700.00116/129

The American Delegates on the Commission of Jurists ( Moore, Washburn ) to the Secretary of State

[Extract]

Sir: We beg leave herewith to transmit in printed form, in English and in French, the General Report of the Commission of Jurists appointed to consider and report upon the revision of the rules of warfare.50 This report, which bears the signatures of all the members of the Commission, contains the codes of rules prepared by the Commission to regulate, respectively, the use of Aircraft and of Radio in time of war.

The Commission of Jurists, as the Department is aware, was appointed under a resolution adopted at the Washington Conference on the Limitation of Armament on February 4, 1922, by the United States of America, the British Empire, France, Italy and Japan. This resolution provided for the constitution of a commission to be composed of not more than two members representing each of the Powers above mentioned. The Hague was subsequently chosen as the place of meeting, and the Dutch Government accepted an invitation to be represented on the Commission.

The Commission held thirty plenary sessions, the first of which took place on Monday, December 11, 1922, and the last on Monday, February 19, 1923. All the sessions were held in the Peace Palace. The first session was formally opened by His Excellency Jonkheer H. A. van Karnebeek, who, as Minister of Foreign Affairs of the Netherlands, attended and made in behalf of his Government an address of welcome. This formal opening was succeeded on the same day by a business meeting, at which Mr. Moore, the delegate of the United States, was named as president of the Commission.

The Commission, when it first assembled, was composed of ten members, each of the six governments being represented by two delegates except the United States and Italy, which had only one each. On December 23d, however, Mr. Moore, whose labors and responsibilities the presidency of the Commission had necessarily somewhat increased, suggested to the Department that the United States appoint a second delegate, and the President was so good as to name for the post Mr. Washburn, Envoy Extraordinary and Minister Plenipotentiary at Vienna. Mr. Washburn reached The Hague on January 10, 1923, and immediately entered upon the discharge of his duties. He attended the meetings of the Subcommittee on [Page 67] Aircraft, which was then sitting, and later advised with our member of the Subcommittee on Radio; and for a time the demands upon him were exceptionally heavy by reason of a special session of the Permanent Court of International Justice, whose meetings Mr. Moore was obliged to attend. Mr. Washburn later served as the United States member of the Drafting Committee (Comité de Rédaction), which supervised the final text of the codes of rules and drew up the General Report.

By the Washington Resolution it was provided that the Commission might be advised and assisted by experts in international law and in land, naval and aerial warfare. As a result each delegation came to comprise a number of technical experts, especially in military and naval matters. The official list of the personnel of the various delegations contained a total of fifty-five names. This list did not include clerical employees.

The delegation of the United States, as finally constituted, was as follows:

Members of the commission

  • John Bassett Moore, Ambassador Extraordinary, Judge of the Permanent Court of International Justice;
  • Albert Henry Washburn, Envoy Extraordinary and Minister Plenipotentiary of the United States at Vienna.

Technical advisers

  • Rear-Admiral William Ledyard Rodgers, Naval Adviser;
  • Brigadier-General William H. Johnston, Military Adviser;
  • Captain Samuel W. Bryant, Naval Adviser (Radio);
  • Colonel Frederick M. Brown, Military Adviser;
  • Colonel George S. Gibbs, Military Adviser (Radio);
  • Commander Forde A. Todd, Naval Adviser;
  • Major William C. Sherman, Military Adviser (Aviation);
  • Lieutenant Frederic W. Neilson, Naval Adviser (Aviation) and Aide to Admiral Rodgers.

Secretary to delegation

  • George R. Merrell, Jr., Third Secretary of Legation.

. . . . . . . . . . . . . .

We have [etc.]

  • John Bassett Moore
  • Albert Henry Washburn
[Enclosure—Extracts]

General Report of the Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare

The Conference on the Limitation of Armament at Washington adopted at its sixth Plenary Session on February 4, 1922, a resolution for the appointment of a Commission representing the United [Page 68] States of America, the British Empire, France, Italy and Japan to consider the following questions:

(a)
Do existing rules of international law adequately cover new methods of attack or defence resulting from the introduction or development, since The Hague Conference of 1907, of new agencies of warfare?
(b)
If not so, what changes in the existing rules ought to be adopted in consequence thereof as a part of the law of nations?

