The following materials deal with the actual waging of war. Throughout, they deal with two broad considerations:

    1) The law draws a distinction between combatants and non-combatants, and many of the issues which arise are found where such individuals are difficult to distinguish, for example, in partisan and guerilla warfare; and

    2) If one can distinguish between those two classes of people, what are the rules dealing with the means employed which may harm them?

    As you read the cases and excerpts which follow, try to analyze them within the framework which binds the operational commander: What can I do and to whom can I do it?

    The history of warfare is the story of attempts to regulate the use of new generations of weapons and tactics.  Attempts at regulation were not confined to Europeans. As Bernard Lewis says about the often misunderstood concept of jihad:

Bernard Lewis, The Middle East at 233, Simon & Schuster, (New York, 1995).  See Islamic law link for further information.

    In the 19th century, while much of the efforts went toward banning the barbed lances used by indigenous peoples who stubbornly refused to recognize the benefits of colonialization, there was some movement towards proportionality, i.e. eliminating all weapons which caused disproportionate suffering, but only as it related to some people:

Max Boot, War Made New, Vantage Press, 2006 at 147-148, discussing British fighting with Dervishes in The Sudan.

    As Sir Hersch Lauterpacht notes :

British Manual Of Military Law, Part III, § 107 at p. 40 (1958).

    Hays Parks, in his usual cogent manner, states:

W. Hays Parks, Trauvaux Preparatoires And Legal Analysis of Blinding Laser Weapons Protocol, 1997-JUN ARMLAW 13.

    The St Petersburg Declaration (German language version) of 1868 was the initial modern effort to ban weapons which caused unnecessary suffering. Its importance goes well beyond the low weight explosive projectiles banned by the Declaration, for it declared that  the only legitimate object in war "is to weaken the enemy's military and that objective is "exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable." That statement is the basis of all modern attempts at battlefield arms control. Note, that President Grant echoes that standard in his military memoirs:

Ulysses S. Grant, Personal Memoirs of Ulysses S. Grant, (1886).

    St. Petersburg was followed by an 1899 Hague conference which produced  weapons conventions dealing with expanding projectiles, asphyxiating gases and the discharge of projectiles from balloons. It also adopted the Convention for the Pacific Settlement of International Disputes which created the Permanent Court of International Arbitration at the Hague. 

    The Hague Conference of 1907 produced several conventions which are still representative of existing international law.  They include Convention IV on The Laws And Customs Of War On Land (the most important articles of which are abridged) and Convention V (German language versions) on the Rights And Duties of Neutrals In Land Warfare. Additional 1907 Hague Conventions on Naval Warfare are discussed under that topic in § 3.3.2. Some scholars believe that disarmament did not go farther at the 1907 Hague Conference because "...most of the powers seemed to share Tsar Nicholas II's view that 'disarmament was an idea just of Jews, Socialists, and hysterical women'." Geoffrey Wawro, Warfare And Society In Europe 1792-1914 at p.184, Routedge (London, 2000).

    When the Hague Conventions proved unsatisfactory during World War One, especially in light of aerial combat, use of gas warfare, and treatment of neutrals, efforts were made to take additional steps toward regulation of armed conflict. The interbellum period saw an attempt to prohibit bombardment of civilian populations (the unadopted 1923 Hague Rules Of Aerial Warfare), to protect prisoners of war (the 1929 Geneva Convention), to ban use of chemical and biological weapons (the 1925 Geneva Protocol For The Prohibition Of The Use In War Of Asphyxiating, Poisonous or Other Gases, And Of Bacteriological Methods Of Warfare) (abridged), (German language version), and to regulate use of submarines against merchant shipping (the 1936 London Proces-Verbal Relating To The Rules Of Submarine Warfare Set Forth In Part IV Of The Treaty Of London Of 22  April, 1930), as well as an unsuccessful attempt to further regulate aerial bombardment and other new means of warfare.

