The Law of War and Military Necessity Author(s): William Gerald Downey, Jr.

Reviewed work(s): Source: The American Journal of International Law, Vol. 47, No. 2 (Apr., 1953), pp. 251-262 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2194822 . Accessed: 12/01/2012 04:15
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THE LAW OF WAR AND MILITARY NECESSITY

BY
WILLIAM GERALD

DowNEY, JR.*

the lawyersand armyofficers terms"law of war" To manyinternational and "military necessity" are mutually incompatible. Many army officers consider the law of war as no more than a collectionof pious platitudes, valueless, so they think,because it has no force and effect. Some interas national lawyersregard militarynecessity the bete noireof international jurisprudence, destroyingall legal restrictionand allowing uncontrolled or brute force to rage rampant over the battlefield whereverthe military have control. It is the purpose of this writernot only to show the completecompatibility of these two concepts but to prove to his confreresin the interthat militarynecessityis not the negation,but an national legal profession integralpart, of law itself,and to show his brothersin the honorableprofessionof arms that the law of war is a binding body of rules which may be not with impunity violated on the groundof militarynecessity. I.
BASIC CONCEPTS

At the beginning it is importantfor the sake of accuracy to establish lawyerand the soldier certainbasic conceptsin orderthat the international will be speaking the same language and will arrive togetherat the same conclusions. International law is composed of the customaryand conventional rules and regulationswhich civilized nations have assented to observe in their relationswith one another.1 It is divided into two main parts: the law of peace and the law of war. Here we shall be concerned only with the law of war. The sources of internationallaw are internationalcustom as evidenced and the general by an accepted general practice,treatiesand conventions, principlesof law recognizedby civilized nations.2 Usually it is stated that in evidence of internationallaw is found in diplomatic correspondence, the opinions and decisions of internationalcourts, in the opinions and
* Major, JAGC,U. S. Army. Formerly Law, CatholicUniFellow in International and of of University.Member theBar of theDistrict Columbia and versity Georgetown herein those are Appeals. The viewsexpressed of theBar of theU. S. Courtof Military of of the of the authorand do not reflect opinions the Secretary Defense,the Secretary or of theArmy, of theJudgeAdvocateGeneralof the Army. 1 Queenv. Keyn,L. R. [1876] 2 Exch. Div. 63. 2 The S. S. Lotus,Permanent 2 Justice, Hudson,WorldCourt Courtof International 1927-1932,20, 35. See also GeorgeA. Finch,The Sourcesof ModernInterReports, nationalLaw (1937), passim.
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decisions of national courts, and in the writings of the commentators.3 This writer desires to add a new source of the evidence of international law, i.e., the opinions of the Judge Advocate General of the Army arising fromcases pertainingto the law of war.4 Internationallaw, and its componentpart, the law of war, is part of the domesticlaw of the United States,5and its rules apply to war fromwhatof ever cause war originates.6 The Constitution the United States provides that treaties are the supreme law of the land 7 and that Congress shall against the law of nations.8 have the power to defineand punish offenses In enacting the UniformCode of Military Justice the Congress provided that: shall have jurisdictionto tryany personwho General courts-martial by the law of war is subject to trial by a militarytribunal and may permittedby the law of war.9 adjudge any punishment conceptsin the law of war is that of military One of the mostimportant but there is no concept more elusive. From the idea expressed necessity, by the German writersthat militarynecessity (kriegsraison) overrodeall law,10 to the recent holdings of the Nuernberg International Military Tribunals that military necessity is governed by positive international lawyers and army officers. law,"1the question has vexed both international of military necessitywas expressed in the inThe American concept structions prepared by Franz Lieber and issued by the United States Army in 1862 in General Orders No. 100, which stated that: Military necessity,as understoodby modern civilized nations, consists in the necessityof those measures which are indispensable for securingthe ends of war, and whichare lawful accordingto the modern law and usages of war.12
3 Fred K. Nielsen, International Law Applied to Reclamations, p. 7; U. S. v. Wilhelm List et al., XI Trials of War Criminals 1235. 4 These opinions, particularly those written during the period 1941-1945 when Colonel Archibald King, a member of the American Society of International Law, was Chief of the International Law Division, JAGO, are a priceless source of the numerous international law situations which confrontedAmerican commanders during World War II. Many of these opinions are still classified and are thereforenot available, but it is hoped that they eventually will be declassified and made available for study by legal scholars. 5 The Paquete Hiabana, 175 U. S. 677; for an excellent discussion of the relationship between international law and United States domestic law, see Quincy Wright, The Enforeementof International Law Through Municipal Law in the United States (1916). 6 U. S. v. List et al., XI Trials of War Criminals 1248. 8 Art. I, Sec. 8, Clause 10. 7 Art. VI, Sec. 2. 9 Art. 18, U.C.M.J., Act of May 5, 1950, 64 Stat. 108; 50 U.S.C. 551-736. 10 See Strupp, .l6ments du droit international public universel et ame'ricain (1927), pp. 168-169. 11U. S. v. List et al., XI Trials of War Criminals 1252-1255. 12 General Orders 100, Instructions for the Governmentof the Armies of the United States in the Field, S14.