The Commission was to report its conclusions to each of the Powers represented in its membership.

The resolution also provided that those Powers should thereupon confer as to the acceptance of the report and the course to be followed to secure the consideration of its recommendations by the other civilised Powers.

By a second resolution adopted at the same session it was agreed to exclude from the jurisdiction of the Commission the rules or declarations relating to submarines and to the use of noxious gases and chemicals already adopted by the Powers in the said Conference.

With the unanimous concurrence of the Powers mentioned in the first of the above resolutions an invitation to participate in the work of the Commission was extended to and accepted by the Netherlands Government. It was also agreed that the programme of the Commission should be limited to the preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time of war.

The United States Government proposed that the Commission should meet on December 11, 1922, at The Hague, and the representatives of the six Powers mentioned above assembled on that date in the Palace of Peace. At the second meeting of the Commission the Honourable John Bassett Moore, First Delegate of the United States, was elected President of the Commission.

The Commission has prepared a set of rules for the control of radio in time of war which are contained in Part I of this Report, and a set of rules for aerial warfare which are contained in Part II of this Report.51

The Commission desires to add that it believes that if these sets of rules are approved and brought into force, it will be found expedient to make provision for their reexamination after a relatively brief term of years to see whether any revision is necessary.

[Page 69]

Part I.—Rules for the Control of Radio in Time of War

The regulation of the use of radio in time of war is not a new question. Several international conventions already contain provisions on the subject, but the ever increasing development of this means of communication has rendered it necessary that the whole matter should be reconsidered, with the object of completing and co-ordinating existing texts. This is the more important in view of the fact that several of the existing international conventions have not been ratified by all the Powers.

The articles of the existing conventions which deal directly or indirectly with radio telegraphy in time of war are as follows.

The Land War Neutrality Convention (No. V of 1907) prohibits in article 3 the erecting of radio stations by belligerents on neutral territory and also the use by belligerents of any radio station established on neutral territory before the war for purely military purposes and not previously opened for the service of public messages. Article 5 obliges the neutral Power not to allow any such proceeding by a belligerent.

Under article 8 a neutral Power is not bound to forbid or restrict the employment on behalf of belligerents of radio stations belonging to it or to companies or private individuals.

Under article 9 the neutral Power must apply to the belligerents impartially the measures taken by it under article 8 and must enforce them on private owners of radio stations.

Article 8 of the Convention for the Adaptation of the Geneva Convention to Maritime Warfare (No. X of 1907) provides that the presence of a radio installation on board a hospital ship does not of itself justify the withdrawal of the protection to which a hospital ship is entitled so long as she does not commit acts harmful to the enemy.

Under the Convention concerning Neutral Rights and Duties in Maritime Warfare (No. XIII of 1907) belligerents are forbidden, as part of the general prohibition of the use of neutral ports and waters as a base of naval operations, to erect radio stations therein, and under article 25 a neutral Power is bound to exercise such supervision as the means at its disposal permit to prevent any violation of this provision.

The unratified Declaration of London of 1909, which was signed by the Powers represented in the Naval Conference as embodying rules which corresponded in substance with the generally recognised principles of international law, specified in articles 45 and 46 certain acts in which the use of radio telegraphy might play an important part as acts of unneutral service. Under article 45 a neutral vessel was to be liable to condemnation if she was on a voyage specially [Page 70] undertaken with a view to the transmission of intelligence in the interest of the enemy. Under article 46 a neutral vessel was to be condemned and receive the same treatment as would be applicable to an enemy merchant vessel if she took a direct part in hostilities or was at the time exclusively devoted to the transmission of intelligence in the interest of the enemy. It should be borne in mind that by article 16 of the Rules for Aerial Warfare an aircraft is deemed to be engaged in hostilities if in the interests of the enemy she transmits intelligence in the course of her flight.

