Never, never, never believe any war will be
smooth and easy, or that anyone who embarks on that strange voyage can
measure the tides and hurricanes he will encounter. The Statesman who
yields to war fever must realize that once the signal is given, he is no
longer the master of policy but the slave of unforeseeable and
uncontrollable events. Antiquated War offices, weak, incompetent or arrogant
Commanders, untrustworthy allies, hostile neutrals, malignant Fortune, ugly
surprises, awful miscalculations--all take their seat at the Council Board
on the morrow of a declaration of war. Always remember, however sure
you are that you can easily win, that there would not be a war if the
other man did not think he also had a chance.
Winston S. Churchill, My Early Life (1930)
A Note To The Reader: This interactive text contains hyperlinks
both to complete copies of important document found at other sites and to
abridged versions of the same document on this site. Those abridged versions are
noted after the first link as "abridged." They have been provided for
the convenience of the reader interested in substantive versions of treaties but
absent information regarding such matters as structure of secretariats and
provisions for entry into effect. The text is color coded as follows:
A Note To The Law Of War
Student: Particularly relevant sections of underlying case readings are yellow
highlighted. The student is, however, expected to at least be familiar
with the entire reading. Where the case title is highlighted, as in Yamashita,
the student is expected to read carefully the entire case.
A Note to German Students:
To facilitate your understanding I have included German language texts of
treaties where available. The hyperlink will be identified by the words "German
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
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?
3.1 Regulated And Forbidden Conduct
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:
|Another positive obligation
prescribed by the jurists and theologians is that of jihad. This is
an obligation of the community as a whole in offense, of every individual
Muslim in defense. The term jihad conventionally translated 'holy
war', has the literal meaning of striving....Some Muslim theologians,
particularly in more modern times, have interpreted the duty of 'striving
in the path of God' in a spiritual and moral sense. The overwhelming
majority of early authorities, however, citing relevant passages in the
Qur'an and in the tradition, discuss jihad in military terms.
Virtually every manual of shari'a law has a chapter on jihad,
which regulates in minute detail such matters as the opening, conduct,
interruption and cessation of hostilities, and the allocation and division
of booty. Fighters in the holy war are enjoined not to kill women and
children unless they attack first, not to torture or mutilate prisoners,
to give fair warning of a resumption of hostilities, and to honor
agreements. The Holy Laws required good treatment of non-combatants, but
also accorded the victors extensive rights over the property and also the
persons and families of the vanquished. These could be reduced to slavery
and, for the females, concubinage.
Lewis, The Middle East at 233, Simon & Schuster, (New York,
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:
power of many of their bullets was augmented by filing off the tips.
These hollow-points, known as dum dums because they had first been made
at the British arsenal in Dum Dum, India, expanded on impact, carving
through living flesh like a serrated knife through a cooked chicken
breast. They were such a terrible weapon that they would shortly be
outlawed in European warfare, but they were considered fair game against
Max Boot, War Made New, Vantage Press, 2006 at 147-148,
discussing British fighting with Dervishes in The Sudan.
As Sir Hersch Lauterpacht notes :
|The first principle
of war is that the enemy's powers of resistance must be weakened and destroyed.
The means that may be employed to inflict injury on him, and which include both
force and stratagems, are not, however, unlimited. They are restricted by
international conventions and declarations, and also by the customary rules of
warfare. Moreover, there are the compelling dictates of humanity,
morality, civilization and chivalry, which must not be disregarded.
British Manual Of Military Law, Part III, § 107 at p. 40
Hays Parks, in his usual cogent manner,
Method of warfare is one of two historic phrases of the law of war. Although
neither phrase has an agreed definition, means of warfare traditionally has been
understood to refer to the effect of weapons in their use against combatants,
while method of warfare refers to the way weapons are used in a broader
sense. Thus, means considers the legality of the way in which a
projectile or its fragments kill or injure combatants. An an illustration,
Protocol I of the UNCCW make the use of fragments not detectable by X-ray a
prohibited means of warfare.
In contrast, method weighs the way in which weapons may be employed,
particularly where employment may have an adverse effect on civilians not taking
a direct part in the hostilities. The prohibition of poison or poisoned weapons
... is a prohibition on a means of warfare, while the customary practice of
condemning the poisoning of wells prohibits a method of warfare....
Unfortunately, a certain degree of confusion and overlap between the two
concepts has occurred over the past two decades...
W. Hays Parks, Trauvaux
Preparatoires And Legal Analysis of Blinding Laser Weapons Protocol,
1997-JUN ARMLAW 13.
The St Petersburg Declaration
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:
|The enemy used
in their defense explosive musket-balls, no doubt thinking that, bursting
over our men in the trenches, they would do some execution; but I do not
remember a single case where a man was injured by a piece of one of these
shells. When they were hit and the ball exploded, the wound was terrible.
In these cases a solid ball would have hit as well. Their use is
barbarous, because they produce increased suffering without any
corresponding advantage to those using them.
Ulysses S. Grant, Personal Memoirs of Ulysses S. Grant,
St. Petersburg was followed by an 1899 Hague conference
which produced weapons conventions dealing with
gases and the discharge
of projectiles from balloons. It also adopted the
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),
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
I for the Amelioration Of The Condition Of The Wounded And Sick In Armed Forces
In The Field (abridged) (German
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
In the period following those immediate post-war
developments, there have been additional attempts at treaty making ranging from
general regimes (Additional Protocols
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:
Questions To Consider About Regulated And Forbidden Conduct
Give an example, not discussed above, of forbidden conduct which became
acceptable during the course of hostilities. Why did the change occur?