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Sixty years and two wars later, the President of the American Society of InternationalLaw, Elihu Root, in discussingmilitarynecessityin an address at the annual meetingon April 27, 1921, remarked: . . . The doctrineof kriegsraisonhas not been destroyed. It was assertedby BethmanHollweg at the beginningof the war [World War I] when he sought to justify the plain and acknowledgedviolation of internationallaw in the invasion of Belgium upon the ground of militarynecessity. The doctrine practically is that if a belligerent deems it necessaryfor the success of its militaryoperationsto violate a rule of internationallaw, the violation is permissible. As the belthe doctrinereally is ligerentis to be the sole judge of the necessity, that a belligerentmay violate the law or repudiate it or ignore it whenever that is deemed to be for its military advantage. . . . Of course, if that doctrine is to be maintained,there is no more interto national law, forthe doctrinecannotbe confined the laws specifically relatingto war on land and sea.... . . .Either the doctrine of kriegsraisonmust be abandoned definitely and finally,or there is an end of internationallaw, and in its place will be left a world without law, in which alliances of some nations to the extent of their power enforcetheir ideals of suitable conductupon othernations. At Nuernbergin recentyears it was quite evident that the doctrineof as had not been destroyed, it was used as a defensein many kriegsraison of the trials of German war criminals. In discussing this doctrine the NuernbergMilitaryTribunal said in United States v. List et al.: They [the German Generals] invoke the plea of militarynecessity, a termwhich they confusewith convenienceand strategicalinterests. Where legality and expediencyhave coincided,no fault can be found law is concerned. But wherelegalityof action insofaras international is absent, the shootingof innocent membersof the population as a of measureof reprisal is not only criminalbut it has the effect destroying the basic relationshipbetween the occupant and the population. Such a conditioncan progressively degenerateinto a reign of terror. Unlawfulreprisalsmay bringon counterreprisalsand createan endless cycle productiveof chaos and crime. To prevent a distortionof the law provides international rightintoa barbarousmethodof repression, a protectivemantle against the abuse of the right.
# # # #

It is apparent fromthe evidence of these defendantsthat they cona by sidered militarynecessity, matterto be determined them,a comof plete justification their acts. We do not concur in the view that the rules of warfare are anythingless than theypurportto be. Milior tary necessity expediencydo not justifya violationof positiverules. Internationallaw is prohibitivelaw....13
13

XI Trials of War Criminals 1252-1255.

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Because the varyingconceptsof militarynecessityhave never been fully defined and explained in legal terminology, writer, this relyingwhollyupon decided cases of the Supreme Court of the United States and of various military tribunals, has prepared the following definitionof military necessity: Militarynecessityis an urgentneed, admittingof no delay, for the taking by a commander of measures, which are indispensable for forcingas quicklyas possible the completesurrenderof the enemyby means of regulatedviolence,and whichare not forbiddenby the laws and customsof war. containsfour basic elements: It will be noted that this definition (1) an urgent need admittingof no delay for the taking by an army commanderof measures (2) which are indispensable for forcing as quickly as possible the completesurrenderof the enemyby means of (3) regulated violence,and (4) whichare not forbiddenby the laws and customsof war."4 Each elementwill be consideredat lengthbelow. II.
ELEMENTS OF MILITARY