The following provisions have a bearing on the question of the control of radio in time of war, though the conventions relate principally to radio in time of peace. These provisions are articles 8, 9 and 17 of the International Radio Telegraphic Convention of London of 1912. Of these provisions article 8 stipulates that the working of radio telegraph stations shall be organised as far as possible in such a manner as not to disturb the service of other radio stations. Article 9 deals with the priority and prompt treatment of calls of distress. Article 17 renders applicable to radio telegraphy certain provisions of the International Telegraphic Convention of St. Petersburg of 1875. Among the provisions of the Convention of 1875 made applicable to radio telegraphy is article 7, under which the High Contracting Parties reserve to themselves the right to stop the transmission of any private telegram which appears to be dangerous to the security of the State or contrary to the laws of the country, to public order or to decency. Under article 8, each Government reserves to itself the power to interrupt, either totally or partially, the system of the international telegraphs for an indefinite period if it thinks necessary, provided that it immediately advises each of the other contracting Governments.

Regard has also been given to the terms of the Convention for the safety of life at sea, London, 1914.

With regard to the radio telegraphy conventions applicable in time of peace, it should be remembered that these have not been revised since 1912 and that it is not unlikely that a conference may before long be summoned for the purpose of effecting such revision.

The work of the Commission in framing the following rules for the control of radio in time of war has been facilitated by the preparation and submission to the Commission on behalf of the American Delegation of a draft code of rules. This draft has been used as the basis of its work by the Commission.

. . . . . . . . . . . . . .

article 1

In time of war the working of radio stations shall continue to be organised, as far as possible, in such manner as not to disturb the [Page 71] services of other radio stations. This provision does not apply as between the radio stations of opposing belligerents.

. . . . . . . . . . . . . .

article 2

Belligerent and neutral Powers may regulate or prohibit the operation of radio stations within their jurisdiction.

. . . . . . . . . . . . . .

article 3

The erection or operation by a belligerent Power or its agent of radio stations within neutral jurisdiction constitutes a violation of neutrality on the part of such belligerent as well as on the part of the neutral Power which permits the erection or operation of such stations.

. . . . . . . . . . . . . .

article 4

A neutral Power is not called upon to restrict or prohibit the use of radio stations which are located within its jurisdiction, except so far as may be necessary to prevent the transmission of information destined for a belligerent concerning military forces or military operations and except as prescribed by article 5.

All restrictive or prohibitive measures taken by a neutral Power shall be applied impartially by it to the belligerents.

. . . . . . . . . . . . . .

article 5

Belligerent mobile radio stations are bound within the jurisdiction of a neutral State to abstain from all use of their radio apparatus. Neutral Governments are bound to employ the means at their disposal to prevent such use.

. . . . . . . . . . . . . .

article 6

1.
The transmission by radio by a vessel or an aircraft, whether enemy or neutral, when on or over the high seas of military intelligence for the immediate use of a belligerent is to be deemed a hostile act and will render the vessel or aircraft liable to be fired upon.
2.
A neutral vessel or neutral aircraft which transmits when on or over the high seas information destined for a belligerent concerning military operations or military forces shall be liable to capture. The Prize Court may condemn the vessel or aircraft if it considers that the circumstances justify condemnation.
3.
Liability to capture of a neutral vessel or aircraft on account of the acts referred to in paragraphs (1) and (2) is not extinguished by the conclusion of the voyage or flight on which the vessel or aircraft was engaged at the time, but shall subsist for a period of one year after the act complained of.

. . . . . . . . . . . . . .

article 7

In case a belligerent commanding officer considers that the success of the operation in which he is engaged may be prejudiced by the presence of vessels or aircraft equipped with radio installations in the immediate vicinity of his armed forces or by the use of such installations therein, he may order neutral vessels or neutral aircraft on or over the high seas:

1.
to alter their course to such an extent as will be necessary to prevent their approaching the armed forces operating under his command; or
2.
not to make use of their radio transmitting apparatus while in the immediate vicinity of such forces.

A neutral vessel or neutral aircraft, which does not conform to such direction of which it has had notice, expose itself to the risk of being fired upon. It will also be liable to capture, and may be condemned if the Prize Court considers that the circumstances justify condemnation.

. . . . . . . . . . . . . .

article 8

Neutral mobile radio stations shall refrain from keeping any record of radio messages received from belligerent military radio stations, unless such messages are addressed to themselves.

Violation of this rule will justify the removal by the belligerent of the records of such intercepted messages.

. . . . . . . . . . . . . .

article 9

Belligerents are under obligation to comply with the provisions of international conventions in regard to distress signals and distress messages so far as their military operations permit.