    Again following the Second World War there was a much more comprehensive attempt, under the auspices of the United Nations, to produce a treaty regime with binding and effective impact. The result of those negotiations was the various Geneva Conventions of 1949 which are discussed in detail in the relevant chapter sections. They include Convention I for the Amelioration Of The Condition Of The Wounded And Sick In Armed Forces In The Field (abridged) (German language version),  Convention II For The Amelioration Of The Condition Of Wounded, Sick And Shipwrecked Members Of The Armed Forces At Sea (German language version),  Convention III Relative To The Treatment Of Prisoners Of War (German language version), and Convention IV Relative To The Protection Of Civilian Persons In Time Of War (German language version).

    In the period following those immediate post-war developments, there have been additional attempts at treaty making ranging from general regimes (Additional Protocols I and II to the Geneva Conventions) to those aimed at particular problems (child soldiers) and particular weapons (land mines, for example). The most important of those treaties, whether they are yet in force or not, are:

    A core issue in any regime which seeks to regulate armed conflict is the regulation or elimination of certain types of weapons. In general, regulated weapons fall into two categories; conventional weapons and weapons of mass destruction.  Conventional weapons include devices which may appear to the non-specialist to be highly unconventional, such as laser or sonic weapons. They may more easily be defined by what they are not; that is, the weapons of mass destruction which the world attempted to ban following World War Two including gas and biological weapons, and the more problematical category of nuclear weapons. 

    For much of their history, attempts to ban specific weapons were essentially motivated by conservative forces frightened by the development of weapons which threatened those in power.

    The reader should note, however, that among the earliest codified attempts to ban individual weapons, the 1868  St Petersburg Declaration and the 1899 Hague Convention concerning expanding projectiles dealt with small arms. Still. there were serious, if unsuccessful, efforts at predicting and banning new and destructive weapons which might affect civilian populations. That was particularly true of asphyxiating gases and aerial bombardment.  (See, discussion above).

J.B. Atlay, Legitimate and Illegitimate Modes of Warfare, VI Journal of the Society of Comparative Legislation 10 (London, 1906) at 14 .

    The effective ban on gas warfare after World War I (excepting Japanese use in China), seems to have given particular impetus to bans on particular weapons. Those bans, however, as with all international law, are valid only where effective (See, discussion of Nuclear Weapons case, infra). 

    In 1980 the United Nations Conference adopted the Convention on Conventional Weapons (CCW) (German language version) to ban or restrict the use of certain conventional weapons.  The Convention  incorporates specific agreements in the form of protocols. The Convention seeks to establish a balance between humanitarian factors and military necessity.  Protocol I of the CCW  restricts fragmentation weapons, Protocol II restricts landmines, and Protocol III restricts incendiary weapons. Protocol IV, on Blinding Laser Weapons, prohibits the use and transfer of laser weapons designed to cause permanent blindness to unenhanced vision.  Those weapons categories are discussed in more detail below:

    In addition to those weapons covered under the CCW protocols, there has been some public controversy over various mass projectile weapons such as flechettes, claymore mines, cluster bomb units (see, e.g. Human Rights Watch, Civilian Deaths In The NATO Campaign, Vol. 12, No. 1(D) at p. 27), and various shotgun rounds. None of those weapons designed to stop massed ground attacks by enemy soldiers is inherently unlawful although the wounds inflicted on an individual soldier may be particularly unpleasant. See Parks, Joint Service Combat Shotgun Program, 1997-OCT ARMLAW 16. Some argument may be made, however, that there is a trend toward making cluster bombs illegal. There is also considerable discussion over new developments in non-lethal weaponry. Its potential for advances in humanitarian applications under the law of war, while considerable, is not without controversy.

    Chemical and biological weapons have been the subject or repeated attempts, some more effective than others, at banning and regulation.  See the 1899 Hague convention on asphyxiating gases, the 1925 Geneva Protocol For The Prohibition Of The Use In War Of Asphyxiating, Poisonous or Other Gases, And Of Bacteriological Methods Of Warfare, 1971 Convention On The Prohibition of the Development, Production and Stockpiling on Bacteriological and Toxin Weapons and on Their Destruction (German language version) and the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (German language version). For an extensive discussion of the history of, and international law governing, chemical warfare, see draft article (tbp Fordham International Law Journal) on nanoweapons and chemical war. That article lists, inter alia, violations which followed the signature of the 1925 Protocol.