NEcEssiry

1. An urgentneed admittingof no delay. This elementmeans that the militarysituationrequiresthat the commander take immediateaction,that there be insufficient time for any other course of action to be taken, and that the danger be immediateand impending. A recentexample of such an urgentneed admittingof no delay was the situation which faced General Eisenhower in North Africa in November, 1942. It was necessaryfor him to deal with the one person who had the authorityto command the French Forces to cease fire. That man was Darlan. In his Crusade in Europe, General Eisenhower remarkedthat: General Clark reportedthat apparentlyDarlan was the only Frenchman who could achieve cooperationfor us in NorthAfrica. I realized that the matter was one that had to be handled expeditiouslyand locally. To have referredit back to Washingtonand London would have meant inevitabledelays in prolongeddiscussions. So much time would have been consumedas to have cost much blood and bitterness and left no chance of an amicable arrangementfor absorbing the French forcesinto our own expedition.Y5 General Bradley stated in connectionwith General Eisenhower's dealing with Darlan that:
14 Many of thepositive laws of war appearingin the Hague Regulations 1907,the of of GenevaConventions 1929 and 1949 expressly due permit exceptions to military necessity. For an earlier discussionof this subject, see JosefL. Kunz, Kriegsrecht und Neutralitiitsrecht (1935), pp. 26-28. 16 DwightD. Eisenhower, Crusadein Europe,p. 106.

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Collaborationwith Darlan was fully as nauseous to Eisenhower as it was to his critics in the United States. But, as Eisenhower insisted, he had not sought Darlan as an ally, but as a convenientand useful tool.", of The questionof an urgentneed admitting no delay has been considered by the United States Supreme Court. In the case of United States v. Russell '7 the pertinentfacts were that during the Civil War threesteamboats ownedby Russell were seized by the United States under the termsof the followingor a similar order: "Imperative militarynecessityrequires the servicesof your steamersfor a briefperiod. . . ." The steamerswere employed as transportsfor carryingGovernment freight. The Court of Claims found that,at the time the steamerswere taken into the service of the United States, the agents of the United States did not intend to appropriatethemor theirservices;but theydid intendto compelthe captains and crews with such steamersto performthe services needed, and they did intend to pay a reasonable compensationfor such services. However, the Government the United States refusedto pay reasonable compensaof tion and Russell refusedto accept the lesser amount offered the United by States. In consideringthe legality of the seizure of these vessels, the Supreme Court stated that: such a taking of private property by the Government,when the of emergency the public service in time of war or impendingpublic danger is too urgent to admit of delay, is everywhereregarded as if justified, the necessityfor the use of the propertyis imperativeand immediateand the danger is impending. The Court affirmed judgmentof $41,355.00in favorof Russell. a In the case of Mitchellv. Harmony,"8 pertinent the factswere that certain propertyowned by Harmony,a sutler accompanyingthe army in the field during the war with Mexico, was seized by Colonel Mitchell under the ordersof ColonelDoniphan. The property was takennot to defendColonel Doniphan's positionnor to place his troopsin a safer one, nor to anticipate the attack of an approaching enemy,but solely to insure the success of a distantand hazardous expeditionsome time in the future. Discussing the factsof this case, the Supreme Court stated that: "It is the emergency that gives the right,and the emergency mustbe shownto exist beforethe taking " can be justified. Where urgentnecessitydoes not exist,thereis no right. The Court held that under the facts stated therewas no urgentneed, and because therewas no urgentneed, therewas no rightto seize the property. Harmonywas awarded a judgmentof $109,372.52. Two questionswill immediately arise in the minds of both lawyers and Who decides whetherunder a given set of facts an urgent army officers:
16 lt

13 Wall. 623 (1870).

A OmarN. Bradley, Soldier's Story, 32. p.

18 13

How. 115 (1851).