Nothing in these rules shall be understood to relieve a belligerent from such obligation or to prohibit the transmission of distress signals, distress messages and messages which are indispensable to the safety of navigation.

. . . . . . . . . . . . . .

[Page 73]

article 10

The perversion of radio distress signals and distress messages prescribed by international conventions to other than their normal and legitimate purposes constitutes a violation of the laws of war and renders the perpetrator personally responsible under international law.

. . . . . . . . . . . . . .

article 11

Acts not otherwise constituting espionage are not espionage by reason of their involving violation of these rules.

. . . . . . . . . . . . . .

article 12

Radio operators incur no personal responsibility from the mere fact of carrying out the orders which they receive in the performance of their duties as operators.

. . . . . . . . . . . . . .

Part II.—Rules of Aerial Warfare

. . . . . . . . . . . . . .

Chapter I.—Applicability: Classification and Marks

. . . . . . . . . . . . . .

article 1

The rules of aerial warfare apply to all aircraft, whether lighter or heavier than air, irrespective of whether they are, or are not, capable of floating on the water.

. . . . . . . . . . . . . .

article 2

The following shall be deemed to be public aircraft:

(a)
military aircraft;
(b)
non-military aircraft exclusively employed in the public service.

All other aircraft shall be deemed to be private aircraft.

. . . . . . . . . . . . . .

article 3

A military aircraft shall bear an external mark indicating its nationality and military character.

. . . . . . . . . . . . . .

[Page 74]

article 4

A public non-military aircraft employed for customs or police purposes shall carry papers evidencing the fact that it is exclusively employed in the public service. Such an aircraft shall bear an external mark indicating its nationality and its public non-military character.

. . . . . . . . . . . . . .

article 5

Public non-military aircraft other than those employed for customs or police purposes shall in time of war bear the same external marks, and for the purposes of these rules shall be treated on the same footing, as private aircraft.

. . . . . . . . . . . . . .

article 6

Aircraft not comprised in articles 3 and 4 and deemed to be private aircraft shall carry such papers and bear such external marks as are required by the rules in force in their own country. These marks must indicate their nationality and character.

. . . . . . . . . . . . . .

article 7

The external marks required by the above articles shall be so affixed that they cannot be altered in flight. They shall be as large as is practicable and shall be visible from above, from below and from each side.

. . . . . . . . . . . . . .

article 8

. . . . . . . . . . . . . .

The external marks, prescribed by the rules in force in each State, shall be notified promptly to all other Powers.

Modifications adopted in time of peace of the rules prescribing external marks shall be notified to all other Powers before they are brought into force.

Modifications of such rules adopted at the outbreak of war or during hostilities shall be notified by each Power as soon as possible to all other Powers and at latest when they are communicated to its own fighting forces.

. . . . . . . . . . . . . .

article 9

A belligerent non-military aircraft, whether public or private, may be converted into a military aircraft, provided that the conversion [Page 75] is effected within the jurisdiction of the belligerent State to which the aircraft belongs and not on the high seas.

. . . . . . . . . . . . . .

article 10

No aircraft may possess more than one nationality.

Chapter II.—General Principles

. . . . . . . . . . . . . .

article 11

Outside the jurisdiction of any State, belligerent or neutral, all aircraft shall have full freedom of passage through the air and of alighting.

. . . . . . . . . . . . . .

article 12

In time of war any State, whether belligerent or neutral, may forbid or regulate the entrance, movement or sojourn of aircraft within its jurisdiction.

. . . . . . . . . . . . . .

Chapter III.—Belligerents

. . . . . . . . . . . . . .

article 13

Military aircraft are alone entitled to exercise belligerent rights.

. . . . . . . . . . . . . .

article 14

A military aircraft shall be under the command of a person duly commissioned or enlisted in the military service of the State; the crew must be exclusively military.

. . . . . . . . . . . . . .

article 15

Members of the crew of a military aircraft shall wear a fixed distinctive emblem of such character as to be recognisable at a distance in case they become separated from their aircraft.

. . . . . . . . . . . . . .

article 16

No aircraft other than a belligerent military aircraft shall engage in hostilities in any form.

[Page 76]

The term “hostilities” includes the transmission during flight of military intelligence for the immediate use of a belligerent.