Was there a principled legal basis or was it based solely on expediency?
Explain your answer.
What are the "munitions of war" in Article 53 of Convention
IV? For a discussion, see Evan Wallach, The Use Of Crude Oil By An Occupying
Belligerent State As A Munition De Guerre, 41 International And Comparative
Law Quarterly 287 (1992).
Consider the terms of articles 22-26 of the 1923 Hague Rules For Aerial
Warfare. While they were not adopted in legally binding form, legal
scholars at the time considered them an authoritative statement of
existing law. How do those rules effect your analysis of the legality of
Allied bombardment of Dresden, Germany and Tokyo, Japan in World War
Analyze the development of a regime directed to controlling means and
methods of combat since 1900. Has that regime ever been proactive and
anticipated a problem before it developed?
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.
3.2.1 Conventional 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).
|But Great Britain, whose army
finds its main vocation in fighting savage tribes to whom nothing short of
a "cripple stopper" is a deterrent, can never afford to fetter its action
and sacrifice the lives of its soldiers by adherence to any such
proposition [banning "Dum-Dum" bullets]. During the Boer War the Dum-Dum
bullet was forbidden, but the fact remains that a very little ingenuity on
the part of the soldier will convert the ordinary rifle bullet into an
expanding or flattening missile.
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
In 1980 the United Nations Conference adopted the
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,
restricts landmines, and Protocol III restricts incendiary weapons.
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:
|Undetectable Fragmentation Weapons:
Protocol I provides
that "it is prohibited to use any weapon the primary effect of which is
to injure by fragments which in the human body escape detection by X-rays."
The import is obvious, but problems may arise in landmines designed to avoid
magnetic detection. See, discussion of Ottawa Convention below.|
Incendiary Weapons: Article I of
Protocol III defines
Incendiary Weapon as "any weapon or munition which is primarily
designed to set fire to objects or to cause burn injury to persons through
the action of flame, heat, or a combination thereof, produced by a chemical
reaction of a substance delivered on the target." It exempts signaling
and standard munitions which have incendiary side effects. The Protocol
absolutely prohibits incendiary attacks against concentrations of civilians
or air delivered incendiary attacks against military targets in such
concentrations. It limits incendiary attacks delivered against such military
targets by other means and it also limits such attacks on forests and other
plant cover. See discussion of fire weapons in Morris Greenspan, The Modern Law
of Land Warfare at 359-363 (1959), and
U.S. Treaty Compliance position.|
Laser Weapons: The Laser (Light Amplified by
Stimulated Emission of Radiation) is a device which produces a highly
focused beam of light. They are, or soon will be, usable in the battlefield environment as
range finders, target designators, and as antisensor, antimaterial and
antipersonnel weapons in aircraft
and by ground troops. Protocol IV bans "laser weapons specially
designed [as a combat function] to cause permanent blindness to unenhanced
vision..." The Protocol does not, however, ban other types of blinding
weapons, nor does it ban weapons which are designed, for example, to destroy aircraft and which might incidentally blind the pilot, or which,
for that matter are designed to temporarily dazzle or blind a pilot. See, Overholt (Parks), The Use Of Lasers As Antipersonnel Weapons,
1988-NOV ARMLAW 3; Ann Peters, Blinding Laser Weapons: New Limits On The
Technology Of Warfare, 18 Loyola L.A. Int'l & Comp. L.J. 733 (1996);
W. Hays Parks, Trauvaux Preparatoires And Legal Analysis of Blinding Laser
Weapons Protocol, 1997-JUN ARMLAW 13 (anything by Hays Parks is worth
|Land Mines: Landmines are munitions placed on or under
the ground and designed to explode upon contact with or proximity of a
person or vehicle. On 24 May, 1999 the
States signed instruments of ratification for (amended)
banning certain types of landmines in both internal and international
conflicts. Protocol II also places significant restrictions on long-term
emplacement of mines and the use of mines disguised as or in connection with
sick, wounded or dead individuals, cultural objects and places, medical
facilities, religious objects, objects relating to children and certain
other categories. What Protocol II does not do is ban landmines in their
entirety, largely because the United States believes
are useful and legitimate tools against an aggressor. There is, for that
reason, currently another treaty under submission to the world
community. The Ottawa Convention
bans the use, stockpiling, production and transfer of anti-personnel
landmines. The United States
participated in the drafting of that treaty but was dissatisfied with
the results and has not ratified it. For a useful discussion, see Barfield,
Antipersonnel Land Mines Law and Policy, 1998-DEC Army Law. 22. See
also, Yuette Politis, The Regulation Of An Invisible Enemy: The International
Community's Response To Land Mine Proliferation, 22 Boston College
International and Comparative Law Quarterly 465 (1999).|
|Shotguns: A shotgun fires a shell containing multiple
projectiles that cover a specific shot pattern at a specific distance. The
principle proponent of these weapons has been the United States, See, W.
Joint Combat Shotgun Program, Army Lawyer 16 (October, 1997), although
their principle State opponent, under Hague I and IV, Germany, has recently
adopted the weapon for its armed forces. |
In addition to those weapons covered under
the CCW protocols, there has been some public controversy over various mass
projectile weapons such as flechettes,
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.
Questions About Conventional Weapons
|18.104.22.168 The central objection to deployment of
landmines seems to be their devastating effect on civilian populations,
especially in internal conflicts. If mines were designed to self-destruct
within a certain set period (e.g. 72 hours) would those objections have the same
moral force? In answering this question consider that it is technologically
feasible to deploy anti-tank mines using artillery or aircraft and that they can
be an effective weapon in preventing a massed attack by aggressor armored units
such as those which invaded Kuwait in 1990.
|22.214.171.124 Is the Laser Protocol at all useful? If a
weapon can be used against military personnel as long as they are not the
"primary target", is there any effective ban on its use?
|126.96.36.199 In 1945 the United States used incendiary
attacks to "dehouse" the population of Japanese cities. Would such
attacks be legal under Protocol III?
