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For centuries people lived and worked in the shadow of the Cologne Cathedral in Germany. Yet, as the photograph opposite shows, in World War II, Allied bombers made a wasteland of the surroundings. Though the law of war is evanescent, isn’t such destruction clearly outside the law?
The answer is no. The reason lies in the blackened railway station at the left and, behind the cathedral, the mangled bridge which once carried trains across the Rhine. That station, that bridge, were legitimate targets of war, their destruction legitimate acts. The other devastation was largely a result of the fact that even in practice it is hard to hit a target; with interference from clouds, rain, or darkness, it is harder yet; and when the enemy shoots back, it is almost impossible. To improve the chances of success, many bombs had to be dropped. Clearly, some went where they were aimed. But accurate or not, all the bombardiers acted lawfully.
The late Sir Hersch Lauterpacht, international law scholar and author of the current British manual on the law of war, once opined: “If international law is the weakest point of all law, then the law of war is virtually its vanishing point.”
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The aviator seeking reassurance as to the legitimacy of the means and methods for accomplishment of his mission, after discovering the paucity of materials applying the principles of the law of war to aerial bombardment, might be led to the erroneous conclusion that any law relating to bombing from the air could not have reached the vanishing point, as it seems not to have existed at all. U. S. pilots and aircrews taken prisoner of war during the Vietnam War were denied prisoner of war status by their North Vietnamese captors and (for a time) threatened with trial as war criminals for allegedly carrying out indiscriminate aerial attacks against the civilian population of North Vietnam. Former Nuremberg prosecutor Telford Taylor argued during the course of the Vietnam War that U. S. aerial operations were being conducted contrary to the law of war but, as a personal observer in Hanoi during Operation Linebacker II, he later attested to the fact that those U. S. air strikes were limited to military targets in and about Hanoi and Haiphong. Notwithstanding this eyewitness account by a less-than-impartial spectator, columnist Marquis Childs and Admiral Thomas H. Moorer, Chairman of the Joint Chiefs of Staff during the planning and execution of Linebacker II, debated on the pages of The Washington Post both the methods and legality of Linebacker II. A prominent former Air Force lawyer and holder of the Charles Stockton Chair of International law at the Naval War College has expressed the opinion that even in attacking military targets, Linebacker II constituted an unlawful use of aerial bombardment.1 In the post-Vietnam War era, one international lawyer and several delegates attending an international conference on new rules to govern warfare suggested that, with the advent of precision-guided munitions (PGMs), the use of any other weapon which results in collateral damage to civilian objects or injury or death to civilians will constitute a war crime.2
If the inquiring aviator-reader dismisses the attitudes about bombing during the Vietnam War as aberrations, he will not gain much reassurance from delving deeper into the past. In 1937. international lawyer J. W. Garner concluded: “As to air warfare I think we can say that there is practically no conventional international law dealing with it . . . The old Hague declarations regarding the launching of projectiles or bombs from aircraft, even if they are in force today, are of no value.” Air Marshal Sir Arthur
W. Hays Parks is Chief. International Law Branch. Office of The Judge Advocate General of the Army, a position he accepted after resigning his commission as a lieutenant colonel in the Marine Corps. In that capacity he is responsible for providing politico-legal advice to the Army Staff and the Joint Chiefs of Staff on operational matters, ranging from evacuation of U. S. nationals from foreign countries to nuclear targeting. He was the Army representative on the U. S. delegation to the United Nations Conventional Weapons Conference, which ended in 1980. Mr. Parks writes frequently for the Proceedings and other magazines.
Harris, commander of the Royal Air Force’s Bomber Command during World War II, wrote after the war his views of the state of the law: “International law can always be argued pro and con. but in the matter of the use of aircraft in war there is, it so happens, no international law at all.”