    Despite those conventions, many states have produced and stockpiled both chemical and biological weapons, and even after the 1971 Convention entered into force the Soviet Union continued that activity.  See, Scott Keefer, International Control Of Biological Weapons, 6 ILSA J. Int'l & Comp. L. 107 (1999).

    There is, despite those lapses, a strong argument to be made for distinguishing these particular weapon classes. Unlike high explosive or anti-personnel weapons which may effectively be deployed against legitimate military targets without necessarily causing casualties among protected persons, gas and biological weapons are really only effective against an untrained and unprotected populace. They are, in fact, terror weapons, limited in effectiveness against armed forces but potentially useful for attacking an enemy's cities. Note closely the following:

John Cornwell, Hitler's Scientists 272, Viking (New York, 2003). The accuracy of that projection against even minimally protected troops is highly suspect. In the event, however, it was never tested.

    Later concerns caused at least the extensive stockpiling by the Allies of chemical weapons:

Rick Atkinson, The Day Of Battle: The War In Sicily And Italy 1943-1944 at 272. Henry Holt, 2007. There was also apparently some consideration given by the United States to using chemical weapons in the invasion of Japan although it was vetoed by successive Presidents.

    It is quite arguable that chemical weapons remained unused in Europe because of the extensive preparedness by all sides for defense against their use. It is their unique level of ineffectiveness as military weapons that also distinguishes poison gas and bioweapons from the other troubling category of weapons of mass destruction: nuclear weapons. As noted above, a weapon which causes unnecessary suffering is on its face one which is disproportionate to its military effectiveness. Thus, as an ineffective weapon militarily, and one designed uniquely to terrorize civilians (See, e.g. Iraqi SCUD attacks on Israel during the Persian Gulf War) poison gas and bioweapons are illegal not only under the above-referenced conventions, but also under the customary laws of war.

    Current international efforts to ban the production, stockpiling or use of chemical weapons include the existence of a multinational inspection and verification organization. There are current attempts to create a similar regime for biological weapons. An interesting new question is whether nanobots or materials which mimic banned chemical weapons, are covered by the conventions. A recent article concludes they most likely are covered.

    Nuclear weapons are controversial. They embrace a number of weapons types, including blast, biological, chemical and radiological effects to greater or lesser degrees, depending upon their size and type.

    Their possession and use is, however, in the long run governed by the central doctrine of the law of war: proportionality. To the extent that a State is faced with the threat of nuclear destruction, or indeed, non-nuclear destruction, an argument may be made for the right to possess, and if absolutely necessary use, these weapons of mass destruction.

    The only country to actually attack another with nuclear weapons is the United States, which dropped atomic bombs on two Japanese cities to end the Second World War in 1945. Arguments may be made for and against that action, although revisionist historians give too little weight to the then prevailing belief among the Allies that the Japanese government would murder all prisoners of war still held by Japan if the home islands were invaded, and that the casualty rate would be catastrophic not only among the invading troops, but also in the civilian population throughout Japan. Those factors need to be considered in any analysis of the legality of that decision. 

The Nuclear Weapons Case

    In 1996 the International Court of Justice, at the request of the UN General Assembly,  produced an Advisory Opinion on the Legality Of The Threat Or Use Of Nuclear Weapons. The opinion leans toward illegality but the majority of judges refused to find the weapons absolutely banned or that their use was illegal under standards of the gravest need. Some, but not all, of the arguments raised and discussed below are reflected in that opinion.

    Besides the general limitations above discussed, there are limitations specific to the various methods of armed conflict available to belligerents. Many of those limitations are implicated by specialized treaties (for example, an attempt to flood an enemy by melting the Antarctic icecap would almost certainly violate the Antarctic Treaty (German language version) as well as the Environmental Modification Treaty) (German language version) but there is also a considerable body of limiting law reflected in general conventions devoted to control of warfare in its various spheres. The following discussion, while limited, is designed to introduce the student to the specialized applications of land, sea, and air war, and their concomitant strictures.