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need admittingof no delay exists, and how is the person making such a ? some court at a later date may not overrulehim decisionto knowwhether exercisingcommand query is that the officer The obvious answerto the first mustmake such a decision. The answer to the second query responsibility was given by the Supreme Court in the Mitchell case, supra, wherein it stated that: a A courtin reviewing case mustconsiderthe facts,as theyappeared at to the officer the time he acted. . . . And if with such information as he has a rightto rely upon, thereis reasonable groundfor believing that the danger is immediateor menacing,or the necessityurgent,he that it was is justifiedin acting upon it; and the discoveryafterwards will not make him a trespasser. . . . He must show false or erroneous, such as he had by proof the nature and character of the emergency, reasonablegrounds to believe it to be. [Italics added.] 19 Similar problemsarose beforethe various militarytribunals at Nuernberg. In a case involvingreprisals against the civil population the Military Tribunal stated that it had ". . . no hesitancyin holding that the killing of membersof the population in reprisal withoutjudicial sanction is itself unlawful." The tribunal added that the only exception to this rule is when the necessity for the reprisal requires immediate reprisal for action,but ". . . Unless the necessity immediateaction is affirmatively shown,the execution of hostages or reprisal prisonerswithouta judicial hearing is unlawful." 20 In anothercase the tribunalheld that where an accused German general was a commanderof German forces in retreat, militarynecessity,that is, an urgent need not admittingof any delay, justifiedthe devastationof certain villages. The court ruled that ". what constitutesdevastation beyondmilitarynecessityin these situations requires detailed proofof an operationaland tactical nature." 21 It would appear, then, that where the defendanturges the defense of that he militarynecessity, must show affirmatively the facts existingat the time he acted were such that he had reasonable grounds to believe they an constituted emergency. On the otherhand, if the complainantargues that therewas no urgentneed at the timeor that the acts of the defendant the burden of proof is upon complainant went beyond militarynecessity, to affirmatively show the existenceof facts of an operational and tactical nature whichwere knownto the defendantat the timehe acted, and which clearly show that the defendantknew that his acts were not based upon an urgentneed admittingof no delay, and that he knew that the danger was not immediateor pressing. 2. Measures indispensablefor forcingas quicklyas possible the complete measures: surrenderof the enemy. This elementincludes the following
19 Ibid. 180.
20 21

1253 (italics added). U. S. v. List et al., XI Trials of War Criminals

541 (italics added). Trial, XI Trials of War Criminals The High Command

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of of First, all directdestruction life of members the armed forcesand of is incidentallyunavoidable in the conduct otherpersonswhose destruction of militaryoperations.22 A good example of the application of this measure was the destructionof the railway station and the marshalingyards at Versailles, France. At that time the militaryobjective of the Allies was to preventthe Germans fromusing the railroad lines west of Paris. In the springof 1944, the marshallingyards at Versailles were bombedby the United States Air Force and, incidentallythereto,a few bombs fell short and struck a hotel apartmentalongside the yards, killing many of the tenants of the hotel. If a claim had resulted fromthis bombing,the United States would be held, in the opinion of this writer,to be without liability because the bombing constituteda legal destructionof life and propertyincidentalto a militaryoperation. Secondly, the capturingof everyarmed enemy,of every enemycivilian and of thepublic property the enemyare authorized of personof importance measures.23 The legal aspects pertainingto the capture of enemyarmed persons are covered in the Geneva Prisonersof War Conventionsof 1929 and 1949,24 and the question of captured propertyhas already been considered at lengthby this writer.25 The capturingof everyenemycivilian has been an accepted measure of war since the dawn person of importance of history. Caesar tells of the capture of Vercingetorix, and the Saracens still sing the saga of the capture of King Richard. In April, 1945, the Joint Chiefs of Staffissued a directiveto the Commander-in-Chief the of United States Forces of Occupation in Germany, which instructedGeneral Eisenhoweras follows: 8 a. You will search out, arrest,and hold, pending receipt by you of furtherinstructions to their disposition,Adolf Hitler, his chief as Nazi associates,otherwar criminalsand all personswho have participated in planning or carryingout Nazi enterprisesinvolvingor resulting in atrocitiesor war crimes. to b. All personswho,if permitted remainat large, would endanger of the accomplishment your objectives,will also be arrested and held in custody until trial by an appropriate semi-judicial body to be

established you....26 by

An interesting case concerningthe provisionsof this directivearose in 1949. A German civilian, who had held an importantposition in the of Germanmilitarygovernment Poland, was arrestedin Germanyin 1945 and held under paragraph 8 b, supra, until he was cleared by a denazificaS. v. List et al., loc. cit., 1253. 23 Ibid. Department of Army Pamphlet 20-150. The 1949 Conventions have not been ratifiedby the United States. 25 Downey, "Captured Enemy Property: Booty of War and Seized Enemy Property," this JOURNAL, Vol. 44 (1950), p. 488. 26 Par. 8, JCS 1067, Germany 1947-49, The Story in Documents (Dept. of State Publication 3556), p. 21.
22 U. 24

