 3. That it was illogical and not demonstrably humane to be tender about asphyxiating men with gas, when all were prepared to admit that it was allowable to blow the bottom out of an ironclad at midnight, throwing four or five hundred into the sea, to be choked by water, with scarcely the remotest chance to escape. If, and when, a shell emitting asphyxiating gases alone has been succesfully produced, then, and not before, men will be able to vote intelligently on the subject. (Holls, Peace Conference at The Hague, p. 494.)
The proposition aiming to prohibit the employment of projectiles the only object of which is the diffusion of aspbyxiating or deleterious gases was made with a view to avert unnecessary suffering in war. The uncertainty of the results of the use of such means was sufficient to condemn it in the eyes of many, yet the possibilities of the development of projectiles having this diffusion of gases as a partial object is not limited, as the declaration is aimed at projectiles whose sole object is the diffusion of gases. It is held that this prohibition would not apply to lyddite and certain other new explosives because the diffusion of gases is incidental. The prohibition hardly seems as was contended by the United States representatives sufficiently comprehensive. It may even happen as has been suggested that this prohibition may lead to the exclusion of some humane means of warfare.
The nature and phrasing of the second declaration seems to be such as to make its adoption in the present form inexpedient.
1 (3) Explosive bullets.—The third declaration “ to prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions," was directed particularly against the "dumdum" bullet which had been used by British soldiers. When the above prohibition was discussed the British representative stated that in a war with a civilized State a soldier hit by a small projectile would be sufficiently wounded to check his advance. He claimed that it was otherwise with the savage who in war even though he had been hit two or three times. Sir John Ardagh said:
The savage continues to advance, and before one has had time to explain to him that it is in flagrant violation of the decisions of the conference at The Hague he cuts off one's head.
It was from such reasons that the British delegate contended that the projectile should be of such a character as to accomplish its purpose, i. e., to render the enemy hors de combat. Some maintained that the use of a bullet which expanded or flattened on entering the human body was practically the use of an explosive bullet in contravention of the declaration of St. Petersburg of 1868. It was maintained that the argument for the “dumdum” bullet was, in effect, an argument for a larger bullet merely.
As Captain Crozier, of the United States commission, reports:
This subject gave rise to more active debate and to more decided differences of view than any other considered by the subcommittee. A formula was adopted as follows: “The use of bullets which expand or flatten easily in the human body, such as jacketed bullets of which the jacket does not entirely cover the core or has incisions in it, should be forbidden."
When this subject came up in the full committee the British representative, Maj. Gen. Sir John Ardagh, made a declaration of the position of his Government on the subject, in which he described their “dumdum” bullet as one having a very small portion of the jacket removed from the point so as to leave uncovered a portion of the core of about the size of a pin head. He said that this bullet did not expand in such manner as to produce wounds of exceptional cruelty, but that on the contrary the wounds produced by it were in general less severe than those produced by the Snider, Martini-Henry, and other rifles of the period immediately preceding that of the adoption of the present small bore. He ascribed the bad reputation of the “dumdum” bullet to some experiments made at Tübingen, in Germany, with a bullet from the forward part of which the jacket to a distance of more than a diameter was removed. The wounds produced by this bullet were of a frightful character, and the bullets being generally supposed to be similar to “dumdum” in construction had probably given rise to the unfounded prejudice against the latter.
The United States representative here for the first time took part in the discussion, advocating the abandonment of the attempt to cover the principle of prohibition of bullets producing unnecessarily cruel wounds by the specification of details of construction of the bullet, and proposing the following formula:
AMERICAN POSITION ON EXPANDING BULLETS.
“The use of bullets which inflict wounds of useless cruelty, such as explosive bullets, and in general every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combat, should be forbidden.”
The committee, however, adhered to the original proposition, which it voted without acting on the substitute submitted.
The action of the committee having left in an unsatisfactory state the record, which thus stated that the United States had pronounced against a proposition of humanitarian intent, without indicating that our Government not only stood ready to support, but also proposed by its representative a formula which was believed to meet the requirements of humanity much better than the one adopted by the committee, the United States delegate, with the approval of the commission and in its name, proposed to the conference at its next full session the above-mentioned formula as an amendment to the one submitted to the conference by the first committee. In presenting the amendment he stated the objections to the committee's proposition to be the following: First, that it forbade the use of expanding bullets, notwithstanding the possibility that they might be made to expand in such regular manner as to assume simply the form of a larger caliber, which property it might be necessary to take advantage of, if it should in the future be found desirable to adopt a musket of very much smaller caliber than any now actually in use. Second, that by thus prohibiting what might be the most humane method of increasing the shocking power of a bullet and limiting the prohibition to expanding and fattening bullets, it might lead to the adoption of one of much more cruel character than that prohibited. Third, that it condemned by designed implication, without the introduction of any evidence against it, the use of a bullet actually employed by the army of a civilized nation.
I was careful not to defend this bullet, of which I stated that I had no knowledge other than that derived from the representations of the delegate of the power using it, and also to state that the United States had no intention of using any bullet of the prohibited class, being entirely satisfied with the one now employed, which is of the same class as are those in common use.
The original proposition was, however, maintained by the conference, the only negative votes being those of Great Britain and the United States. (Holls. Peace Conference at The Hague, p. 511.)
Professor Holland, in speaking on “Some lessons of the peace conference" (Fortnightly Review, vol. 72 (1899), p. 956), says:
Any general renunciation either of particular means of weakening an enemy, e. g., by capture of private property at sea, or of the employment against him of particular kinds of weapons, e.g., the “dumdum”