No private aircraft, when outside the jurisdiction of its own country, shall be armed in time of war.

. . . . . . . . . . . . . .

article 17

The principles laid down in the Geneva Convention, 1906, and the Convention for the adaptation of the said Convention to Maritime War (No. X of 1907) shall apply to aerial warfare and to flying ambulances, as well as to the control over flying ambulances exercised by a belligerent commanding officer.

In order to enjoy the protection and privileges allowed to mobile medical units by the Geneva Convention, 1906, flying ambulances must bear the distinctive emblem of the Red Cross in addition to the usual distinguishing marks.

Chapter IV.—Hostilities

. . . . . . . . . . . . . .

article 18

The use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited.

This provision applies equally to States which are parties to the Declaration of St. Petersburg, 1868, and to those which are not.

article 19

The use of false external marks is forbidden.

. . . . . . . . . . . . . .

article 20

When an aircraft has been disabled, the occupants when endeavouring to escape by means of a parachute must not be attacked in the course of their descent.

. . . . . . . . . . . . . .

article 21

The use of aircraft for the purpose of disseminating propaganda shall not be treated as an illegitimate means of warfare.

Members of the crews of such aircraft must not be deprived of their rights as prisoners of war on the charge that they have committed such an act.

. . . . . . . . . . . . . .

[Page 77]

article 22

Aerial bombardment for the purpose of terrorising the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited.

. . . . . . . . . . . . . .

article 23

Aerial bombardment for the purpose of enforcing compliance with requisitions in kind or payment of contributions in money is prohibited.

. . . . . . . . . . . . . .

article 24

(1)
Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.
(2)
Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes.
(3)
The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighbourhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph 2 are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.
(4)
In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.
(5)
A belligerent State is liable to pay compensation for injuries to person or to property caused by the violation by any of its officers or forces of the provisions of this article.

. . . . . . . . . . . . . .

article 25

In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to [Page 78] public worship, art, science, or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes. Such buildings, objects and places must by day be indicated by marks visible to aircraft. The use of marks to indicate other buildings, objects, or places than those specified above is to be deemed an act of perfidy. The marks used as aforesaid shall be in the case of buildings protected under the Geneva Convention the red cross on a white ground, and in the case of other protected buildings a large rectangular panel divided diagonally into two pointed triangular portions, one black and the other white.

A belligerent who desires to secure by night the protection for the hospitals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible.

. . . . . . . . . . . . . .

article 26

The following special rules are adopted for the purpose of enabling States to obtain more efficient protection for important historic monuments situated within their territory, provided that they are willing to refrain from the use of such monuments and a surrounding zone for military purposes, and to accept a special régime for their inspection.

(1)
A State shall be entitled, if it sees fit, to establish a zone of protection round such monuments situated in its territory. Such zones shall in time of war enjoy immunity from bombardment.
(2)
The monuments round which a zone is to be established shall be notified to other Powers in peace time through the diplomatic channel; the notification shall also indicate the limits of the zones. The notification may not be withdrawn in time of war.
(3)
The zone of protection may include, in addition to the area actually occupied by the monument or group of monuments, an outer zone, not exceeding 500 metres in width, measured from the circumference of the said area.
(4)
Marks clearly visible from aircraft either by day or by night will be employed for the purpose of ensuring the identification by belligerent airmen of the limits of the zones.
(5)
The marks on the monuments themselves will be those defined in article 25. The marks employed for indicating the surrounding zones will be fixed by each State adopting the provisions of this article, and will be notified to other Powers at the same time as the monuments and zones are notified.
(6)
Any abusive use of the marks indicating the zones referred to in paragraph 5 will be regarded as an act of perfidy.
(7)
A State adopting the provisions of this article must abstain from using the monument and the surrounding zone for military purposes, or for the benefit in any way whatever of its military organisation, or from committing within such monument or zone any act with a military purpose in view.
(8)
An inspection committee consisting of three neutral representatives accredited to the State adopting the provisions of this article, or their delegates, shall be appointed for the purpose of ensuring that no violation is committed of the provisions of paragraph 7. One of the members of the committee of inspection shall be the representative (or his delegate) of the State to which has been entrusted the interests of the opposing belligerent.