Air Marshal Harris was not alone in this view. Prosecutors of the Nuremberg war crimes trials declined to allege violations of the law of war for the German aerial attacks on Warsaw, Rotterdam, Belgrade, and London because of the uncertainty of the law (notwithstanding any question of “clean hands” on the part of the Allies). In those instances in which the destruction of German industrial cities wrought by the combined bomber offensive was raised by the accused Nazis as a defense to their programs of genocide, the analogy was properly denied by the court, but with reasoning which made it clear that the members of the tribunal were not at all certain as to the precise status of the law. Their confusion was justifiable. While aviation had advanced warfare during the interwar period with quantum leaps, the law of war as it related to bombing had failed to advance since its most recent codification in 1907. Undoubtedly owing to the reticence of the Nuremberg tribunals to attempt application of obsolete rules of war to modern weapons and tactics, Major William G. Downey, Jr., an international lawyer in the Army, speaking in 1949 before the annual meeting of the American Society of International Law, prefaced his remarks with the statement: “As you are all probably aware, there are no rules governing aerial warfare.” His statement went unchallenged.
The conference which met in Geneva to promulgate what we now know as the Geneva Conventions of 1949 astutely avoided any update of the obsolete Hague rules of 1907 as they related to means and methods of warfare, prompting one member of the International Committee of the Red Cross to conclude rather cynically: “Here are two villages in occupied territory. Detachments of the enemy army are going through them. Unidentified inhabitants shoot down fifteen soldiers. A rapid police inquiry naturally produces nothing. To identify the assailants would require long interrogations and probably torture, since it is a matter of extracting information from patriots, conscious of serving a good cause. Moreover, other columns are arriving and there can be no question of conducting enquiries for weeks. The division commander will simply consider that ‘the enemy’ is present in these two villages. He has a few planes at his disposal; he causes one of the villages to be bombed flat and several hundred people are killed. For the case of the other, he orders, as a reprisal and a warning, the execution of twenty- five people.
“Faced with these two series of homicides, what will be the attitude of justice? There is no room for hypotheses; the law is perfectly clear. The pilots who wiped out the first village and their officers, will be charged with no crime. On the other hand, the soldiers, members of the firing squad and officers who took part in the execution as a reprisal of the twenty-five inhabitants of the second village, will be found guilty of homicide.
“From this state of the law there can be drawn only one precious, but amoral axiom: Never carry out executions or destructions with the care of a craftsman. But long live wholesale massacre!”3
If pilots and aircrews prior to Vietnam were inquiring as to the state of the law, the preceding notes of confusion did little to assuage their curiosity. The problem was exacerbated during the Vietnam War. There was a great deal of justified pessimism among aviators regarding the efficacy of the law of war, given the unduly restrictive rules of engagement under which aerial operations were carried out over North and South Vietnam. However, the restrictions in those rules of engagement far exceeded the requirements of the law of war,4 were political restrictions imposed in a limited war fought for limited objectives, and in some cases were obstructions upon the attack of military targets imposed by individuals within the White House, Department of State, and Department of Defense who either opposed bombing and sought to obstruct it, or did not understand air power concepts or the law of war to begin with. In respect to the latter, perhaps owing to the confusion in the law that existed prior to and during the Vietnam War, the author’s experience has been that the civilian strategists who ran the war in Vietnam were not alone in their lack of knowledge of the law of war.
The average military officer not only does not understand the law, but tends to err to the side of
caution in overly restricting his operations and military options because of what he believes the law to be. Part of the problem is attributable to the reluctance until recent years of planners and others to consult their uniformed specialists in international law with regard to operational matters. The Problem has been compounded over the years by the fact that official law of war sources, when they have existed at all, have eschewed discussion of aerial bombardment. Professor Lauterpacht, in writing the current British military manual in 1958, specifically declined to set forth any rules relating to aerial bombardment. The U. S. Air Force resisted Publication of a law of war manual until 1976. The first U. S. manual to set forth specific rules for aerial bombardment was the Navy’s Instructions Governing Maritime and Aerial Warfare, drafted in May 1941 and adopted 9 December 1941. The present Navy law of war manual, Naval Warfare Information Publication 10-2, published in 1955, contains no rules for aerial bombardment, despite the fact that ffiore than 25% of naval officers are naval aviators. Small wonder, then, that aviators repatriated from the prisoner of war camps of North Vietnam voiced a sense of frustration in that, when told by their captors that they had violated the law of war in their bombing missions, they lacked sufficient knowledge °f the law to reject the charges out of hand.
