Aerial bombardment and international law
Encyclopedia
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.
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.
To be legal aerial operations must comply with the principles of humanitarian law: military necessity
, distinction
, and proportionality
: 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.
Bombardment by Naval Forces in Time of War (Hague IX); October 18, 1907". 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). Hague IV which reaffirmed and updated Hague II (1899) contains the following clauses:
In 1923 a draft convention, promoted by the United States was proposed: The Hague Rules of Air Warfare, December 1922 – February 1923", 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.
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: 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" 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.
In response to a League of Nations declaration against bombardment from the air, a draft convention in Amsterdam of 1938 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.
In 1939 following an appeal by Franklin D. Roosevelt
, President of the neutral United States, the major European powers including Britain and Germany agreed not to bomb civilian targets outside combat zones: Britain agreeing provided that the other powers also refrained. Britain abandoned the policy on the 15 May 1940 and bombed the Ruhr the day after Germany bombed Rotterdam
(see the policy on strategic bombing at the start of the World War II).
After World War II the judges of the military tribunal of the Trial of German Major War Criminals at Nuremberg Trials
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.
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. "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." 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. 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. 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. 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".
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:
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
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.
International humanitarian law
International humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...
by protecting the victims of the conflict and refraining from attacks on protected persons.
These restraints on aerial warfare are covered by the general laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
, because unlike war on land and at sea—which are specifically covered by rules such as the Hague Regulations and Protocol I
Protocol I
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
additional to the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
, which contain pertinent restrictions, prohibitions and guidelines—there are no treaties specific to aerial warfare.
To be legal aerial operations must comply with the principles of humanitarian law: military necessity
Military necessity
Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.-Attacks:...
, distinction
Distinction (law)
Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians...
, and proportionality
Proportionality (law)
Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
: 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.
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); 18 October 1907" and "Laws of War:Bombardment by Naval Forces in Time of War (Hague IX); October 18, 1907". 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). Hague IV which reaffirmed and updated Hague II (1899) contains the following clauses:
In 1923 a draft convention, promoted by the United States was proposed: The Hague Rules of Air Warfare, December 1922 – February 1923", 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.
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: 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" 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.
In response to a League of Nations declaration against bombardment from the air, a draft convention in Amsterdam of 1938 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.
In 1939 following an appeal by Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
, President of the neutral United States, the major European powers including Britain and Germany agreed not to bomb civilian targets outside combat zones: Britain agreeing provided that the other powers also refrained. Britain abandoned the policy on the 15 May 1940 and bombed the Ruhr the day after Germany bombed Rotterdam
Rotterdam Blitz
The Rotterdam Blitz refers to the aerial bombardment of Rotterdam by the German Air Force on 14 May 1940, during the German invasion of the Netherlands in World War II. The objective was to support the German troops fighting in the city, break Dutch resistance and force the Dutch to surrender...
(see the policy on strategic bombing at the start of the World War II).
After World War II the judges of the military tribunal of the Trial of German Major War Criminals at Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
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.
In 1963 the atomic bombings of Hiroshima and Nagasaki
Atomic bombings of Hiroshima and Nagasaki
During the final stages of World War II in 1945, the United States conducted two atomic bombings against the cities of Hiroshima and Nagasaki in Japan, the first on August 6, 1945, and the second on August 9, 1945. These two events are the only use of nuclear weapons in war to date.For six months...
were the subject of a Japanese judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
in Ryuichi Shimoda et al. v. The State
Ryuichi Shimoda et al. v. The State
Ryuichi Shimoda et al. v. The State was a case brought before the District Court of Tokyo by a group of five survivors of the atomic attacks on Hiroshima and Nagasaki, who claimed the action was illegal under the laws of war and demanded reparations from the Japanese government on the ground that...
. The review draws several distinctions which are pertinent to both conventional and atomic aerial bombardment
Strategic bombing
Strategic bombing is a military strategy used in a total war with the goal of defeating an enemy nation-state by destroying its economic ability and public will to wage war rather than destroying its land or naval forces...
. 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. "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." 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. The court acknowledged that the concept of a military objective was enlarged under conditions of total war
Total war
Total war is a war in which a belligerent engages in the complete mobilization of fully available resources and population.In the mid-19th century, "total war" was identified by scholars as a separate class of warfare...
, but stated that the distinction between the two did not disappear. 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. So in the judgement of the Court, because of the immense power of the bombs, and the distance from enemy (Allied
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
) 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".
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
International humanitarian law
International humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...
. Colonel Javier Guisández Gómez, at the International Institute of Humanitarian Law
International Institute of Humanitarian Law
The International Institute of Humanitarian Law is an independent, non-profit humanitarian organisation founded in 1970. Its headquarters are situated in Villa Ormond, Sanremo, Italy. A liaison office of the Institute is established in Geneva, Switzerland...
in San Remo
Sanremo
Sanremo or San Remo is a city with about 57,000 inhabitants on the Mediterranean coast of western Liguria in north-western Italy. Founded in Roman times, the city is best known as a tourist destination on the Italian Riviera. It hosts numerous cultural events, such as the Sanremo Music Festival...
, points out:
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
John R. Bolton
John Robert Bolton is an American lawyer and diplomat who has served in several Republican presidential administrations. He served as the U.S. Permanent Representative to the United Nations from August 2005 until December 2006 on a recess appointment...
, (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
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
is that
International law since 1945
In the post war environment, a series of treaties governing the laws of warLaws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
were adopted starting in 1949. These Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
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
Protocol I
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
was adopted as an amendment to the Geneva conventions.
The International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
gave an advisory opinion in July 1996 on the Legality of the Threat Or Use Of Nuclear Weapons.
See also
- Aerial bombing of citiesAerial bombing of citiesA species of strategic bombing, the aerial bombing of cities began in 1915 during World War I, grew to a vast scale in World War II, and continues to the present day. The development of aerial bombardment marked an increased capacity of armed forces to deliver explosive weapons in populated areas...
- Area bombardmentArea bombardmentIn military aviation, area bombardment is aerial bombardment targeted indiscriminately at a large area, such as a city block or an entire city.Area bombing is a form of strategic bombing...
- Carpet bombingCarpet bombingCarpet bombing is a large aerial bombing done in a progressive manner to inflict damage in every part of a selected area of land. The phrase invokes the image of explosions completely covering an area, in the same way that a carpet covers a floor. Carpet bombing is usually achieved by dropping many...
- Civilian casualties of strategic bombingCivilian casualties of strategic bombing-See also:* Aerial bombardment and international law* Aerial bombing of cities* Civilian casualties* Roerich Pact* Strategic bombing* Terror bombing* The Blitz...
- Roerich Pact
- Strategic bombingStrategic bombingStrategic bombing is a military strategy used in a total war with the goal of defeating an enemy nation-state by destroying its economic ability and public will to wage war rather than destroying its land or naval forces...
- Tactical bombingTactical bombingTactical bombing is the aerial bombing aimed at targets of immediate military value, such as troops, military installations or equipment. This is in contrast to strategic bombing, attacking enemy's cities and factories to debilitate the enemy's capacity to wage war, the enemy's future military...
- Terror bombing