The Law of War Week V Feb 7, 2007 Air Warfare

Overview of Week V General law of war principles Air warfare rules Application of principles and rules A look at next week

General Law of War Principles Necessity Distinction/Discrimination Proportionality Humanity

Law of War Principles: Necessity Lieber Code: Military necessity... those measures indispensable for for securing the ends of the war, and which are lawful according to the modern law... –Direct destruction of armed enemy’s life and limb –Destruction of others “incidentally unavoidable” Hague Land Warfare Rules: cannot “destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Necessity is a threshold condition for use of force –Must be applied in conjunction with other principles

Law of War Principles: Distinction Attacks may only be directed at military objects –Civilian population/objects may not be attacked –Attacks to spread terror are prohibited AP I art. 51 defines indiscriminate attacks: –Not directed at specific military objective, or –Means/method that cannot be directed at specific objective, or –Means/methods effects of which cannot be limited Examples of indiscriminate attacks in AP I are: –Targeting separate objectives as one despite civilian presence –Attack causing incidental civilian loss excessive to military value Adversary can’t use civilians to shield from attack

Law of War Principles: Proportionality Methodology to evaluate distinction Anticipated incidental loss of life/property damage may not be excessive relative to military advantage to be gained Balancing test

Law of War Principles: Humanity Minimalist view: –Must avoid infliction of unnecessary suffering E.g., can’t use prohibited weapons More expansive view: –Must treat civilians/persons hors de combat humanely No discrimination based on race, religion, sex, wealth, etc. No violence to life or person, including cruelty or torture No outrages upon personal dignity No punishment without trial by regularly constituted court No hostage taking

The Law of War Applied? General Explains Decision to Refrain From Targeting Taliban Funeral Armed Forces Press Service WASHINGTON, Sept. 21, 2006 – Much has been made in recent days of an aerial photograph taken in Afghanistan that reportedly shows hundreds of Taliban fighters attending a funeral and the decision to refrain from wiping out the gathering militarily... But it’s what the picture didn’t show that ultimately led to the decision not to strike, [LTG Karl] Eikenberry said. Just outside the frame, he said, was an Afghan village. And it also was reasonable for the commander to conclude from that village that there were probably innocents... noncombatants -- that had moved to participate in that funeral,”....

Law of War Analysis Necessity Discrimination Proportionality Humanity

Law of War v. Rules of Engagement Attack prohibited w/in cemetery? Legal v. political distinctions Law of war as hand-tying? - Balance against practical advantages - Many critics believe too permissive

Overview of Week V General law of war principles Air warfare rules Application of principles and rules A look at next week

Early Strategic Warfare Hague declarations 1899/1907 banned dropping explosives from balloons Germany not party, 159 Zeppelin attacks on UK –559 fatalities –$7,500,000 in property damage Required explosive and incendiary bullets to counter

WWI Bomber Aircraft Germany initiated bomber attacks perceiving Zeppelins’ results as only limited success Psychological effect more significant than military Britain retaliated with attacks on German cities Limited discrimination in targeting on all sides

1923 Hague Rules - General Public/military/private aircraft distinctions –Very similar to legal treatment of ships –Public but non-military aircraft treated as civilian –Military aircraft requirements just like warships Person in command Aircraft clearly marked Distinctive emblem for crew Issues of transit addressed like Law of the Sea –Free passage/landing outside national territory –But NO right to fly in neutral or hostile airspace

1923 Hague Rules - Humanitarian Extended Geneva provisions to flying ambulances –1906 Geneva Convention –1907 Hague Conv adapted to maritime warfare Aircrew escaping by parachute protected from attack

1923 Hague Rules - Bombardment Principles of necessity and discrimination applied Attacks limited to military objectives –Actual military forces or facilities –Defense industries –Transport/communications being used for military Attacks on cities/civilian dwellings banned –Battlefield exception

Hague Rules – Protected Property Special protections for: –Worship facilities –Buildings dedicated to art, science, charitable purposes –Historic monuments –Hospitals Must be marked Protective zones

1923 Hague Rules - Neutrality Military aircraft barred from neutral airspace Neutral obligated to enforce sovereignty Must intern belligerent aircraft/airrcrews –Must prevent departure of belligerents Issue during Desert Storm