. . . . . . . . . . . . . .

article 27

Any person on board a belligerent or neutral aircraft is to be deemed a spy only if acting clandestinely or on false pretences he obtains or seeks to obtain, while in the air, information within belligerent jurisdiction or in the zone of operations of a belligerent with the intention of communicating it to the hostile party.

. . . . . . . . . . . . . .

article 28

Acts of espionage committed after leaving the aircraft by members of the crew of an aircraft or by passengers transported by it are subject to the provisions of the Land Warfare Regulations.

. . . . . . . . . . . . . .

article 29

Punishment of the acts of espionage referred to in articles 27 and 28 is subject to articles 30 and 31 of the Land Warfare Regulations.

Chapter V.—Military Authority over Enemy and Neutral Aircraft and Persons on Board

. . . . . . . . . . . . . .

article 30

In case a belligerent commanding officer considers that the presence of aircraft is likely to prejudice the success of the operations in which he is engaged at the moment, he may prohibit the passing of neutral aircraft in the immediate vicinity of his forces or may [Page 80] oblige them to follow a particular route. A neutral aircraft which does not conform to such directions, of which it has had notice issued by the belligerent commanding officer, may be fired upon.

. . . . . . . . . . . . . .

article 31

In accordance with the principles of article 53 of the Land Warfare Regulations, neutral private aircraft found upon entry in the enemy’s jurisdiction by a belligerent occupying force may be requisitioned, subject to the payment of full compensation.

. . . . . . . . . . . . . .

article 32

Enemy public aircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize proceedings.

. . . . . . . . . . . . . .

article 33

Belligerent non-military aircraft, whether public or private, flying within the jurisdiction of their own State, are liable to be fired upon unless they make the nearest available landing on the approach of enemy military aircraft.

. . . . . . . . . . . . . .

article 34

Belligerent non-military aircraft, whether public or private, are liable to be fired upon, if they fly (1) within the jurisdiction of the enemy, or (2) in the immediate vicinity thereof and outside the jurisdiction of their own State, or (3) in the immediate vicinity of the military operations of the enemy by land or sea.

. . . . . . . . . . . . . .

article 35

Neutral aircraft flying within the jurisdiction of a belligerent, and warned of the approach of military aircraft of the opposing belligerent, must make the nearest available landing. Failure to do so exposes them to the risk of being fired upon.

. . . . . . . . . . . . . .

article 36

When an enemy military aircraft falls into the hands of a belligerent, the members of the crew and the passengers, if any, may be made prisoners of war.

[Page 81]

The same rule applies to the members of the crew and the passengers, if any, of an enemy public non-military aircraft, except that in the case of public non-military aircraft devoted exclusively to the transport of passengers, the passengers will be entitled to be released unless they are in the service of the enemy, or are enemy nationals fit for military service.

If an enemy private aircraft falls into the hands of a belligerent, members of the crew who are enemy nationals or who are neutral nationals in the service of the enemy, may be made prisoners of war. Neutral members of the crew, who are not in the service of the enemy, are entitled to be released if they sign a written undertaking not to serve in any enemy aircraft while hostilities last. Passengers are entitled to be released unless they are in the service of the enemy or are enemy nationals fit for military service, in which cases they may be made prisoners of war.

Release may in any case be delayed if the military interests of the belligerents so require.

The belligerent may hold as prisoners of war any member of the crew or any passenger whose service in a flight at the close of which he has been captured has been of special and active assistance to the enemy.

The names of individuals released after giving a written undertaking in accordance with the third paragraph of this article will be notified to the opposing belligerent, who must not knowingly employ them in violation of their undertaking.

. . . . . . . . . . . . . .

article 37

Members of the crew of a neutral aircraft which has been detained by a belligerent shall be released unconditionally, if they are neutral nationals and not in the service of the enemy. If they are enemy nationals or in the service of the enemy, they may be made prisoners of war.

Passengers are entitled to be released unless they are in the service of the enemy or are enemy nationals fit for military service, in which cases they may be made prisoners of war.

Release may in any case be delayed if the military interests of the belligerent so require.

The belligerent may hold as prisoners of war any member of the crew or any passenger whose service in a flight at the close of which he has been captured has been of special and active assistance to the enemy.