Make an argument for and against entirely banning flame weapons. Consider
issues including proportionality, availability of other weapons, and
Chemical & Biological Warfare
Chemical and biological weapons have been
the subject or repeated attempts, some more effective than others, at banning
and regulation. See the
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,
Convention On The Prohibition of the Development, Production and Stockpiling on
Bacteriological and Toxin Weapons and on Their Destruction (German
language version) and the
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:
|In June 1940
Winston Churchill asked for a report on the amount of mustard gas or other
types of poison gas in stock to be used in shells and aerial bombardment.
The idea was to bombard invading Germans on the beaches. According to
Britain's Inspector of Chemical Warfare:
Low spray attacks on an enemy approaching our shores
in open boats or after landing are likely to be effective if frequently
repeated, and will ultimately result in 100 per cent casualties among
the men hit by the spray. If the enemy are not wearing eye
shields, a considerable number will be blinded unless they cover their
eyes. They cannot do this and use their weapons at the same time.
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:
prisoner interrogations suggested intensified German preparations for
chemical combat, and rumors circulated of a new, egregiously potent gas.
"Many soldiers in the German army say,'Adolf will turn to gas when
there is no other way out,'" a Fifth Army memo noted in
mid-October. Nineteen plants in Germany were suspected of making
poisonous gases, with others scattered across occupied Europe.
No commander in 1943 could be cavalier about a
manifest threat by Germany to use gas. Spurred by resurgent concerns in
the Mediterranean, Roosevelt in August publicly warned Berlin of
"full and swift retaliation in kind." Allied policy had long
authorized large chemical depots near Oran and elsewhere....Now, to
ensure a capacity for "swift retaliation," AFHQ and the War
Department had secretly agreed to finish stockpiling a forty-five day
chemical reserve in the Mediterranean, including more than 200,000 gas
bombs. (How the Germans would be deterred if the deterrent remained
secret was never adequately explained).
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.
Questions About Gas And Biological Warfare
|188.8.131.52 Why was the Hague ban on use of asphyxiating gases in
combat ineffective in World War One and yet substantially followed by all
combatants in World War Two?
|184.108.40.206 Is there a qualitative difference between
international aggression by a nation which uses weapons of mass destruction and
one which uses massed conventional weapons similar to the target aerial
bombardment of Axis targets by the Allies in World War Two?
Is the use of gas always unlawful? What about non-poisonous riot control
agents which cause tearing, choking or vomiting reactions? May such
gases be used for domestic riot control but not in a military situation?
If so, how may authorities control prisoner
of war disorders such as occurred during the Korean War. Must they
instead use potentially more lethal weapons?
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
The only country to actually attack another
with nuclear weapons is the United States, which dropped atomic bombs
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
The Nuclear Weapons Case
In 1996 the International Court of Justice,
at the request of the UN General Assembly, produced an Advisory Opinion on
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.
Questions To Consider About Nuclear Weapons
|220.127.116.11 What effect does an effective defense against nuclear
weapons have on their legality? That is to say, to the extent that possession of
nuclear weapons is justified by the concept of mutual assured destruction, is
that legal basis undermined where there exists another form of deterrence?
|18.104.22.168 Consider the decision by President Truman to use the
atomic bomb against Hiroshima and Nagasaki. Under current law governing target
aerial bombardment, would that decision have been legal? How does it differ from
the use of fire weapons against other Japanese cities?
3.3 Limits On Methods Of Warfare
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
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
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:
Milch: Ten Commandments for the Conduct of the German soldier in war.
1. The German soldier fights chivalrously for the victory of his people. Cruelty
and needless destruction are unworthy of him.
2. The fighter must wear a uniform, or else he must be provided with insignia
visible from a good distance. Fighting in civilian clothes without such insignia
3. No enemy once he has surrendered shall be killed, not even a partisan or a
spy. The courts will administer the just punishment.
4. Prisoners of war must not be maltreated or insulted. Weapons, plans and
notes are to be taken from them. Apart from these, none of their possessions may
be taken from them.
5. Dum-dum bullets are prohibited. Bullets may not be transformed into
6. The Red Cross is inviolable. Wounded enemies must be treated humanely.
Medical orderlies and chaplains must not be hindered in the performance of their
medical and spiritual functions.
7. The civilian population is inviolable. The soldier must not plunder or
wantonly destroy. Historical monuments and buildings dedicated to religious
service, art, science, or charity must be treated with special care. Personal
services and services in kind shall only be required of the civilian population
against compensation, and if ordered by the superior officer.
8. Neutral territory must not be militarily involved by trespassing planes
flying over it, or by gunfire.
9. If a German soldier is captured, he must state his name and rank when
questioned. Under no circumstances may he say to what unit he belongs, or speak
about military, political, or economic conditions on the German side, neither
may he allow himself to be induced to do so by threats or promises.
10. Any contravention of these orders while on active service is
punishable. Breaches by the enemy of the rules listed under 1 to 8 are to
be reported. Reprisals are permissible by order of the higher commanders.
Now that, as you understand it, is the military law conforming with
international law, which was promulgated for the governance of the troops in the
And you understood, and it was generally understood in the German Army, that was
international law, was it not?
