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Law in War

Published online by Cambridge University Press:  12 April 2017

Charles Cheney Hyde
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Type
Editorial Comment
Information
American Journal of International Law , Volume 36 , Issue 1 , January 1942 , pp. 83 - 87
Copyright
Copyright © American Society of International Law 1942

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References

1 "And they utterly destroyed all that was in the city, both man and woman, young and old, and ox, and sheep, and ass, with the edge of the sword. . . . "And Joshua saved Rahab the harlot alive, and her father's household, and all that she had; and she dwelleth in Israel even unto this day; because she hid the messengers, which Joshua sent to spy out Jericho." (Joshua, VI, 21 and 25.)

2 1940 edition, No. 26.

3 President Roosevelt, War Message to the Congress, Dec. 8, 1941, New York Times, Dec. 9, 1941, p. 1, where it was added: "It will be recorded that the distance of Hawaii from Japan makes it obvious that the attack was deliberately planned many days or even weeks ago. During the intervening time the Japanese Government has deliberately sought to deceive the United States by false statements and expressions of hope for continued peace." Also in this JOURNAL, Supplement, p. 22.

4 Ibid.

5 New York Herald Tribune, Dec. 26, 1941.

6 Compare situation in Paris, referred to in communication from the American Ambassador, June 13, 1940, Dept. of State Bulletin, June 15, 1940, p. 646.

7 See views of Secretary Hull, as set forth in Associated Press despatch in New York Sun, Dec. 27,1941, p. 1. Also United Press despatch, dated Manila, Dec. 29,1941, in New York Herald Tribune, Dec. 29, 1941, p. 1.

8 Associated Press despatch, New York Sun, Dec. 30,1941, p. 1. In this connection the War Department announced the receipt of the following radiogram from Gen. MacArthur: "Enemy mercilessly bombed the open city of Manila using sixty-three bombers. Damage has been severe and includes all types of civilian installations, such as churches, the cathedral, hospitals, convents, business and private dwellings. It is notable that before Manila was declared an open city and before our anti-aircraft evacuated therefrom he had abstained from attempted bombing of anything in Manila except military installations. His present actions can only be deemed completely violative of all the civilized processes of international law. At the proper time I bespeak due retaliatory measures." (Id., p. 6.) See also further report from General MacArthur, set forth in special despatch by Charles Hurd in New York Times, Jan. 8, 1942, p. 1.

9 According to War Department Rules of Land Warfare, of 1940, No. 358: "Reprisals are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from illegitimate practices. They should never be employed by individual soldiers except by direct orders of a commander, and the latter should give such orders only after careful inquiry into the alleged offense. The highest accessible military authority should be consulted unless immediate action is demanded as a matter of military necessity, but in the latter event a subordinate commander may order appropriate reprisals upon his own initiative. Hasty or ill-considered action may subsequently be found to have been wholly unjustified, subject the responsible officer himself to punishment as for a violation of the laws of war, and seriously damage his cause. On the other hand, commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of barbarous outrages."

10 According to a press release from the Department of State of Dec. 29, 1941, it was announced that there had been received through the Swiss Legation at Washington, a communication from the Japanese Government in which it protested the alleged killing of ten Japanese nationals at the time of the assault by the Japanese forces against the city of Davao on the Island of Mindanao. The Department made the following comment: "This Government had not previously heard of the alleged incident and has no reports whatsoever which would substantiate in the slighest degree the incident complained of by the Japanese Government. "For days previous to the delivery of this note, the Japanese not only had been continuing their unprovoked aggression against the Philippine Islands but they have also ruthlessly, wantonly and with a complete lack of humanity bombed the defenseless civilian population of a declared open city, have killed scores of civilians and have wounded hundreds more. "While the United States would not condone the acts of any of its officials or of any persons under its authority which contravene accepted rules of international law, and will always investigate complaints and take such proper steps as may be warranted under the facts, the record established by Japan over a number of years and in her recent activities in the Philippines clearly shows a wholly wanton disregard by Japan of international law and of principles of humanity and even of the elemental rules of decency designed to avoid needless injury to defenseless civilian populations. The objective of the Japanese in making this protest is clear, that is, to attempt to divert attention from their iniquities by making accusations against others."