1923 Hague Rules – “Capture” Private aircraft liable to visit & search/capture Can fire on aircraft refusing orders Neutral can be captured in specified cases, incl: –Engaging in unneutral service –False papers/marks –Out of proper area –Carrying contraband Prize proceedings

1923 Hague Rules–Enemy Civil Acft Can be engaged in their own territory –If they fail to land at approach of belligerent acft Can be engaged elsewhere –In vicinity of enemy land or sea operations –If they fly into enemy territory –Near but outside national territory

1954 Hague Cultural Property Convention Defines cultural property: –Includes historic, artistic, literary, scientific objects –Facilities for their preservation or exhibition Occupying force must safeguard, can’t pillage Possessor must take steps to safeguard Enemy must respect

Additional Geneva Protocol I Requires distinction, civilians protected –Includes objects indispensable to survival Military objectives defined –Nature, location, purpose or use help war effort –Destruction/neutralization offers definite military advantage Installations containing dangerous forces protected –Dams, dykes, nuclear generating stations Attacks on non-defended localities banned –Must not support military operations Operations in demilitarized zones banned

Additional Geneva Protocol I Mandatory attack precautions: –Do everything feasible to verify targets not civilian –Choose means/methods to minimize civilian loss –Cancel attack if assumptions incorrect Give advance warning of attack affecting civilians –“unless circumstances do not permit” Select objective posing least risk to civilians Nation has responsibilities towards own civilians –Siting of military objectives –Civilian Relocation away from military objectives

Status of Geneva Protocol I for U.S.? Signed, but not ratified “Terrorist” concern Official document: GP II letter of transmittal Unofficial: 1986 Law of War Working Group statement & DOS comments

Overview of Week V General law of war principles Air warfare rules Application of principles and rules A look at next week

Linebacker and the Law of War Which President did you like better? –Johnson or Nixon? How did military and political objectives relate in the conduct of the air campaigns? –How did the law of war play in this? How did technology affect law of war compliance/achievement of military objectives? What is the law about economic targets? GP I, Art. 52, § 2

Dresden Bombing Feb Historic city in eastern Germany Crowded with refugees from Russian advance Railroad junctions, some dispersed industry Initial attack aimpoint stadium in city center –Multiple approach axis to maximize area bombed –High explosives followed by incendiaries Restrike three hours later –Timed to allow civil defense response U.S. daylight raid next day

Law of War Principles Applied Necessity Distinction/Discrimination Proportionality Humanity “The Western allies didn’t abound with any special humanity, it’s incomprehensible to me to this day why Dresden was destroyed. There was no military reason for it.” - Vladimir Putin, May 2005

1923 Hague Rules Applied Military Object? In proximity to operations? Discrimination? Protected objects?

Atomic Bombing of Japan Hiroshima Aug 6, 1945 –4 mi flattened, 60-70K killed, 50K injured –Large industrial plants largely untouched –Railroads through city restored Aug 8 –Equivalent damage to 220 B-29 sorties Nagasaki Aug 9, 1945 –40K killed, 40K injured –Heavy industry seriously damaged/destroyed –Equivalent damage to 125 B-29 sorties Obviated need for invasion? –2 million troops in islands –9K Kamikaze acft (5K pilots)

Law of War Principles Applied Necessity Distinction/Discrimination Proportionality Humanity It is the Survey's opinion that certainly prior to 31 December 1945, and in all probability prior to 1 November 1945, Japan would have surrendered even if the atomic bombs had not been dropped... - United States Strategic Bombing Survey

Overview of Week V General law of war principles Air warfare rules Application of principles and rules A look at next week

Looking Ahead – Week VI Focus on law of land warfare and rules of engagement –Specific legal rules in Hague conventions, binding as CIL Readings: –1907 Hague Conv IV – Laws and Customs of War on Land Rules are actually an Annex to the Convention –“The Hostage Case” extract (U.S. Nuremburg follow-on) Issue of necessity, “Rendulic Rule” –1977 GP I specific rules applicable to land warfare –JCS Standing Rules of Engagement extract –Desert Storm Rules of Engagement pocket card Issues to ponder –What are the philosophical roots of the land warfare rules? –What is the relationship between the law of war and rules of engagement?