    The doctrines underlying land warfare are central to the laws of war; proportionality and minimum use of force necessary to achieve legitimate military goals. They are well represented in the rules quoted by Generalfeldmarshall Erhard Milch at the Nuremberg trial under examination by the chief American prosecutor, Justice Robert Jackson:

IX Trial of the Major War Criminals before the International military Tribunal, Nuremberg, pp. 85-87, 11 March, 1946.

    Compare those standards with Hersch Lauterpacht's note in The Manual of Military Law:

Lauterpacht, British Manual Of Military Law, Part 3, at p.171 (1958).

FM 100-5 Operations (1993) at p. 7-0.

    For the best general discussion of the law of land warfare see the United States Army's, FM 27-10, The Law of Land Warfare. See also, the general code of conduct for the Israel Defense Forces (Spirit of Zahal).

Burdick H. Brittin, International Law For Seagoing Officers,  p.243, (4th Ed), Naval Institute Press (1981).

    Specialized rules for naval warfare have, however, existed and continue to exist. A good example is found in the 1936 London Proces-Verbal Relating To The Rules Of Submarine Warfare Set Forth In Part IV Of The Treaty Of London Of 22  April, 1930. The treaty provided in part that:

    How was it honored during the world war which erupted in September, 1939?

    Germany ordered that:

Führer Directive No.5 of September 30, 1939, XIII International Military Tribunal, Trial of the Major German War Criminals 412.

Karl Doenitz, Memoirs, Ten Years And Twenty Days, DaCapo Press (Annapolis, 1997) at 54.

A Führer Directive of May 24, 1940, gave the German Navy complete operational freedom in waters around England and off the French coast. See, Whiteman, 10 Digest of International Law, 658 (1968).

    Churchill, as First Sea Lord, told the House of Commons in 1940 that in the Norwegian campaign "...all German ships by day, and all ships by night were to be sunk as opportunity served." By June, 1941, the British submarine service "...was freed from all the early restrictions regarding attacks on merchant shipping..." Roskill, The War at Sea (1954) cited in Whiteman, supra, at 660.

    On December 7, 1941, the United States' Chief of Naval Operations ordered the execution of unrestricted submarine warfare against the Empire of Japan.  In his affidavit in the Dönitz trial U.S. Admiral Chester Nimitz said that disregard of the London Protocol "...was justified by the Japanese attacks on that date on U.S. bases, and on both armed and unarmed ships and nationals, without warning or declaration of war." XL Trials of the Major War Criminals p.111.

    Regarding Dönitz's culpability for violating the 1936 Protocol, the IMT stated:

I Trials of the Major War Criminals p.313.

    Use of naval power for blockade purposes has continued. In 1962, during the height of the United States' confrontation with Cuba and the U.S.S.R., a C.I.A. memo recorded a discussion of possible actions including a proposal by Dean Rusk:

    The ICJ, in Nicaragua v US considered the use of naval mines planted in the territorial waters of another state:

Nicaragua v US at ¶ 213.

    The ICJ went on to note that:

Nicaraugua v US at ¶ 215.

    For an excellent and comprehensive discussion of the current law of naval warfare see Commander's Handbook on the Law of Naval Operations NWP 1-14M Part 2, Law of Naval Warfare. See also: Naval War College Law of Armed Conflict Resource Page.

   Even prior to the development of powered flight, the international community recognized and attempted to impose legal controls on the use of aircraft as weapons of war. A series of treaties, protocols and declarations was proposed, and several entered into force. Their effectiveness was, to say the least, limited. 

Neville Jones, The Origins Of Strategic Bombing, at p.25,  William Kimber (London, 1973).

United States Department of State, September 28, 1937. 1 Foreign Relations of the United States : Japan, 1931-1941 p.506 (GPO, 1943).

    Interpretation of the legal requirement for aerial bombardment, at least to some extent, may have flowed from rather than dictated, strategic considerations. Consider this discussion of the effects of General Billy Mitchell's demonstration of the efficacy of bombers against warships:

Robin Neillands, The Bomber War, (Barnes & Noble Books, New York, 2001) at 21.

