Hull Papers
The Legal Adviser (Hackworth) to the Secretary of State 1
The Secretary: The question whether we should recognize Rome as an open city brings into relief several considerations which may or may not be of importance depending upon the state and future course of military operations. The term “open city” means an undefended place. The only effect of recognizing a place as open or undefended is to relieve it from the consequences of attack or bombardment. As early as 1874 an effort was made in the Declaration of Brussels to declare that “Fortified places are ‘alone liable to be besieged” and that “Towns, agglomerations of houses or open villages which are undefended, cannot be attacked or bombarded.” (Art. 15.) This statement of rules was based upon a previously time-honored practice of laying siege to fortified places, such as fortresses or walled cities as distinguished from unfortified or open cities which could be taken without the use of heavy artillery. The Conferences held at The Hague in 1899 and 1907 discarded the test of fortified or unfortified places and adopted instead, in view of the changed practice in methods of warfare, the test of defended or undefended places.
[Page 558]Article XXV of the Rules attached to Hague Convention No. IV of 1907, relating to Laws and Customs of War on Land, provides that—
“The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
Similar provisions are contained in Article I of Hague Convention No. IX, 1907, regarding bombardment by naval forces.
The Basic Field Manual issued by the War Department in 1940 containing the “Rules of Land Warfare” incorporates the provisions of Hague Convention No. IV, 1907, and states in paragraph 47, as follows:
“Defended place defined.—Investment, bombardment, assault, and siege have always been recognized as legitimate means of warfare, but under the foregoing rule (par. 45) their use is limited to defended places which certainly will include the following:
- a.
- A fort or fortified place.
- b.
- A town surrounded by detached forts, which is considered jointly with such forts as an indivisible whole.
- c.
- A place that is occupied by a combatant military force or through which such a force is passing. The occupation of such a place by sanitary troops alone is not sufficient to make it a defended place.”
It is to be noted that the Instructions for the Navy of the United States Governing Maritime Warfare also incorporate the corresponding provisions of Hague Convention IX of 1907.
It is to be borne in mind that Rome constitutes the most important railway center of Southwestern Italy. While I have not found this subject discussed, it stands to reason that if we should now agree that Rome should be declared an open city and treated as such, we could not later use the facilities of the city, such as railroad terminals, for the movement of troops, supplies, etc. or use air bases or industrial plants within the city, without laying ourselves open to the charge that we had breached the agreement and had rendered the city subject to bombardment by Germany. Attention is called to the fact that the War Department’s Basic Field Manual of 1940 provides in paragraph 47(c) that “A place that is occupied by a combatant military force or through which such a force is passing” will certainly be regarded as a defended place.
When Italy felt more certain of her success in the war, she did not see fit to declare Rome an open city despite the existence there of historic monuments; instead, she used the city as a center of military operations. Now that she finds herself in a precarious position, she is willing to declare it an open city—she has little to lose and much to gain. She would preserve the city, public buildings, utilities, and places of historic interest. She would prevent her enemies from using the facilities there available for war operations which would be of benefit to herself as well as to her cobelligerents.
[Page 559]We could, of course, say that by waiting until this late date, when the Italian military effort is disintegrating, the Italian Government has deprived itself of the right to have the city recognized as an undefended place, or we could state that the only conditions under which the Allied Governments will agree to refrain from bombing the war installations and facilities in the city is for Italy to agree to remove her war operations from the city and not to defend the place against occupation by the Allied forces if, and when, such occupation shall be deemed to be desirable. Subsequent occupation of the city by our military forces would subject it to bombardment by Germany, but this would be a matter between Italy and Germany. In other words, while we would agree not to bomb the place we would not agree not to occupy or use it at some future time.
The difficulties involved in our refusal to regard Home as an open city are that Italy will immediately make known the fact that she has indicated readiness to declare it as such and that we have refused the offer. Our enemies and people who have expressed an interest in the preservation of historic monuments will make capital of our refusal. They will lose sight of the fact that the move on the part of Italy is a last moment effort to save herself from the consequences of an impending defeat and to cripple as much as possible our war effort.