Every soldier could not help knowing that these were the German regulations
because they were pasted on the first sheet of the paybook issued to every
soldier, and which he had to carry on him. The common soldier, of course, did
not know that they represented international law.
That represented your understanding and interpretation of your duties and
obligations as honorable men in combat?
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:
the case of a mass rising of the civilian population amounting to an effective
insurrection (as opposed to the sporadic activities of a resistance movement) in
occupied territory, when self-preservation compels a belligerent to adopt most
severe measures, general devastation might be considered absolutely
necessary. In the German High Command Trial... it was held that, in the
circumstances of the case, measures of general devastation in Russia ordered by
the accused and considered by him to be militarily necessary at the time,
probably came within the scope of military necessity as recognized by Hague
Rules 23(g). The tribunal, although satisfied that in retrospect the destruction
was not justified by military necessity, said: "Defendants in this case
were in many instances in retreat under arduous circumstances wherein their
commands were in serious danger of being cut off. Under such circumstances a
commander must necessarily make quick decisions to meet the particular situation
of his command...
Lauterpacht, British Manual Of
Military Law, Part 3, at p.171 (1958).
PURPOSES OF THE
The main purpose
of the offense is to defeat, destroy, or neutralize the enemy force.
Additionally, offensive operations are undertaken to secure decisive
terrain, to deprive the enemy of resources, to gain information, to
deceive and divert the enemy, to hold the enemy in position, to disrupt
his attack, and to set up the conditions for future successful operations.
Because tactical offensive operations often
expose the attacker, they normally require local superior combat power at
the point of attack. That and the need to have sufficient force available
to exploit success imply accepting risk elsewhere. Commanders build up
sufficient combat power in their main effort to overwhelm the enemy at the
critical time and place.
At the point of their attack, commanders avoid
the enemy’s main strength, turning him out of his defensive positions,
isolating his forces from sources of support, and forcing him to fight in
an unintended direction over ground he has not prepared. By attacking this
way, the disadvantages of fighting exposed and surprised shift to the
defender. One experienced soldier once put it this way, "Hit the other
fellow as quick as you can, as hard as you can, where it hurts the most,
when he isn’t looking."
At times more direct attacks are possible.
However, such attacks are nearly always costly in lives and materiel.
Commanders should undertake them only when no other approach will
accomplish the mission.
Inflicting physical damage is frequently
necessary for offensive success. The tactical offense can achieve large
gains by destroying the coherence of the defense, fragmenting and
isolating enemy units in the zone of attack, and driving deep to secure
decisive objectives. Historically, the most successful offensives have
produced more enemy prisoners than casualties, reflecting the significant
impact of offensive shock on the enemy’s will to resist.
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).
Relating To Land Warfare
| 22.214.171.124 Did
the promulgation of specific rules to all German soldiers make commanders more
or less culpable for those violations identified in the Nueremberg and later
| 126.96.36.199 Examine closely the
rules discussed by Milch and compare them with the then existing Hague and
Geneva conventions. How closely did the "Ten Commandments" comply on
paper with international law as it was at the time? Did the German armed
forces attempt to enforce those rules? If not, why were they printed in every
soldier's paybook? If so, then why did the German Army fail to prevent the mass
murder of millions of civilians? For further discussion and two contrary views
see, Daniel Goldhagen, Hitler's Willing Executioners, Vintage Books, New York
(1997), and Alfred Rhodes, Masters of Death, Knopf, New York (2002).
188.8.131.52 The United States and many other nations have active law of war programs
designed to teach international limitations to their combat troops. A
recent U.S. Army report on misconduct against civilians in Kosevo by members of the 82nd Airborne Division faults both commanders and inadequate
training for peacekeeping duties. How much more specific can rules be than the
"Ten Commandments" above, and how do you think training should reflect
those rules? (See discussion of Rules of Engagement, supra).
It is important to grasp the significance of one major distinction between land
warfare and armed conflict at sea: land warfare is carried on almost exclusively
in the territory of one of the belligerents, while sea warfare is, for the most
part, fought on the high seas, which are not within the sovereignty of either
belligerent but are open to lawful use by all the nations of the world. There is
bound to be some conflict between the interests of the belligerents whose
purpose is the destruction of one another's naval power and maritime commerce,
and the legitimate interest of neutrals, who seek to carry on their ordinary
commerce with each other, and to the extent permitted by International Law, with
the belligerents. ...
In most respects the general principles of naval warfare are not materially
different from those applicable to land or aerial warfare. The prohibitions
against weapons that cause unnecessary suffering...are applicable to warfare at
sea.... The complementary principles of humanity and military necessity apply
equally to war at sea, as does the principle of chivalry, at least to the extent
that it is still valid.
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
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:
in the case of persistent refusal to stop on being duly summoned, or of active
resistance to visit or search, a warship, whether surface vessel or submarine,
may not sink or render incapable of navigation a merchant vessel without having
first placed passengers, crew and ship's papers in a place of safety. For this
purpose the ship's boats are not regarded as a place of safety unless the safety
of the passengers and crew is assured, in the existing sea and weather
conditions, by the proximity of land, or the presence of another vessel which is
in a position to take them on board.
How was it honored
during the world war which erupted in September, 1939?
Germany ordered that:
The war against merchant shipping is, on the whole, to be fought according to
prize law, with the following exceptions:
Merchantmen and troop ships recognized beyond doubt as hostile may be attacked
The same applies to ships sailing without lights in the waters around the
Armed force is to be employed against merchantmen which use their radio
transmitters when stopped.
As before, no attacks are to be made upon passenger vessels or large steamships
that appear to be carrying passengers in large numbers as well as goods.
