Law of Aerial Warfare

The law pertaining to the use of aircraft in war, notably that concerning aerial bombardment, is the most primitive of these three bodies of law. There is no general multilateral agreement relating specifically to aerial warfare, and it is possible to do no more than lay down certain general principles by analogy to outmoded rules governing bombardment by land and naval forces.

The Hague Regulations of 1907 forbid the destruction of the enemy’s property, “unless such destruction... be imperatively demanded by the necessities of war” and “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended... ”.[1] Similar provisions are found in Convention No. IX of The Hague of 1907 concerning Bombardment by Naval Forces in Time of War,[2] accompanied by a short statement of what types of military objectives, such as “workshops or plants which could be utilized for the needs of the hostile fleet or army”, may be bombarded.[3] The Geneva Wounded and Sick Convention of 1949 and the Civilians Convention stipulate that hospitals are not to be attacked or made “the object of attack”.[4]

There has been no lack of attempts in the past to frame rules to govern aerial warfare. The Commission of Jurists at The Hague drew up an elaborate set of Rules of Aerial Warfare in 1922,[5] the most important of which provided that “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”. “Aerial bombardment”, the Rules went on to say, “is legitimate only when directed at a military objective... ”.[6] While the substance of these principles was publicly reiterated on a number of occasions before the Second World War, they were put at naught by the employment of aerial bombardment against cities with devastating effect on the civilian population. “Saturation”, “target-area”, or “pattern” bombing, as it has been variously called, was justified on the ground that a blanket of bombs had to be laid down on an area in order to secure the destruction of military objectives, which were broadly interpreted to include the factories, public utilities and means of communication mobilized in total war. Even the dwelling of civilians who manned these facilities became the target of attack. With the firebombing of Dresden and of Tokyo and the dropping of the first two atomic bombs on Hiroshima and Nagasaki, the capacity for destruction of aerial bombardment had become so overwhelming that it was futile to think in terms of a distinction between military and civilian objectives. Nuclear weapons in particular made a mockery of the nice distinctions of the law.

Even if attacks, using the most modern technology, are made on precisely defined targets, mistaken intelligence estimates, errors of men or of machines, human responses to crisis situations, passive and active defensive measures taken by the enemy and the necessity of dropping more than one bomb to destroy a military objective can lead to the unintended destruction of civilians and their property. Even if the vast confusion of war could be overcome, there would still be the problem that there is no general agreement on what constitutes a military objective and which civilian objectives are immune from attack. About the only thing that is clear is that civilians should not be made the object of attack. The wrong lies in the deliberate dropping of bombs on civilians, not in the dropping of a bomb that falls upon civilians. How, under the conditions of warfare, can a hypothetical adjudicator of guilt (especially of the opposing belligerent) determine whether the attack was intentional or unintentional? Finely spun legal rules turning on notions of proportionality or the taking of precautions bear no relationship to the conditions under which war is carried on.

The years since the Second World War have not been lacking in efforts to provide law for the protection of the civilian population from aerial bombardment. The success of the International Committee of the Red Cross in inspiring the Geneva Civilians Convention of 1949, which extended its protection over civilians in the hands of the enemy, led to an effort to formulate “Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War”. These Rules, drafted by the I.C.R.C. in 195 6,[7] were submitted to the International Red Cross Conference in New Delhi in the following year. Although the idea of the Rules was approved by the Conference,[8] the actual Rules did not find favour with governments and the hoped-for convention based on the Rules never emerged. The Institute of International Law has also made its contribution in the form of a resolution defining military objectives, forbidding attacks on the civilian population as such or any action designed to terrorize the civilian population and prohibiting the use of all weapons which indiscriminately affect military and nonmilitary objectives.[9]

A determined attempt was made during the first decade ofthe United Nations to secure a complete prohibition on the production and use of nuclear weapons. With the emergence of more than one nuclear power and the beginning of a movement toward effective measures of arms control, that demand ceased to be heard from governments. Those international lawyers who maintained that the use of nuclear weapons was in violation of customary international law[10] put their case on the basis of the provisions of the Hague Regulations regarding poison and poisonous weapons,[11] the law regarding the illegality of attacks against the civilian population and the prohibition of chemical warfare in the Geneva Protocol of 1925. The prospect of the use of nuclear weapons was so horrifying and the existing law so flimsy a defence against them that the problem was ultimately seen by government and scholars to be one of disarmament and arms control.

  • [1] Art. 25.
  • [2] Signed Oct. 18, 1907, arts. 1, 5, and 6, Martens, Nouveau Recueil General, 3d ser., vol. 3,p. 604.
  • [3] Art. 2.
  • [4] Geneva Wounded and Sick Convention, art. 19; Geneva Civilians Convention, art. 18.
  • [5] Dec. 11,1922, General Report of the Commission of Jurists at The Hague, American Journal ofInternational Law, vol. 17 Supp. (1923), p. 245.
  • [6] Arts. 22 and 24, para. 1.
  • [7] Conference of Government Experts on the Reaffirmation and Development of InternationalHumanitarian Law Applicable in Armed Conflicts, 1971, vol. 3 (1971), p. 49.
  • [8] I.C.R.C., Annual Report, 1957, pp. 83—84.
  • [9] Annuaire de l'Institut de Droit International, vol. 53 (II) (1969), p. 358.
  • [10] See, e.g. Schwarzenberger, The Legality of Nuclear Weapons (1958), pp. 26—49.
  • [11] Art. 23, para. a.
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