Appeal to warring powers, Franklin D. Roosevelt, September 1, 1939.

 Neillands, The Bomber War, supra, at 23.

    On the evening of 28 December, 1940, the last Sunday of the year, German bombers dropped 800 incendiary bombs over the square mile of the Old City of London. They were followed by high explosive bombs which fractured water mains. The heart of the city was burning fiercely.

    As Allied bombing policy developed the targeting of civilian populations became increasingly likely:

 Neillands, The Bomber War, supra, at 186-187.

Chris Whiting, Britain Under Fire, Pen&Sword Books, Barnsley (1999) at p.51.

Ronald Bailey, The Air War In Europe, Time-Life, Alexandria (1981) at p. 95.

Keith Wheeler, Bombers Over Japan, pp. 168-169 (Time-Life Books, 1982).

Confidential Memorandum of June 17, 1945, General Bonner Fellers, Aide to General Douglas MacArthur, quoted in War Without Mercy, Ibid at 41.

    James Bradley, in Flyboys at pp. 268-269, Little Brown (New York, 2003) notes that to test the potential of incendiary bombs, the Army built a "Little Tokyo" at Dugway Proving Ground in Utah. Carpenters built and furnished two dozen Japanese style houses. Various napalm bombs were tested against them, and the eventual choice was the M69 bomb. The M69 contained napalm packed in cheesecloth bags, and ejected them after landing so that small packets of flaming napalm burst against potential targets. Bradley raises an excellent question. If industrial targets were the priority for destruction, why was the M69 tested against Japanese housing?

    General Curtis LeMay ordered the fire raids on Tokyo. In his memoirs, he says:

J.M. Spaight, Air Power and War Rights pp. 240-277 (3rd Ed. 1947). 

LeMay, id. at 384.

Bradley, Flyboys at 260. Doolittle said that Americans supported daylight bombing not because it was precise, but because "to us, it was the most ethical way to go." James Doolittle, I Could Never Be So Lucky Again at p. 376 (New York, 1991).

Sir Arthur "Bomber" Harris, RAF Bomber Command, quoted in Parks, Air War And The Law Of War, 32 Air Force Law Review 1 (1990).

    On 3 November, 1942,  Charles Portal sent a memo to the British chiefs of staff seeking their approval for a bomber offensive:

Quoted in Wilbur H. Morrison, Fortress Without A Roof, St Martin's Press, (New York, 1982) at pp.70-71.

    Aerial bombardment may be the most likely form of combat which will, in the ordinary course, be utilized by the major powers. Recent events in Kosovo demonstrate that, for the moment at least, the proponents of "victory through air power" have achieved the upper hand among the western democracies. (The United Nations reviewed NATO's conduct of the air war in Kosovo and found no actionable violation of the laws of war.). That development seems largely related to the unwillingness of democratically elected leaders to expose their troops to the uncertainties of ground warfare when a "clean, surgical" means is at hand. "Clean" and "surgical" are, of course relative terms. The shirt sleeve environment of a radar aircraft directing strikes in the air land battlefield, or the relative safety of the cockpit of a high flying bomber is a far cry from the receiving end. 

    Air Force Pamphlet 110-31 nicely summarizes customary law:

    The most definitive piece on the law relating to Aerial warfare was Hays Parks Parks' encyclopedic Air War And The Law Of War, 32 A.F. L. Rev. 1 (1990). See also, Parks, Rolling Thunder and the Law of War Air and Space Power Chronicles and USAF Policy Directive on Compliance with the Law of Armed Conflict. For an excellent research tool see The Law of Armed Conflict in Air and Space Operations, which has extensive links to additional material.

    Aerial bombing and other means of attack from the air was envisioned even before the development of heavier than air vehicles. It was utilized by the Italians in colonial warfare prior to WWI, and was used with some effect against enemy cities by both sides during that conflict. With some exceptions though, as it was developed between the wars, and right through WWII aerial bombardment was an "hit or miss" affair. 

