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Chapter Three

Means And Conduct Of Hostilities


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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:

Major Headings
Question Headings
Summaries of the law

    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 language version."

    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?


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.

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:

The stopping 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 African "savages".

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 (1958).

    Hays Parks, in his usual cogent manner, states:

    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 (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:

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, (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:

bulletThe Hague Convention For The Protection Of Cultural Property In The Event Of Armed Conflict, 1954
bulletUnited Nations Convention On The Prohibition Of Military Or Any Other Hostile Use Of Environmental Modification Techniques, 1977
bulletGeneva Protocol I Additional To The Geneva Conventions of 12 August, 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, 1977
bulletGeneva Protocol II Additional To The Geneva Conventions of 12 August, 1949, And Relating To The Protection Of Victims Of Non-International Armed Conflicts, 1977
bulletUnited Nations Convention On Prohibitions Or Restrictions On The Use Of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects
bulletThe Treaty on Conventional Forces in Europe


Questions To Consider About Regulated And Forbidden Conduct


3.1.1 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.
3.1.2 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).
3.1. 3 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 Two?
3.1.4 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? 


3.2 Limits On Weapons

    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 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:

bulletUndetectable 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.
bullet 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.
bullet 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 reading).
bulletLand 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 United States signed instruments of ratification for (amended) Protocol II 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 they 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).
bulletShotguns: 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. Hays Parks, 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, 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.

Questions About Conventional Weapons 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. 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? 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 effectiveness.


3.2.2 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 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:

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:

Fifth Army 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 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? 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?


3.2.3 Nuclear Weapons

    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.


Arguments For And Against Legality Of Nuclear Weapons

      The following factors must be considered in any analysis of the legality of nuclear weapons:

bulletUnnecessary Suffering banned by 1868 St. Petersburg Declaration and 1907 Hague Article 23(e);
bulletPoisonous Weapons banned by 1907 Hague Article 23(a) and 1925 Geneva Gas Protocol;
bulletBiological Weapons banned by 1868 St. Petersburg Declaration ("slow lingering death), 1925 Geneva Gas Protocol, 1972 Convention on Prohibition of Production & Stockpiling of Bacteriological Warfare;
bulletLongterm Environmental Damage banned by 1977 Geneva Protocols Article 55 and Environmental Modification Treaty;
bulletDamage To Protected Property banned by 1949 Geneva Civilians Convention Article 18 (hospitals), 1949 Geneva Wounded Convention Article 19 (medical units), 1949 Cultural Property Convention;
bulletFails To Distinguish Protected Persons from combatants, 1949 Geneva Civilians Convention;
bulletNeutrality Rules 1907 Hague Neutrality Convention;
bulletGenocide Convention may be applicable;
bulletCrimes Against Humanity doctrine may be applicable;
bulletObligation To Negotiate Nuclear Disarmament in good faith a: Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons. 
bulletDeveloping Law including General Assembly Resolution 1653 and Nuclear Weapons Case.

    For additional commentary see Paul W. Kahn, Nuclear Weapons and the Rule of Law, 31 N.Y.U.J. Int'l L. & Pol. 349 (1999); Stefaan Smis & Kim Van Der Borght, The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 27 Ga. J. Int'l & Comp. L. 345 (1998).


Questions To Consider About Nuclear Weapons 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? 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 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.



3.3.1 Land Warfare


    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 is prohibited.

    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 dum-dum bullets.

    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.

Jackson: 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 field?

Milch: Yes.

Jackson: And you understood, and it was generally understood in the German Army, that was international law, was it not?

Milch: 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.


Jackson: That represented your understanding and interpretation of your duties and obligations as honorable men in combat?

Milch: Yes.

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:

...in 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).


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).

Questions Relating To Land Warfare

 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 trials? 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). 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).



3.3.2 Naval Warfare



   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 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:


...except 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 without warning.

    The same applies to ships sailing without lights in the waters around the British isles.

    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.

Führer 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.

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:

    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 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 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 state:


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 are bound

'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? 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. In September, 1942, Dönitz issued new orders:

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 and crew.

2. The order for seizure of commanding officers and chief engineers remains in force.

3. Survivors are to be picked up only in cases when their interrogation would be of value to the submarines.

4. Be 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 Falklands War in 1982, and the recent litigation 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?



3.3.3 Aerial Warfare


   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 [1907] 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 (London, 1973).

    "...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:

    The 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 World War.

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."

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

    One 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 considerable.

 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 not explained.

 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. 95.


    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."

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:

  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 leaflets read:

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.

This 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. 

*    *    *    *    *    *

It is 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 air force.

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

    We 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 killing plan."

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


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 incendiary projectiles. 

    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.

    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 [9] 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) 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


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 nations.

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.

  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.

Questions Relating To Aerial Warfare 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 Tokyo, in the process destroying large areas of civilian housing and killing massive numbers of civilians. The stated intention of General 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?  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?



3.4 Limits On Places Of Warfare

   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.



3.4.1 Outer Space

    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 space law.

- The 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 language version)

- The 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 version)

- The Convention on International Liability for Damages Caused by Space Objects (the Liability Convention, 1972) (German language version)

- The Convention on the Registration of Objects Launched into Outer Space (the Registration Convention, 1975) (German language version)

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 means.
- Activities in space shall be conducted with due regard for the interests of other states.
- 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 treaty banning the use of nuclear weapons in outer space.

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


Questions Relating To Warfare In Outer Space 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? List the principle points a space warfare treaty should contain to make it effective. 



3.4.2 Environmental Warfare

    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

    Some major potential problems with the Convention are that:
bulletIts limitation to alteration for more than three months may permit relatively severe but short term activities; 
bulletIt does not address the issue of "nuclear winter" or global warming which might be caused by nuclear warfare; and
bulletIt is unclear whether it applies to intentional or unintended pollution of international or national air and waters.


Questions Relating To Environmental Warfare 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? 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?


3.5 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 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.

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