. . . . . . . . . . . . . .

[Page 82]

article 38

Where under the provisions of articles 36 and 37 it is provided that members of the crew or passengers may be made prisoners of war, it is to be understood that, if they are not members of the armed forces, they shall be entitled to treatment not less favourable than that accorded to prisoners of war.

Chapter VI.—Belligerent Duties towards Neutral States and Neutral Duties towards Belligerent States

. . . . . . . . . . . . . .

article 39

Belligerent aircraft are bound to respect the rights of neutral Powers and to abstain within the jurisdiction of a neutral State from the commission of any act which it is the duty of that State to prevent.

. . . . . . . . . . . . . .

article 40

Belligerent military aircraft are forbidden to enter the jurisdiction of a neutral State.

. . . . . . . . . . . . . .

article 41

Aircraft on board vessels of war, including aircraft-carriers, shall be regarded as part of such vessel.

. . . . . . . . . . . . . .

article 42

A neutral government must use the means at its disposal to prevent the entry within its jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction.

A neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.

. . . . . . . . . . . . . .

article 43

The personnel of a disabled belligerent military aircraft rescued outside neutral waters and brought into the jurisdiction of a neutral State by a neutral military aircraft and there landed shall be interned.

. . . . . . . . . . . . . .

[Page 83]

article 44

The supply in any manner, directly or indirectly, by a neutral government to a belligerent Power of aircraft, parts of aircraft, or material, supplies or munitions required for aircraft is forbidden.

. . . . . . . . . . . . . .

article 45

Subject to the provisions of article 46, a neutral Power is not bound to prevent the export or transit on behalf of a belligerent of aircraft, parts of aircraft, or material, supplies or munitions for aircraft.

. . . . . . . . . . . . . .

article 46

A neutral government is bound to use the means at its disposal:

(1)
to prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a belligerent Power, or carrying or accompanied by appliances or materials the mounting or utilisation of which would enable it to make a hostile attack, if there is reason to believe that such aircraft is destined for use against a belligerent Power;
(2)
to prevent the departure of an aircraft the crew of which includes any member of the combatant forces of a belligerent Power;
(3)
to prevent work upon an aircraft designed to prepare it to depart in contravention of the purposes of this article.

On the departure by air of any aircraft despatched by persons or companies in neutral jurisdiction to the order of a belligerent Power, the neutral government must prescribe for such aircraft a route avoiding the neighbourhood of the military operations of the opposing belligerent, and must exact whatever guarantees may be required to ensure that the aircraft follows the route prescribed.

. . . . . . . . . . . . . .

article 47

A neutral State is bound to take such steps as the means at its disposal permit to prevent within its jurisdiction aerial observation of the movements, operations or defences of one belligerent, with the intention of informing the other belligerent.

. . . . . . . . . . . . . .

This provision applies equally to a belligerent military aircraft on board a vessel of war.

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[Page 84]

article 48

The action of a neutral Power in using force or other means at its disposal in the exercise of its rights or duties under these rules cannot be regarded as a hostile act.

Chapter VII.—Visit and Search, Capture and Condemnation

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article 49

Private aircraft are liable to visit and search and to capture by belligerent military aircraft.

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article 50

Belligerent military aircraft have the right to order public non-military and private aircraft to alight in or proceed for visit and search to a suitable locality reasonably accessible.

Refusal, after warning, to obey such orders to alight or to proceed to such a locality for examination exposes an aircraft to the risk of being fired upon.

. . . . . . . . . . . . . .

article 51

Neutral public non-military aircraft, other than those which are to be treated as private aircraft, are subject only to visit for the purpose of the verification of their papers.

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article 52

Enemy private aircraft are liable to capture in all circumstances.

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article 53

A neutral private aircraft is liable to capture if it:

(a)
resists the legitimate exercise of belligerent rights;
(b)
violates a prohibition of which it has had notice issued by a belligerent commanding officer under article 30;
(c)
is engaged in unneutral service;
(d)
is armed in time of war when outside the jurisdiction of its own country;
(e)
has no external marks or uses false marks;
(f)
has no papers or insufficient or irregular papers;
(g)
is manifestly out of the line between the point of departure and the point of destination indicated in its papers and after such enquiries as the belligerent may deem necessary, no good cause is [Page 85] shown for the deviation. The aircraft, together with its crew and passengers, if any, may be detained by the belligerent, pending such enquiries.
(h)
carries, or itself constitutes, contraband of war;
(i)
is engaged in breach of a blockade duly established and effectively maintained;
(k)
has been transferred from belligerent to neutral nationality at a date and in circumstances indicating an intention of evading the consequences to which an enemy aircraft, as such, is exposed.