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tion court some time later. After his release he filed a claim against the United States for damages resulting from an alleged illegal arrest and board, basing his claim upon the findingof a denazification incarceration, "the appropriate semi-judicial body," which was organized under the provisionsof the above directiveand subsequent theater directives. The that there was no basis for the Judge Advocate General held, in effect, claim, as the Germancivilian was a person whose arrestwas authorizedby the laws of war as expressedin the directiveof the Joint Chiefs of Staff.27 Thirdly, the destructionof property,the obstructionof ways of communication,and the withholdingof means of life or livelihood fromthe enemyare authorizedmeasures.28 Germanyand Japan abound with stark examples of the destructionof propertyby aerial bombing and ground artillery. The question of liability for the destructionof propertyhas been consideredby various claims commissions. In the Hardman case 29 of for claimed compensation the destruction Hardthe British Government man's personal propertyby the United States militaryauthoritiesin Cuba to was destroyed preventthespread of disease among in 1898. The property War. The questionto be decided the soldiersduringthe Spanish-American of was whether, under the circumstances, destruction the by the arbitrators was a necessityof war and an act of war. The evidencesubthe property mittedby the United States showedthat the measurestaken to preventthe spread of disease were advisable and necessary. The British Government did not contest the truth of this evidence. In denying the award, the arbitral tribunal stated: In law, an act of war is an act of defenseor attack against the enemy and a necessity war is an act whichis made necessaryby the defense of or attack and assumes the characterof vis major. In the present case, the necessity of war was the occupation of Siboney,and that occupationwhichis not criticizedin any way by the British Government, involved the necessity,according to the medical authoritiesabove referredto, of taking the said sanitary measures, of i.e., the destruction the houses and theircontents. In otherwords,the presenceof the United States troopsat Siboney was a necessityof war and the destructionrequired for their safety a was consequently necessityof war. the of In the opinion of this tribunal,therefore, destruction Hardwas a necessityof war, and, accordingto the man's personal property it principle accepted by the two Governments, does not give rise to a legal rightof compensation.

Limitedv. UnitedStates. It arose in the Court JuraguaIron Company,

of Claims as an action to recover the value of certain propertyin Cuba
27 29

Another case involvingdestructionof propertyas a measure of war is

Claimof Dr. F. K., MSS Opinion, dated Sept. 10, 1949,JAGO. 6 Hackworth, Digest of International Law 176.
S. v. List et al., loc. cit., 1253-1254.

28 U.

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destroyedduring the Spanish-American War by order of the commanding officer the United States troops which were conductingmilitaryoperaof tions in the locality of the property. The Juragua Iron Company was a Pennsylvania corporationand had its principal place of business in Pennsylvania, but it owned certain real and personal propertyin Cuba. In July, 1898, General Miles, CommandingGeneral of United States forces in Cuba, because of the prevalenceof yellowfever,orderedthe destruction of the plaintiff'sproperty. The Court of Claims held that the United States was no pecuniarily liable,30 and the Supreme Court affirmed,"' stating: . . .The plaintiff, although an American corporation,doing business in Cuba, was, during the war with Spain, to be deemedan enemy to the United States with respectof its propertyfound and then used in that country,and such property could be regarded as enemy's liable to be seized and confiscated the United States in the property, by progressof the war then being prosecuted; indeed, subject under the laws of war to be destroyedwhenever,in the conduct of military operations, destruction its was necessaryfor the safetyof our troopsor to weaken the power of the enemy. . . .It is true that the army,under General Miles, was under a duty to observe the rules governingthe conduct of independent nations when engaged in war-a duty for the proper performanceof which the United States may have been responsiblein its political capacity to the enemygovernment. If what was done was in conformity those to rules-as upon the facts found we must assume that it was-then the owner of the propertyhas no claim of any kind for compensationor damages; for, in such a case, the CommandingGeneral had as much rightto destroythe propertyin questionif the healthand safetyof his troopsrequiredthat to be done,as he would have had if at the timethe propertyhad been occupied and was being used by the armed troops of the enemyfor hostilepurposes. Concerningthe question of the destructionof ways of communication, it will be recalled that one of General Yamashita's defenseswas that the United States armed forces had so completelydestroyedhis channels of communication and obstructedhis channels of traffic the Philippines in that he was totallyunable to controlthe forcesunder his command.32 The question of the legality of withholding means of livelihood and of life fromthe enemywas consideredby the NuernbergMilitary Tribunal in the case of United States v. Von Leeb. The pertinentfacts were that in 1941 Leningrad was encircledand besieged. Supplies in the city were rapidly being consumed,and, to conservesuch supplies, the Russian Commander orderedthe evacuation of civilians. Von Leeb, the German commander,issued an order authorizingthe army artilleryto fireon Russian civilians in order to preventthemfromleaving Leningrad and fleeinginto
30 32