Directive No.5 of September 30, 1939, XIII International Military Tribunal, Trial
of the Major German War Criminals 412.
The U-boats had to wage war
in accordance with the conditions laid down in the Prize Ordinance. These
were the same as those contained in the London Submarine Agreement of
1936. That is to say, the U-boat was required to act in the same
manner as a surface vessel; whether the merchant ship were armed or not,
the U-boat had first to surface before it could halt and examine it. If
...the U-boat was entitled to sink the vessel, it was first required to
ensure the safety of the crew; on the high seas the lifeboats carried by
the merchant vessel were not deemed to be adequate for the purpose.
Karl Doenitz, Memoirs, Ten Years And Twenty Days, DaCapo Press (Annapolis,
1997) at 54.
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,
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:
In view of all the facts proved and in particular of an order of the British
Admiralty announced on 8 may, 1940, according to which all vessels should be
sunk at night [in Norway], and the answers to interrogatories by Admiral Nimitz...the
sentence of Dönitz is not assessed on the ground of his breaches of the
international law of submarine warfare.
I Trials of the Major War Criminals
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:
Secretary [of State] also mentioned that we should inquire into the
possible usefulness of a pacific blockade with a carefully and publicly
defined mission. In elaboration he mentioned the possibility of
"making some international law." Should we, for example,
announce that the introduction of jet aircraft into this hemisphere by
the Bloc would be regarded as a violation of the Monroe Doctrine. It
would then be the Bloc's responsibility if they chose to
"escalate" in the face of such an announcement.
The ICJ, in Nicaragua v US
considered the use of naval mines planted in the territorial waters of another
|The duty of every State to respect the territorial sovereignty of others
is to be considered for the appraisal to be made of the facts relating to the
mining which occurred along Nicaragua's coasts. The legal rules in the light of
which these acts of mining should be judged depend upon where they took place.
The laying of mines within the ports of another State is governed by the law
relating to internal waters, which are subject to the sovereignty of the coastal
State. The position is similar as regards mines placed in the territorial sea.
Nicaragua v US at ¶ 213.
The ICJ went on to note that:
...even in time of war, the
Convention relative to the laying of automatic submarine contact mines of 18
October 1907 (the Hague Convention No. VIII) provides that 'every possible
precaution must be taken for the security of peaceful shipping' and belligerents
'to notify the danger zones as soon as military exigencies permit, by a
notice addressed to ship owners, which must also be communicated to the
Governments through the diplomatic channel' (Art. 3). Neutral Powers which lay
mines off their own coasts must issue a similar notification, in advance (Art.
4). It has already been made clear above that in peacetime for one State to lay
mines in the internal or territorial waters of another is an unlawful act; but
in addition, if a State lays mines in any waters whatever in which the vessels
of another State have rights of access or passage, and fails to give any warning
or notification whatsoever, in disregard of the security of peaceful shipping,
it commits a breach of the principles of humanitarian law underlying the
specific provisions of Convention No. VIII of 1907. Those principles were
expressed by the Court in the Corfu Channel case as follows:
'certain general and well recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war'.
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.
Questions Relating To Naval Warfare
Note that the IMT did not find that American and British violations of the 1936
London Protocol were legal. Rather, it found Dönitz had breached the
Protocol but declined to assess a penalty. What effects does that finding
have on your analysis of legality of the British and American actions taken
under the orders above discussed?
|184.108.40.206 Is the intentional destruction of a
civilian vessel engaged in clearly non-military activity (fishing, for example)
ever justified during a war at sea? What if the fishing boat carries a radio and
sights an enemy raiding force approaching an hostile coast? What measures are
justified to maintain surprise? See, the
Doolittle raid on Tokyo in 1942.
220.127.116.11 In September, 1942, Dönitz issued new
1. All attempts at rescuing
members of ships that have sunk, including attempts to pick up persons swimming,
or to place them in lifeboats, or attempts to upright capsized boats, or to
supply provisions or water, are to cease. The rescue of survivors
contradicts the elementary necessity of war for the destruction of enemy ships
2. The order for seizure
of commanding officers and chief engineers remains in force.
Survivors are to be picked up only in cases when their interrogation would be of
value to the submarines.
severe. Remember that in his bombing attacks on German cities the enemy has no
regard for women and children.
Stephen Budiansky, Battle Of Wits, (Free Press,
2000) at p.280.
Do the new orders change your analysis of Dönitz's
culpability under international law as it existed in 1939-45? Would it be legal
today? In formulating your answer, consider the sinking by the Royal Navy of the
General Belgrano during the
War in 1982, and the recent
before the European Court of Human Rights (dismissed
under a time limitation theory).
How far may one take the rationale presented in Nimitz's affidavit in the
Dönitz defense 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..."? Are all rules of armed conflict eliminated by an illegal attack?
If not, how is the distinction drawn?
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.
|In  the Hague
Conference, an international gathering to explore the possibilities of
arms reductions, met for the second time. One of the items before
the Conference was a proposal to renew an article, which had expired
since its ratification at the first meeting of the Conference in 1899,
prohibiting the dropping of projectiles and explosives from flying
machines. The majority of the powers refused to renew the article, and
the chief reason for this action was the belief that since flying
machines engaged on military operations would certainly be fired upon
they should not be deprived of the means of retaliation. Instead,
it was agreed that the limitation already imposed upon land and sea
forces, namely that the bombardment of undefended places was forbidden,
should apply equally to air machines.
Neville Jones, The Origins Of Strategic Bombing, at p.25, William Kimber
"...any general bombing of an extensive area wherein there resides a large
population engaged in peaceful pursuits is unwarranted and contrary to
principles of law and humanity.
