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Air warfare must comply with laws and customs of war, including international humanitarian law by protecting the victims of the conflict and refraining from attacks on protected persons.[1]

These restraints on aerial warfare are covered by the general laws of war, because unlike war on land and at sea—which are specifically covered by rules such as the Hague Regulations and Protocol I additional to the Geneva Conventions, which contain pertinent restrictions, prohibitions and guidelines—there are no treaties specific to aerial warfare.[1]

To be legal aerial operations must comply with the principles of humanitarian law: military necessity, distinction, and proportionality:[1] An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.

Contents

International law up to 1945

International law relating to aerial area bombardment before and during World War II rests on the treaties of 1864, 1899, 1907 which constituted the definition of most of the laws of at that time — which, despite repeated diplomatic attempts, was not updated in the immediate run up to World War II. The most relevant of these treaties are the Hague Conventions of 1907 because they were the last treaties ratified before 1939 which specify the laws of war on aerial bombardment. Of these treaties there are two which have a direct bearing on this issue of bombardment. These are "Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907"[2] and "Laws of War: Bombardment by Naval Forces in Time of War (Hague IX); October 18 1907"[3]. It is significant that there is a different treaty which should be invoked for bombardment of land by land (Hague IV) and of land by sea (Hague IX).[4] Hague IV which reaffirmed and updated Hague II (1899)[5] contains the following clauses:

Article 25: The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.
Article 26: The Commander of an attacking force, before commencing a bombardment, except in the case of an assault, should do all he can to warn the authorities.
Article 27: In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.
The besieged should indicate these buildings or places by some particular and visible signs, which should previously be notified to the assailants.[5]

In 1923 a draft convention, promoted by the United States was proposed: The Hague Rules of Air Warfare, December, 1922-February, 1923",[6] There are number of articles which would have directly affected how nations used aerial bombardment and defended against it; these are articles 18, 22 and 24. It was, however, never adopted in legally binding form.[7]

The subordination of the law of air warfare to the law of ground warfare was arguably established by the Greco-German arbitration tribunal of 1927-30. It found that the 1907 Hague Convention on "The Laws and Customs of War on Land" applied to the German attacks in Greece during World War I:[8] This concerned both Article 25 and Article 26.

Jefferson Reynolds in an article in the The U.S. Air Force Law Review argues that "if international law is not enforced, persistent violations can conceivably be adopted as customary practice, permitting conduct that was once prohibited"[9] Even if the Greco-German arbitration tribunal findings had established the rules for aerial bombardment, by 1945, the belligerents of World War II had ignored the preliminary bombardment procedures that the Greco-German arbitration tribunal had recognized.[10]

In response to a League of Nations declaration against bombardment from the air,[11] a draft convention in Amsterdam of 1938[12] would have provided specific definitions of what constituted an "undefended" town, excessive civilian casualties and appropriate warning. This draft convention makes the standard of being undefended quite high - any military units or anti-aircraft within the radius qualifies a town as defended. This convention, like the 1923 draft, was not ratified, nor even close to being ratified, when hostilities broke out in Europe. While the two conventions offer a guideline to what the belligerent powers were considering before the war, neither of these documents came to be legally binding.

After World War II the judges of the military tribunal of the Trial of German Major War Criminals at Nuremberg Trials[13] found that by 1939 the rules laid down in the 1907 Hague Convention were recognised by all civilised nations, and were regarded as declaratory of the laws and customs of war. Under this post-war decision, a country did not have to have ratified the 1907 Hague conventions in order to be bound by them.[14]

In 1963 the atomic bombings of Hiroshima and Nagasaki were the subject of a Japanese judicial review in Ryuichi Shimoda et al. v. The State. The review draws several distinctions which are pertinent to both conventional and atomic aerial bombardment. Based on international law found in Hague Convention of 1907 IV - The Laws and Customs of War on Land and IX - Bombardment by Naval Forces in Time of War, and the Hague Draft Rules of Air Warfare of 1922–1923 the Court drew a distinction between "Targeted Aerial Bombardment" and indiscriminate area bombardment, that the court called "Blind Aerial Bombardment", and also a distinction between a defended and undefended city.[15] "In principle, a defended city is a city which resists an attempt at occupation by land forces. A city even with defence installations and armed forces cannot be said to be a defended city if it is far away from the battlefield and is not in immediate danger of occupation by the enemy."[16] The court ruled that blind aerial bombardment is only permitted in the immediate vicinity of the operations of land forces and that only targeted aerial bombardment of military installations is permitted further from the front. It also ruled that, in such an event, the incidental death of civilians and the destruction of civilian property during targeted aerial bombardment was not unlawful.[17] The court acknowledged that the concept of a military objective was enlarged under conditions of total war, but stated that the distinction between the two did not disappear.[18] The court also ruled that when military targets were concentrated in a comparatively small area, and where defence installations against air raids were very strong, that when the destruction of non-military objectives is small in proportion to the large military interests, or necessity, such destruction is lawful.[17] So in the judgement of the Court, because of the immense power of the bombs, and the distance from enemy (Allied) land forces, the bombing of both Hiroshima and Nagasaki "was an illegal act of hostilities under international law as it existed at that time, as an indiscriminate bombardment of undefended cities".[19]