Knowledge of the law of war as it relates to bomb- ln8 is important for naval personnel owing to the Navy’s projection of force mission, to understand that our intelligence gathering, target acquisition, ar>d attack procedures are consistent with the law war and, based on our experience in Korea and Vietnam, to anticipate and be able to withstand attacks by one’s captors when charged with carrying °ut “illegal” missions. At the same time, it is important to place the law of war in its proper perfective lest our expecting too much of it result in °ur thinking too little of it.
The law of war, in its most basic terms, has three Purposes:
£ Protecting both combatants and noncombatants rrom unnecessary suffering Safeguarding certain fundamental human rights of Persons who fall into the hands of the enemy, par- bcularly prisoners of war, the wounded, shipwrecked, and sick, and civilians and Facilitating the restoration of peace One may be an optimist or a pessimist about the aw of war in past conflicts. Telford Taylor has cap- Ured the sense of this attitude option by noting that ! °ue views the law of war in a negative sense and Justifies his or her feelings by pointing at the hos- P,tals that have been bombed despite the law of war Prohibition on their attack, one need only realize bat all hospitals could be bombed all of the time ut for the law of war.
Professor Taylor’s remark, while generally correct, is important for several reasons. It points out the age-old experience, both in peacetime and war, both in international and domestic law, that violation of the law, and not conformity, generates news. It also emphasizes the frequent shallowness of reporting of such incidents. For example, two separate investigations after World War II found that while hospitals and hospital ships were attacked during that conflict, tor the most part they were bombed or shelled by accident, because they were not properly marked, or because the enemy was using them for military rather than humanitarian purposes.
What is more important to an understanding of the law of war is an appreciation for why nations have agreed not to bomb hospitals. While there is an obvious tinge of humanitarianism and hoped-for mutual respect involved, the prohibition has gained acceptance because the bombing of hospitals is recognized as an inefficient use of military force.
It is essential to an understanding of the law of war, then, and particularly to the recognition of that part of the law as it applies to bombing, to appreciate its consistency with such principles of war as objective, mass, surprise, and economy of force. Mil-
itary assets never tire unlimited, and must be directed and employed in the most efficient manner. According to Functions and Basic Doctrine of the United States Air Force, with economy of force, “no more—or less—effort should be devoted to a task than is necessary to achieve the objective. . . . This phrase implies the correct selection and use of weapon systems, maximum productivity from available flying effort, and careful balance in the allocation of tasks.” Thus the prohibition against attacking civilians not taking a direct part in hostilities, or the civilian population as such, may be stated in a positive fashion as a requirement to attack military targets, and to make every reasonable effort to put bombs on target. It is a matter not
simply of the attacker getting through but, having expended enormous assets on aircraft and weapons development, crew training, detection and identifi' cation of military targets, and penetration of the enemy’s defenses, of doing effective damage to the target. The classic example of fatal violation of this admonishment to efficiency is Reichsmarschall Hermann Goring’s diversion of the Luftwaffe from its attack of the Royal Air Force’s Fighter Command airfields to economic targets in London and the ci-
vilian population per se on 7 September 1940. Said Winston Churchill of Goring and his decision: “By departing from the classical principles of war, as well as the hitherto accepted dictates of humanity, he made a foolish rriistake.” 5
There are, then, rules of law which relate to aerial bombardment, whether strategic bombing, interdiction bombing, close air support, or attack of targets of opportunity in any of the aforementioned forms of bombing. The basic requirement may be stated succinctly: put bombs on target. The difficulty has been in promulgation of simple, concise rules which address the myriad circumstances in which bombing may take place, and which are likely to enjoy universal respect. Part of the difficulty has been the popular misperception of bombing as an •nstrument of war that strikes civilians, while other nieans do not. Another part of the difficulty lies in the complexities of the modern world and our unwillingness to resolve them. As Professor Julius Stone has observed, “It is far easier to moralize ubout air attacks on civilians, and to offer soothing verbal solutions, and to dismiss target area bombing as probably unlawful, than to frame rules for mitigation of human suffering with some hope of belligerent observance amid the realities of modern war.” If there has been an incongruity between the use of a,r power and the law of war, it has occurred as tttuch through the fault of the latter in failing to take aP Professor Stone’s challenge than in any action involving the former.