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:
role of bombers for maritime defense...had a long-term effect on the
development of U.S. bombers. Hitting a moving ship on the heaving ocean
required great accuracy against small targets rather than a widespread
plastering of the waves, and this led to development of daylight precision
bombing as the prime task of the USAAF bombardment Squadrons in the Second
Robin Neillands, The Bomber War, (Barnes & Noble Books, New York,
2001) at 21.
"The ruthless bombing from the air of civilians in unfortified centers of
population during the course of hostilities which have raged in various quarters
of the earth during the last few years, which has resulted in the maiming and
death of thousands of defenseless men, women and children, has sickened the
hearts of every civilized man and woman, and has profoundly shocked the
conscience of humanity."
warring powers, Franklin D. Roosevelt, September 1, 1939.
major difference between the British and US bombing philosophies should be
noted at this point. Lord Trenchard...believed that attacking enemy
morale--which effectively meant the civilian population--was a way of
winning wars, and that air attacks would have to be concentrated on the
industrial towns. The US Army Air Corps believed in precision bombing of
military and industrial targets vital to the enemy's war industry and
declared that it would never attack population targets. In practice the
difference was small, but the difference in underlying philosophy was
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.
|But if some who saw that
terrible blaze were resigned to the worst, others were not.
Churchill...had just ordered that St. Paul's [Cathedral] must be saved at
all costs. Now he stared at the flames and growled: "We'll get the
bastards for this."
And, on the other side of the city, staring at
the fires from the roof of the Air Ministry, Air Chief Marshal Portal and
his Deputy Chief of the Air Staff shared a growing sense of anger as
centuries of history and culture disappeared before their eyes. Finally
the ...Deputy...said slowly "they are sowing the wind..." Portal nodded...
As Allied bombing policy developed the targeting of
civilian populations became increasingly likely:
| To admit that such bombing
was official Allied policy would contradict previous public statements
that British bombing policy was not designed to terrorize the civilian
population, even in retaliation. There was some dichotomy in the Air Staff
thinking on this point, because three weeks before [the summer of 1942
Anglo-American Bombing Policy document] was circulated, the Assistant
Chief of the Air Staff (Policy)...had sent a letter to...the bomber groups
reminding them that bombing should be confined to 'military objectives',
that 'the intentional bombing of civilian populations was forbidden' and
that 'reasonable care must be taken to avoid civilian casualties'. The
letter than added, however, that 'attacks on enemy morale were authorised.'
How Harris and his Command could make the latter, given the former, was
Neillands, The Bomber War, supra, at 186-187.
Chris Whiting, Britain Under Fire, Pen&Sword Books,
Barnsley (1999) at p.51.
| Led by...pathfinders, the
British [on the night of 24 July, 1943] bombed [Hamburg] with impunity,
dropping a payload of nearly 3,000 tons...
The following day...68 Flying
Fortresses attacked Hamburg's shipyards and submarine-building yards. The
next day, 53 Fortresses returned to hit the city's Neuhoff power plant.
...the fires were still burning so brightly when 722 RAF bombers
returned on the night of July 27 that they scarcely needed their lead
Pathfinders to mark the target. The previous raids had burst water mains
and disrupted the well-organized civil-defense system of Hamburg including
its fire-fighting capacity. The old fires merged with new fires...As
the air heated it rose and cool air rushed in to take its place. The
process, repeated in hundreds of places in Hamburg that night, created
furious winds of up to 150 miles per hour....
The British bombers came again in force on July 29 and Again on August
2. ...The death toll [estimated 50,000] was roughly equal to that suffered
by England during all of the German bombing raids of the War.
Ronald Bailey, The Air War In Europe, Time-Life, Alexandria (1981) at p.
On March 9, 1945, 334 B-29 Bombers of the United States Army Air Corps
participated in a raid on Tokyo. They were led by pathfinder planes each
carrying a load of 180 napalm filled 70 pound canisters. The pathfinders dropped
one bomb every 100 feet to leave a flaming X across the center of Tokyo. Guiding
on the X, the main body of B-29s flew over in groups, about one minute
apart. Their bombs were dropped using a timing mechanism which placed one
five hundred pound cluster of fire bombs every fifty feet. The target area,
about three by five square miles, included a large part of Tokyo's industrial
and commercial districts, and a residential area which held an average of
103,000 people per square mile. The official Japanese casualty count was 83,793
people killed, and 40,918 injured. 267,171 buildings were destroyed and over one
million people homeless.
Keith Wheeler, Bombers Over Japan,
pp. 168-169 (Time-Life Books, 1982).
| The bombing of Japan was "one of the most ruthless and barbaric killings of
non-combatants in all history."
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
General Curtis LeMay ordered the fire raids
Tokyo. In his memoirs, he says:
| Sixteen hundred and
sixty-five tons of incendiary bombs went hissing down upon that city, and
hot drafts from the resulting furnace tossed some of our aircraft two
thousand feet above their original altitude. We burned up nearly sixteen
square miles of Tokyo.
To quote General Power [who led the raid]..."It
was the greatest single disaster incurred by any enemy in military
history. It was greater than the combined damage of Hiroshima and
Nagasaki. There were many more casualties than in any other military
action in the history of the world."
Curtis LeMay, Mission With LeMay at p.10, Doubleday (New York, 1965). Prior to bombing
the cities the United States leafleted them. The leaflets carried a message on
one side which read "Civilians! Evacuate at once". On the other side the
|These leaflets are being
dropped to notify you that your city has been listed for destruction by
our powerful air forces. The bombing will begin within 72 hours.
advance notice will give your military authorities ample time to take
necessary defensive measures to protect you from our inevitable attack.