    American claims that they could drop a bomb in a pickle barrel using their semi-computerized bombsight proved to be largely beyond their technical capacity in the harsh weather and polluted skies of Europe. As a result, all sides generally resorted to "target area bombardment" or "box bombing;" the idea being that pathfinder aircraft would mark a large target area and other aircraft would simply try to drop bombs within that designated box. The concept proved devastating to civilian populations in large European and Japanese industrial cities.

Morrison, Fortress Without A Roof, St Martin's Press, (New York, 1982) at pp.67-68.

    The U.S. Air Force's AF Pamphlet 14-210 provides detailed information about modern targeting techniques and analysis. Attachment 4 to that pamphlet is specifically concerned with targeting and international law. See U.S. Air Force Policy Directive re: Compliance With The Law of Armed Conflict. See also, U.S. Department of the Air Force, Strategic Attack (Air Force Doctrine Document 2-1.2, May 20, 1998, and Air Force Doctrine Document 2-4.5: Legal Support.

    The most interesting new development in aerial bombardment is the effect of availability of "smart" weapons. 

Richard P. Hallion, Air Powers Studies Centre Paper No. 53, RAAF Base Fairbairn (1995).

    These descendents of WWII German guided bombs are, at their best, quite capable of striking a particular spot on a designated building in an enemy city. They may also, in other circumstances, be used to pursue and destroy a moving target. If those weapons do, however, measure up to the standard just enunciated, an obvious question arises; what is their effect on the legality of target area bombardment? For an overview of potential air power developments see this recent forecast of one possible future for the U.S. Air Force. For additional information relating to new weapons development, see the DARPA web site. For the Red Cross view on aerial warfare, see its web site of law of air warfare.

 Air Marshal Sir Ivor Broom quoted from a March, 1999, letter to Robin Neillands, The Bomber War, supra, at 205.

   In addition to the means and methods limitations above discussed there are treaty and other restrictions limiting  where hostilities can be conducted. In addition to the implied restrictions in the Antarctic there are treaties preventing use of weapons in outer space and the use of environmental modification techniques over broad areas. The former has become "hot news" since the United States denounced the Anti-Ballistic Missile Treaty.

    According to the United States Department of Defense:

See, Office of General Counsel, International Legal Issues In Information Operations Report By DoD  (May, 1999).

    Among these treaties, the Anti-Ballistic Missile Treaty represents a  significant limitation on the pursuit of war in outer space. The current conflict regarding modification is more one of diplomacy than of law. As it is currently written, however, the Treaty does prohibit extensive deployment of a system which could extend warfare past the limits of the earth. Other treaties, however, impact that argument. For further discussion see the Federation of American Scientists and the Center For Defense Information.

    Thus, for example, in 1963, the United States and the U.S.S.R. signed a treaty banning the use of nuclear weapons in outer space.

    For useful background see the U.N. website on space law.

    The Convention on the Prohibition of Military or Any Other Hostile Use Of Environmental Modification Techniques (ENMOD) (German language version) entered into force in 1977. It prohibits hostile use of environmental modification techniques which have widespread, long-lasting or severe effects as the means of injury to another nation. The accompanying understanding defines widespread as encompassing an area on a scale of several hundred square kilometers, long lasting as a period of months, and severe as involving significant disruption or harm to human life, natural and economic resources and other assets. The United Nations General Assembly noted in Resolution 47/52 that "the confirmation ... that the military or any other hostile use of herbicides as an environmental modification technique in the meaning of article II is a method of warfare prohibited by article I if such use of herbicides upsets the ecological balance of a region, thus causing widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party." The Treaty, however, has not prevented consideration of future use of weather modification techniques for military purposes. 

   Humanity's ingenuity in devising methods for killing people has never been matched by the law's measured pace. In part, because one can only speculate about future methods of warfare, there are practical limits on preemptive controls. The Laser Protocol and the various outer space treaties, however, indicate the response time has shortened. In any case, those concerned with controlling means and methods of warfare would do well to study the tools of the trade as they are developed and before they are deployed.