Not all governments and scholars of international law agree with the analysis and conclusions of the Shimoda review, because it was not based on positive international humanitarian law. Colonel Javier Guisández Gómez, at the International Institute of Humanitarian Law in San Remo, points out:

In examining these events [Anti-city strategy/blitz] in the light of international humanitarian law, it should be borne in mind that during the Second World War there was no agreement, treaty, convention or any other instrument governing the protection of the civilian population or civilian property, as the Conventions then in force dealt only with the protection of the wounded and the sick on the battlefield and in naval warfare, hospital ships, the laws and customs of war and the protection of prisoners of war.[10]

This leaves the legal status of aerial bombardment during World War II ambiguous and open to other interpretations, for example one of the reasons given by John R. Bolton, (Undersecretary of State for Arms Control and International Security (2001-2005) and U.S. Permanent Representative to the United Nations (2005)), for the USA not agreeing to be bound by the Rome Statute of the International Criminal Court is that

A fair reading of the [Rome Statute], for example, leaves the objective observer unable to answer with confidence whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II. Indeed, if anything, a straightforward reading of the language probably indicates that the court would find the United States guilty. A fortiori, these provisions seem to imply that the United States would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki. This is intolerable and unacceptable.[20]

International law since 1945

In the post war environment, a series of treaties governing the laws of war were adopted starting in 1949. These Geneva Conventions would come into force, in no small part, because of a general reaction against the practices of the Second World War. In 1977 Protocol I was adopted as an amendment to the Geneva conventions.

The International Court of Justice gave an advisory opinion in July 1996 on the Legality of the Threat Or Use Of Nuclear Weapons.[21]

Notes

  1. ^ a b c Gómez, Javier Guisández (20 June 1998). "The Law of Air Warfare". International Review of the Red Cross nº 323: 347–63. http://www.icrc.org/web/eng/siteeng0.nsf/iwpList200/42F64C9A4212EA07C1256B66005C0BF1.  
  2. ^ Laws of War: Laws and Customs of War on Land (Hague IV); October 18 1907 available from the Avalon Project at the Yale Law School, entered into force: 26 January 1910.
  3. ^ Laws of War: Bombardment by Naval Forces in Time of War (Hague IX); October 18 1907, available from the Avalon Project at the Yale Law School,
  4. ^ International Review of the Red Cross no 323 cites: Charles Rousseau, References p. 360. "the a nalogy between land and aerial bombardment".
  5. ^ a b Laws of War: Laws and Customs of War on Land (Hague II); July 29 1899, available from the Avalon Project at the Yale Law School, entry into force 4 September 1900
  6. '^ The Hague Rules of Air Warfare, 1922-12 to 1923-02, this convention was never adopted.
  7. ^ Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, from the International Committee of the Red Cross's section on international humanitarian law verified 26 February 2005
  8. ^ Laws of War: Laws and Customs of War on Land (Hague IV); October 18 1907 available from the Avalon Project at the Yale Law School, entered into force: 26 January 1910
  9. ^ Jefferson D. Reynolds. "Collateral Damage on the 21st century battlefield: Enemy exploitation of the law of armed conflict, and the struggle for a moral high ground". Air Force Law Review Volume 56, 2005(PDF) Page 57/58
  10. ^ a b Javier Guisández Gómez The Law of Air Warfare 30 June 1998 International Review of the Red Cross no 323, p.347-363
  11. ^ Protection of Civilian Populations Against Bombing From the Air in Case of War, Unanimous resolution of the League of Nations Assembly, 30 September 1938, verified 26 February 2005
  12. ^ Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938, verified 26 February 2005
  13. ^ "Judgment of the International Military Tribunal for the Trial of German Major War Criminals", proceedings of the Nuremberg Trials, available from the Avalon Project at the Yale Law School, verified 26 February 2005.
  14. ^ Judgement: The Law Relating to War Crimes and Crimes Against Humanity, available from the Avalon Project at the Yale Law School, verified 26 February 2005.
  15. ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 6
  16. ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 7
  17. ^ a b Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 10
  18. ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 9
  19. ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 8
  20. ^ John Bolton "The Risks and Weaknesses of the International Criminal Court from America's Perspective", published while he was U.S. Undersecretary of State for Arms Control and International Security, Winter 2001
  21. ^ ICJ: Legality of the threat or use of nuclear weapons

References

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