Aerial bombardment and international law
Air warfare must comply with
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
To be legal, aerial operations must comply with the principles of humanitarian law:
International law up to 1945
Before and during World War II (1939–1945), international law relating to aerial bombardment rested on the treaties of 1864, 1899, and 1907, which constituted the definition of most of the laws of war 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 is the
Article 25: The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
Article 26: The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.
Article 27: In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.[2]
Although the 1907 Hague Conventions IV – The Laws and Customs of War on Land and IX – Bombardment by Naval Forces in Time of War prohibited the bombardment of undefended places, there was no international prohibition against indiscriminate bombardment of non-combatants in defended places, a shortcoming in the rules that was greatly exacerbated by aerial bombardment.
The attendees of the
With the rise of aerial warfare, non-combatants became extremely vulnerable and inevitably became collateral targets in such warfare – potentially on a much larger scale than previously.[8][9]
The Greco-German arbitration tribunal of 1927–1930 arguably established the subordination of the law of air warfare to the law of ground warfare. 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:[14] This concerned both Article 25 and Article 26.
Jefferson Reynolds in an article in
The German bombings of Guernica and Durango in Spain in 1937 during the Spanish Civil War of 1936–1939 and the Japanese aerial attacks on crowded Chinese cities during the Second Sino-Japanese War in 1937–38 attracted worldwide condemnation, prompting the League of Nations to pass a resolution[17] that called for the protection of civilian populations against bombardment from the air.[18][19] In response to the resolution passed by the League of Nations,[17] a draft convention in Amsterdam of 1938[20] 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 ratification – when hostilities broke out in Europe in 1939. 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.
At the start of World War II in 1939, following an appeal by
After World War II, the massive destruction of non-combatant targets inflicted during the war prompted the victorious
In 1963 the atomic bombings of Hiroshima and Nagasaki became the subject of a Japanese
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
prisoners of war.[16]
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.[30]
International law since 1945
This article needs to be updated.(December 2020) |
In the post war environment, a series of treaties governing the
In 1977,
However, Protocol I also states that locating military objectives near civilians "shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians." (Article 51, Para 8)[36]
The
See also
- Aerial bombing of cities
- Area bombardment
- Carpet bombing
- Civilian casualties of strategic bombing
- Roerich Pact
- Strategic bombing
- Tactical bombing
- Terror bombing
Notes
- ^ doi:10.1017/S0020860400091075. Archived from the originalon 25 April 2013.
- ^ a b Laws of War: Laws and Customs of War on Land (Hague IV); 18 October 1907 available from the Avalon Project at the Yale Law School, entered into force: 26 January 1910.
- ^ 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,
- ^ International Review of the Red Cross no 323 cites: Charles Rousseau, References p. 360. "the analogy between land and aerial bombardment".
- ^ 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
- ^ Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons. The Hague, 18 October 1907.
- ^
"Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons. The Hague, 18 October 1907". Treaties, States Parties and Commentaries. International Cimmittee of the Red Cross. Retrieved 23 February 2021.
This Conference never having met, the Declaration of 1907 is still formally in force today. [...] Of the great Powers only Great Britain and the United States ratified the Declaration.
- ^ International Dimensions of Humanitarian Law, Volume 1. Brill Publishers. 1988. p. 115.
- ISBN 0-7923-2245-2.
- ^ Tucker C. Spencer, Priscilla Mary Roberts. "World War I: A Student Encyclopedia". page 45. Routledge.
- '^ The Hague Rules of Air Warfare, 1922–12 to 1923–02, this convention was never adopted.
- ^ 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
- ISBN 978-92-3-102371-2.
- ^ 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
- (PDF) Page 57/58.
- ^ a b Javier Guisández Gómez The Law of Air Warfare 30 June 1998 International Review of the Red Cross no 323, p. 347–363
- ^ a b 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
- ISBN 978-0-521-86797-9.
- ISBN 0-7190-4785-4.
- ^ Draft Convention for the Protection of Civilian Populations Against New Engines of War. Amsterdam, 1938, verified 26 February 2005
- ISBN 978-0-87013-940-6.
- ISBN 978-0-521-17349-0.
- ISBN 978-0-8135-4901-9.
- ISBN 0-7923-2584-2.
- ^ The Japanese Annual of International Law: Volume 36. International Law Association of Japan. 1994. p. 147.
- ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 6
- ^ a b Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 10
- ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 9
- ^ Wikisource:Ryuichi Shimoda et al. v. The State I. Evaluation of the act of bombing according to international law: Paragraph 8.
- ^ John Bolton: "The Risks and Weaknesses of the International Criminal Court from America's Perspective Archived 3 June 2016 at the Wayback Machine", published while he was U.S. Undersecretary of State for Arms Control and International Security, Winter 2001.
- ISBN 978-0-8476-7116-8.
- ISBN 978-1-56432-523-5.
- ISBN 978-0-7432-5219-5.
- ISBN 0-7614-7482-X.
- ISBN 90-77596-14-3.
- ^ "Treaties, States parties, and Commentaries – Additional Protocol (I) to the Geneva Conventions, 1977 – 51 – Protection of the civilian population".
- ^ ICJ: Legality of the threat or use of nuclear weapons Archived 22 May 2014 at the Wayback Machine
References
- Francisco Javier Guisández Gómez, (a colonel in the Spanish Air Force) ICRC: "The Law of Air Warfare" International Review of the Red Cross no 323, p. 347–363
- Joan T. Phillips. List of documents and web links relating to the law of armed conflict in air and space operations, May 2006. Bibliographer, Muir S. Fairchild Research Information Center Maxwell (United States) Air Force Base, Alabama.
- 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) pp. 4–108
- Charles Rousseau, Le droit des conflits armés Editions Pedone, Paris, (1983)
Further reading
- ICRC (27 June 2012), Commentary on the Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons. The Hague, 18 October 1907., retrieved 25 October 2016 – Commentary on the early conventions including details not yet in this article.