Watch and see how powerless they are to protect you.
Mission with LeMay at 375. LeMay says that "There wasn't any mass exodus until
we knocked the hell out of the first three towns on the list. Then the rest
practically depopulated in nothing flat." Id.
If in no other way than by target-area bombing can a belligerent destroy his
enemy's armament centres and interrupts his enemy's process of munitionment,
than target-area bombing cannot be considered to offend against the principles
of the international law of war. To hold that it does offend against them is to
subject bombardment from the air to a stricter test than has been applied in the
past to bombardment from land or sea. Military effectiveness has been the test,
and by that test target-area bombing passes muster. It could be condemned only
if it involves acts repugnant to humanity. It was approved, however, by public
opinion generally, in Britain and America.
* * * *
necessary to state or re-state the fact that nothing that has happened in the
second world war has shaken the legal objection to indiscriminate bombing.
Against that kind of war-waging international law still sets its face....It is
the lethal instruments, the lethal processes to be found behind the enemy's
frontier that a civilised air force strikes. That is what makes it a civilised
J.M. Spaight, Air Power and War Rights pp. 240-277
(3rd Ed. 1947).
were going after military targets. No point in slaughtering civilians for
the mere sake of slaughter. Of course there is a pretty thin veneer in
Japan, but the veneer is there. It was their system of dispersal of
industry. All you had to do was visit one of those targets after we'd
roasted it, and see the ruins of multitudes of tiny houses, with a drill
press sticking up through the rubble of every home. The entire population
got into the act and worked to make those airplanes or munitions of
war...Oh, there was considerable dispersal of German industry, but never
to the extent of the Japanese system. In Japan they were set up like this:
they'd have a factory; and then the families, in their homes throughout
the area, would manufacture small parts. You might call it a home-folks
assembly line deal.
LeMay, id. at 384.
|Some, including Jimmy
Doolittle, opposed the indiscriminant bombing by Americans of German
civilians. One air corps general wrote: "We should never allow the history
of this war to convict us of throwing the strategic bomber at the man in
the street. [Such activity would] absolutely convince the Germans that we
are the barbarians they say we are, for it would be perfectly obvious to
them that this is primarily a large scale attack on civilians, as in fact,
it of course will be. Another air force general protested this "baby
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).
|International law can always
be argued pro and con, but in this matter of the use of aircraft in war
there is, it so happens, no international law at all.
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,
sent a memo to the British chiefs of staff seeking their approval for a bomber
|I'm convinced that an
Anglo-American bomber force based in the United Kingdom, and building up
to a peak of four thousand or six thousand heavy bombers by 1944, would be
capable of reducing the German war potential well below the level at which
an Anglo-American invasion of the Continent would become
practicable...With such a force at their command, six million homes would
be destroyed, along with a proportionate number of industrial buildings,
sources of power, transportation and public utilities. It is my belief
that twenty-five million Germans would be made homeless, and that such
raids would kill an estimated nine hundred thousand Germans, and another
million seriously injured.
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:
During armed conflict, enemy military aircraft or missiles may be attacked or
destroyed in airspace anywhere outside of neutral jurisdiction. Enemy
military aircraft may be captured anywhere outside of neutral jurisdiction. ...
Attacks against aircraft may be made by any method or weapon, not otherwise
prohibited, including air to air or ground to air missiles, and explosive or
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
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.
It was hoped that the use of American bombers to make precision attacks in
daylight would reduce French civilian casualties, which were a cause of
growing concern. Prior to the October  raid [on Lille], the British
Broadcasting Corporation had warned the French people that American
bombers would strike only at German forces, and those industrial targets
in France and the occupied countries that supported the German war effort.
The broadcast advised all French citizens within two kilometers of
factories supporting Germany to vacate their homes. They warned that
bombing of small targets from high altitudes might result in some bombs
falling outside the target area.
Morrison, Fortress Without A Roof, St Martin's Press, (New York, 1982)
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
|Undoubtedly, one of the most
important developments in the history of twentieth century warfare has
been the emergence of the precision weapon: the weapon which can be aimed
and directed against a single target, relying on external guidance or its
own guidance system. Launched from aircraft, ships, submarines, and land
vehicles, or even by individual soldiers on the ground, the precision
weapon exemplifies the principle of the low-cost threat that forces a
high-cost and complicated defence. Actually, efforts to develop practical
precision guided weapons date to the First World War, though at that time
the vision of advocates for such systems far exceeded the actual
technological and scientific capability needed to bring them to fruition.
But such weapons did appear in the Second World War, in rudimentary though
significant form, and it was that experience, and the experience of
successor conflicts such as Korea and Vietnam, that gave to us the
generation of weapons that now are incorporated in the arsenals of many
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
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.
| As far as I am aware,
[NATO's 1999 campaign against the Serbs in Kosovo] was the first time air
power has won a war without the use of ground forces. There is no doubt
that most media commentators--and accredited historians--deeply
underestimated the significance of bombing with precision weapons
of extraordinary accuracy. These brought the war to an end without
involving ground forces in the fighting. I think it would be correct
to say that the day of the large bomber fleets with huge numbers of
free-falling unguided bombs is over and the success of the air war in
Serbia will have worldwide repercussions.
Air Marshal Sir Ivor Broom quoted from a March, 1999, letter to Robin
Neillands, The Bomber War, supra, at 205.
Relating To Aerial Warfare
|18.104.22.168 Discuss the legality
of target area bombardment in light of the development of "smart" weapons.