42 Courtof Claims99, 114. 31 212 U. S. 297, 306, 308. See In re Yamashita, U. S. 1, 32 et seq. 327

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the Germanlines. The order stated that artillerywas to be used "to prevent any such attemptat the greatestpossible distance fromour own lines if by openingfireas earlyas possible,so thatthe infantry, possible,is spared shootingon civilians." Afterthe war Marshal von Leeb was chargedwith a violation of the law of war for having issued an unlawful order. The Military Tribunal, in consideringwhetherthis order was illegal, stated that: . . .the cutting offof every source of sustenance from without is deemed legitimate. It is said that if the commanderof a besieged in place expelled the non-combatants, order to lessen the number of those who consume his stock of provisions,it is lawful, though an extrememeasure, to drive them back so as to hasten the surrender. attachedto the above order The Tribunalheld that therewas no criminality issued by Von Leeb.33 Fourthly, the appropriation of whatever the enemy's country affords necessaryforthe subsistence and safetyof the armyis an acceptedmeasure. An historicalexample of the application of this rule was Sherman's march fromhis base fromAtlanta to Savannah in 1864. Shermancut himselfoff of supplies and during the march his armylived offthe country. During but the Nuernthe trials at Nuernberg, the questionwas again considered, berg Military Tribunal held that the seizure of whatever the enemy's countryafforded, which was not justifiedfor the subsistenceof the army, was criminaland the fact that such seizures were conductednot by individuals but by the army and by the state does not remove the taint of criminality.34 Fifthly,the use of deceptionnot involvinga breach of faith, is an accepted measure. A breach of good faith which is either positively exor pressed in internationalconventions which exists under the customary law of war is forbidden. A good example of the use of deceptionwhich involved a breach of good faith is one that happened in this writer's presence during the Battle of Metz in 1944. At that time the German forcesheld several fortssouth and east of Metz. One Novembermorning, just as our attack was gettingunder way, a German unit of some 20 men came out of one of the fortsunder a white flag. The Americanbattalion commandergave the order to cease fire,and the Germansmarched under of the protection the white flag down the road toward our lines. As they came abreast of a large bunkertheypulled down theirwhiteflag,ran into the bunkerand immediately opened fireon our positions. 3. Regulated Violence. The words "regulated violence" may appear at firstglance to be self-contradictory. However, the meaning of the expressionwill be clear after it is definedand illustrated. Regulated violence is generally considered as that violence directed or
33

563. XI Trials of War Criminals

34

Ibid.