Air Chief Marshal Sir Neil Cameron recently n°ted that “in the history of airpower the one constant has been—paradoxically—that of change.” In the six years of World War II alone, combat aircraft spanned the era from biplanes to jets; strategic bombing developed from untested theory and broad doctrinal concepts to a scientific process of targeting, massive waves of heavy bombers, all-weather bombing, electronic countermeasures, and nuclear Weapons. Yet in the conventional warfare sense aI°ne, the bombing techniques of 1945 pale when c°rnpared with the capabilities of today. In marked cpntrast, the law of war as it applies to the use of a'f power has stagnated since 1899 when the diplomats attending the First Peace Conference at The Ungue agreed to prohibit for a period of five years the dropping of projectiles from balloons. Interna- bonal law Professor Philip C. Jessup warned in 1941 °f the danger of such torpidity in the development °f the law relating to bombing, noting presciently that the “law often lags behind facts, but if it does n°t correspond to facts it is eventually nullified or 'Modified.” In large measure, the legal vacuum that listed before World War II remains today. Prior to pursuit of this Augean task, however, it is necessary to lay a bit of foundation in order to offer s°me additional perspective of the law of war as it relates in general to bombing.
The law of war centers upon two basic principles which must be balanced against one another, along with a third, but subordinate, principle tied to the first two. The first of these two is military necessity. Classically, military necessity has been established as “the principle that a belligerent is justified in applying any amount and any kind of force which is necessary for the realization of the purpose of war—namely, the overpowering of the opponent.” It is not a license to unlimited destruction, but “such destruction, and only such destruction, as is necessary, relevant, and proportionate to the prompt realization of legitimate military objectives.” The Air Force law of war manual explains it in slightly different terms: “Military necessity . . . justifies measures of regulated force not forbidden by international law which are indispensable for securing the prompt submission of the enemy, with the least possible expenditures of economic and human resources.”
The first two definitions delineate what is authorized, while the latter provides some emphasis for what is not required. Given some speculation regarding what the law is (or should be) in the era of precision guided munitions, the two definitions offer some perspective on the issue. With the advent of PGMs, as was noted earlier, it was suggested that their use should be required under all circumstances, and that the use of less accurate weapons resulting in civilian casualties would constitute a violation of the law of war.
The law cannot be, and consequently is not, so exacting. Leaving aside questions regarding the efficiency of PGMs for all targets, employment limitations of PGMs, as well as the impact of actions taken by the defender, such a proposal is impractical from the standpoint of simple economics. While standoff PGMs may be less expensive vis-a-vis airframes and aircrews in a high-threat environment, PGMs are expensive, and no nation is possessed of an unlimited budget for weapons and weapon systems. A nation is not expected to bankrupt itself to avoid civilian casualties among the enemy. Such a rule of interpretation would discourage development of more accurate weapons, as cheaper predecessor weapons, which might exist in large numbers, would become “legally” obsolete. The rule, then, is one of reason, requiring each nation to do that which is practically possible in the planning, development, and employment of its armed forces.
The second basic principle is that of unnecessary suffering, which postulates that “all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to the belligerent.” It constitutes acceptance of the fact that it is in the best interests of all nations, and in the mutual interest of warring nations, to abstain from intentional attacks on individual civilians or the civilian population per se of an enemy
nation, so long as neither is taking a direct part in the hostilities. U. S. concern for civilian casualties was manifested in the message ordering execution of Linebacker II, which admonished commanders to “exercise precaution to minimize risk of civilian casualties. ...” 6 Avoidance of unnecessary suffering by the civilian population was, and is, honored in execution through the normal targeting process of identifying legitimate targets, determining aircraft and weapons capabilities, then matching these targets to aircraft and bomb loads most suitable for neutralization of the targets, given the anticipated circumstances at the time of their attack.
Thus in Linebacker II, F-111 and A-6 aircraft were used for nighttime neutralization of enemy airfields and SAM sites. F-105 Wild Weasel aircraft attacked enemy radar sites using Shrike radar homing missiles, F-4 aircraft using PGMs attacked high-value , targets located within populated areas, other Air Force, Navy, and Marine Corps tactical aircraft attacked targets near such areas (weather permitting), while B-52s attacked area targets requiring a substantial concentration of bombs.