Keep in mind the doctrines of military necessity and proportionality. What are
the economic implications? That is, must a rich country use expensive
weapons where a poor country would not face that requirement? Can any
power which can afford an air fleet not afford to buy precision weapons?
Can any power which wishes to use unguided weapons use them effectively if
it can’t afford an air fleet?
In 1945, the United States fire
bombed a number of Japanese cities, including
in the process destroying large areas of civilian housing and killing massive
numbers of civilians. The stated intention of
Curtis LeMay was to "dehouse" the Japanese civilian population. He
said later that "I wasn't particularly worried about how many people we
killed in getting the job done." Was General LeMay guilty of a war crime
under the laws of war then in effect? Did he have any defense?
Le May says: "Actually I think it's more immoral to
use less force than necessary, than it is to use more. If you use less
force, you kill off more of humanity in the long run, because you are
merely protracting the struggle." Does his argument have any validity?
Give examples to support your answer.
Consider the quote from Spaight above. Was the U.S. fire-bombing of Tokyo
sufficiently limited to fall within his definition of legal conduct?
Italian, German and Japanese bombing of civilians was a
hallmark of Axis aggression in the years prior to the formal outbreak of the
conflict on September 1, 1939. Did this clear violation of the Hague treaties
justify Allied target area bombardment of Axis civilians?
22.214.171.124 Robin Neillands, in The
Bomber War, supra, at 387, quotes Dr. Noble Frankland, one of
the official historians of Bomber Command, as saying that "The great
immorality open to us in 1940 and 1941 was to lose the war against
Hitler's Germany. To have abandoned the only means of direct attack which
we had at our disposal would have been a long step in that direction."
How does rule of law interplay in a conflict
between states which may fairly be said to represent good and evil? Does
the situation justify abandonment of rules of conduct governing armed
conflict? If so, in what principled fashion may the decision be made to
abandon any particular rule? May abandonment of the rules ever take the
side representing good across the line to a point where it becomes as evil
as the other side?
Limits On Places Of Warfare
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
According to the United
States Department of Defense:
There is probably no other field of
human endeavor that produced so much international law in such a short period.
Within twenty years after the first Sputnik launch in 1957, international
diplomatic conferences produced four major widely-accepted multilateral space
law treaties. Taken together, these treaties provide the foundations of existing
Treaty on Principles Governing the Activities of States in the Exploration and
Use Of Outer Space, including the Moon and Other Celestial Bodies (the
Outer Space Treaty, 1967) (German
Agreement on the Rescue of Astronauts, Return of Astronauts, and the Return of
Objects Launched into Outer Space (the Rescue and Return Agreement,
1968) (German language
Convention on International Liability for Damages Caused by Space Objects (the
Liability Convention, 1972) (German
Convention on the Registration of Objects Launched into Outer Space (the
Registration Convention, 1975) (German
Note: There is another treaty
called the Moon Agreement of 1979 which the United States has never signed and
which has attracted only 9 parties, among whom only France is active in space
operations. In addition, several provisions of the 1980 Environmental
Modification Convention apply to space activity. These agreements are not
directly relevant to information operations, however, and they will not be
discussed further here.
The four major space treaties together establish the following principles that
are directly relevant to information operations. These principles have
been so widely accepted that they are generally regarded as constituting binding
customary international law, even for non-parties to these agreements.
- Space is free for exploration and use by all nations. It is not subject to
national appropriation by claim of sovereignty, use, occupation, or any other
- Activities in space shall be conducted with due regard for the interests of
- States that launch space objects are liable for any damage they may do in
space, in the air, or on the surface of the Earth. Different standards of
liability are established for damage done to other items in space, for which a
“fault” standard applies, and damage done on the surface of the Earth and to
aircraft in flight, for which absolute liability applies.
- Space activities are subject to general principles of international law,
including the UN Charter.
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
banning the use of nuclear weapons in outer space.
For useful background see the
U.N. website on
Relating To Warfare In Outer Space
126.96.36.199 Examine in Section 3.3.2 the conduct of the Allied nations regarding the
1936 London Protocol. If national survival is at risk will any treaty prevent
warfare in outer space? Make arguments for and against the effectiveness of such
a treaty. Given the denunciation of the ABM Treaty, could a nation renounce the
ban on nuclear weapons in outer space?
188.8.131.52 List the principle
points a space warfare treaty should contain to make it effective.
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
of future use of weather modification techniques for military purposes.
Some major potential problems with the Convention are that:
|Its limitation to alteration for more than three months may
permit relatively severe but short term activities; |
|It does not address the issue of "nuclear winter"
or global warming which might be caused by nuclear warfare; and|
|It is unclear whether it applies to intentional or
unintended pollution of international or national air and waters.
Relating To Environmental Warfare
|184.108.40.206 In 1991 as the Allied forces launched a ground
attack against Iraq, the Iraqis began pumping crude oil into the Persian Gulf in
an attempt to clog desalinization plants. Was that action a violation of ENMOD?
Shortly thereafter Iraq ignited fires in numerous Kuwaiti oil fields causing
massive air pollution. Did that action violate ENMOD?
220.127.116.11 If your answer to the prior question is in the
affirmative consider the following. During the Japanese invasion of Dutch-held
Java in 1942, the Dutch forces released and ignited crude oil in an attempt to
destroy Japanese invasion barges. Throughout the war submarines of all
combatants considered enemy oil tankers prize targets and in 1942 the beaches of the
East coast of the United States were often black with crude oil. Would those
actions have violated ENMOD if it had been in effect? If not, how do they differ
from the Iraqi actions?
What The Future Holds
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
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.