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authorizedby superior authorityfor the purpose of disabling the greatest of possible numberof the enemy,but the militaryeffect which is not disis it to proportionate the suffering entails. This definition a compromise militaryand humanitarianconceptsof the purpose betweenthe conflicting of of war. Under this definition regulatedviolencethe paramountmilitary interestis to kill or disable the greatestpossible numberof the enemyand the subservienthumanitarianinterestis to relieve the individual soldier fromall unnecessarysuffering. The question is how best to balance these interestsand the problemmust be answered,each time a new conflicting weapon or new projectile is developed, under the test established by Spaight: "Does the new weapon or the new projectile disable so many of it the enemy that the military end thus gained condones the suffering "X36 causes? of and provocativeillustration the application of the defiAn interesting of nitionof regulatedviolencearises in a consideration the question of the use of the explosive bullet. An ordinary 30-caliber bullet fired from a riflehas for its military purpose the killing or wounding of the enemy soldier at whomit is aimed. It accomplishesthat purpose when it causes to caused by that bullet is not disproportionate a casualty. The suffering such a militarypurpose. However, a 30-caliber explosive bullet, having which explodes upon penetrathe same purpose and the same lethal effect, tion of the body and causes an agonizing and perhaps incurable wound, the military of aggravates the suffering the recipientwithoutfurthering purpose of the projectile. A type of explosive bullet was used by the Confederateforcesat Vicksburgwith the idea that the bulletswould burst of over the Union trenchesand have the effect shrapnel. In his Memoirs, General Grant discussed the use of these bullets: a I do not remember single case wherea man was injured by a piece of one of theseshells. When theyhit and the ball exploded,the wound was terrible. In thesecases a solid ball would have hit as well. Their without use is barbarous, because they produced increased suffering advantage to those using them.38 any corresponding In 1868 the use of such bullets was prohibitedby the Declaration of St. Petersburg,and in 1907 by Article 23 (e) of the Hague Regulations.37 Field Manual 27-10, The Rules of Land. Warfare, provides in relation to Article 23 (e) that: The foregoingprohibitionis not intended to apply to the use of explosives contained in artillery projectiles,mines, aerial torpedoes, or hand grenades,but it does apply to the use of lances with barbed bullets,and projectilesfilledwith glass, to the heads, irregular-shaped use of any substance on bullets that would tend unnecessarilyto in35 37

p. Memoirs, 316. 38 U. S. Grant, Spaight,War Rightson Land, p. 76. IHagueConvention 36 Stat. 2277; U. S. TreatySeries,No. 539. IV,

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flamea wound inflicted them,and to the scoringof the surface or by filingoffthe ends of the hard cases of bullets.38 Article 22 of the Hague Regulationsprovidesthat the rightof belligerents to adopt means of injuring the enemy is not unlimited,and Article 23 specificallyprohibits,among other acts, the use of poison or poisoned weapons, the treacherouskilling or wounding of enemy personnel, the and the killing of an enemywho has laid down his arms or surrendered, statementthat quarter will not be given. These are positive laws of war which contain absolute prohibitions. Where such positive rules apply, no plea of militarynecessityis legally permissible. For example,in discussingthe application of the rule against the use of poison, Field Manual 27-10 states: This prohibitionextends to the use of means calculated to spread contagious diseases; but does not prohibit measures being taken to dry up springs,to divert rivers and aqueducts fromtheir courses,or to contaminatesources of water by placing dead animals thereinor otherwise, providedsuch contamination evidentor the enemyis inis formedthereof....39 As an example,the prohibition against the spread of contagiousdiseases is if absolute. Therefore, a belligerentshould spread typhusgerms over an enemytroop concentration, would be a violationof the positivelaw and it no plea of militarynecessitycould justify the act. On the otherhand several of the laws of war specifically contain exceptions on the ground of militarynecessity. Article 23 g of the regulations annexed to Hague ConventionIV providesthat the destruction seizure or of enemyproperty, "unless such destruction seizure be imperatively or demanded by the necessitiesof war," is especially forbidden. It is apparent that where a commander, acting bona fide,decides that the destruction of of certain propertyis necessaryfor the accomplishment his mission,e.g., fire the destruction artillery of a church, towerof whichis being used the by as an observationpost by an enemy,the positive laws of war permitsuch or action whether not the need is urgentor admitsof no delay. In conclusionit can be stated as a matterof law that militarynecessity cannot justifyan act by a militarycommander which disregardsa positive rule of law or whichgoes beyond the expresslimitations a qualifiedrule of a of law. Such acts always constitute violationof the law of war.
38

4. Measureswhichare not forbidden the laws and customs war by of

Field Manual 27-10, par. 34.

39

Ibid., par. 28.