Provided that in each case, (except (k)), the ground for capture shall be an act carried out in the flight in which the neutral aircraft came into belligerent hands, i. e. since it left its point of departure and before it reached its point of destination.

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article 54

The papers of a private aircraft will be regarded as insufficient or irregular if they do not establish the nationality of the aircraft and indicate the names and nationality of the crew and passengers, the points of departure and destination of the flight, together with particulars of the cargo and the conditions under which it is transported. The logs must also be included.

. . . . . . . . . . . . . .

article 55

Capture of an aircraft or of goods on board an aircraft shall be made the subject of prize proceedings, in order that any neutral claim may be duly heard and determined.

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article 56

A private aircraft captured upon the ground that it has no external marks or is using false marks, or that it is armed in time of war outside the jurisdiction of its own country, is liable to condemnation.

A neutral private aircraft captured upon the ground that it has disregarded the direction of a belligerent commanding officer under article 30 is liable to condemnation, unless it can justify its presence within the prohibited zone.

In all other cases, the prize court in adjudicating upon any case of capture of an aircraft or its cargo, or of postal correspondence on board an aircraft, shall apply the same rules as would be applied to a merchant vessel or its cargo or to postal correspondence on board a merchant vessel.

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[Page 86]

article 57

Private aircraft which are found upon visit and search to be enemy aircraft may be destroyed if the belligerent commanding officer finds it necessary to do so, provided that all persons on board have first been placed in safety and all the papers of the aircraft have been preserved.

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article 58

Private aircraft which are found upon visit and search to be neutral aircraft liable to condemnation upon the ground of unneutral service, or upon the ground that they have no external marks or are bearing false marks, may be destroyed, if sending them in for adjudication would be impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged. Apart from the cases mentioned above, a neutral private aircraft must not be destroyed except in the gravest military emergency, which would not justify the officer in command in releasing it or sending it in for adjudication.

. . . . . . . . . . . . . .

article 59

Before a neutral private aircraft is destroyed, all persons on board must be placed in safety, and all the papers of the aircraft must be preserved.

A captor who has destroyed a neutral private aircraft must bring the capture before the prize court, and must first establish that he was justified in destroying it under article 58. If he fails to do this, parties interested in the aircraft or its cargo are entitled to compensation. If the capture is held to be invalid, though the act of destruction is held to have been justifiable, compensation must be paid to the parties interested in place of the restitution to which they would have been entitled.

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article 60

Where a neutral private aircraft is captured on the ground that it is carrying contraband, the captor may demand the surrender of any absolute contraband on board, or may proceed to the destruction of such absolute contraband, if sending in the aircraft for adjudication is impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged. After entering in the log book of the aircraft the delivery [Page 87] or destruction of the goods, and securing, in original or copy, the relevant papers of the aircraft, the captor must allow the neutral aircraft to continue its flight.

The provisions of the second paragraph of Article 59 will apply where absolute contraband on board a neutral private aircraft is handed over or destroyed.

Chapter VIII.—Definitions

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article 61

The term “military” throughout these rules is to be read as referring to all branches of the forces, i.e. the land forces, the naval forces and the air forces.

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article 62

Except so far as special rules are here laid down and except also so far as the provisions of Chapter VII of these Rules or international conventions indicate that maritime law and procedure are applicable, aircraft personnel engaged in hostilities come under the laws of war and neutrality applicable to land troops in virtue of the custom and practice of international law and of the various declarations and conventions to which the States concerned are parties.

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  1. French text not printed.
  2. The ellipses indicated in parts I and II which follow indicate merely the omission of the Commission’s comments on the rules; the rules themselves are complete. For complete text of the report, see Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare (The Hague, National Printing Office, 1923), p. 230; or Great Britain, Cmd. 2201, Miscellaneous No. 14 (1924).