A third, but subordinate principle tied to the first two is that of proportionality. It is important, particularly to laws relating to bombing, because it con-
stitutes recognition that collateral damage and injury to the civilian population are inevitable in military operations. The rule of proportionality serves as a very general yardstick to planners in its prohibition of civilian casualties to the extent that such casualties would be so excessive when compared to the military advantage to be gained as to be tantamount to the intentional attack of the civilian population. While the principle of proportionality may be applied to the attack of an individual target under spe-
cial circumstances, historically the test has been applied to an overall campaign or war because of the practical impossibility of application to individual targets in the targeteering process, and because of the myriad factors within the control of the defender which affect execution of the attack of an individual target. Two examples serve to illustrate these points.
Pre-D-Day air plans in June 1944 called for Allied attack of five bridges spanning the Seine River, as Well as bridges across the Albert Canal and Meuse River, in part to convince Field Marshal Gerd von Runstedt, commander of the German Fifteenth Army, that the Allied cross-channel assault was to be at Calais. While these attacks did serve to cut off Normandy, they were principally acts of deception. If the value of individual targets could be quantified, those attacked for purposes of deception would be very low, with little justification for any collateral civilian casualties. Yet the value of deception targets was substantial when measured against the success ?f the allied offensive to return to Europe. Likewise, •n review of the plan for Allied air attack of railway centers in occupied France prior to D-Day, Prime Minister Winston Churchill endeavored to restrict attack to railway centers where the estimated casualties would not exceed 100 to 150 civilians, or a total of 10,000 civilian casualties for the entire target subsystem. Air Marshal Arthur Tedder, Deputy Supreme Commander of the Allied Expeditionary Force, argued that the limitation of civilian casualty was principally in the hands of the defender, and that Churchill’s proposal would emasculate the Plan. Churchill reversed his position after consulting with President Franklin D. Roosevelt, who supported the military leaders. Ultimately, the number °f civilian casualties was substantially less than Churchill’s proposed limit.
Thus far, the discussion has centered upon the basic terms and concepts of the law of war. These have endured through the past century with little challenge or change and, as was shown, have been applied to bombing. The difficulty has been with formulating rules that apply these basic principles R> modern warfare, and particularly to aerial bombardment. In endeavoring to establish these more detailed rules, it is important to understand certain Precepts governing the writing of additional laws of war which history teaches us cannot be ignored.
In the negotiation of law of war agreements, the burden is upon the proponent of new restrictions or Prohibitions, or more precise standards, to establish *a) that the proposal results in humanitarian gain, ar>d (b) that the humanitarian gain does not prejudice be national security interests of the negotiating na- l|°ns. In order for nations to agree on a new rule governing their conduct in hostilities, the rule must etlJoy a likelihood of universal acceptance. New rules, however humanitarian they may appear to be, will not be accepted unless they are consistent with each nation’s inherent right of self-defense. Nations generally have accepted the notion of medical treatment of the sick and wounded on the battlefield not only because it is humanitarian, but because it is to each nation’s military advantage.
The prohibition on bombing from balloons adopted at the first Hague Peace Conference in 1899 reflected the then-existing state of the art of aerial bombardment, i.e., it could only be conducted from balloons which, incapable of guidance, struck indiscriminately at combatant or noncombatant, friend or foe, and therefore served no useful military purpose. The prohibition was limited to five years, by which time controlled delivery of bombs from the air was viewed as possible and a different criterion, that of effective bombardment, resulted in the nations of the world adopting a more reserved position regarding restrictions on bombing from the air. The 1899 Hague prohibition was renewed in 1907, but was ratified by only two nations—the United States and Great Britain—and, though technically still in effect, survives as a historical anomaly. It waned in effect because it was at cross-purposes with yet another lesson of history: no effective weapon or means of warfare has been restricted or eliminated by international regulation. A Hague convention regulating mine warfare and torpedoes that have missed their mark, for example, was adopted by the second Hague Peace Conference in 1907 because it contained regulations relating to weapons which no longer served a useful military purpose, or to uses of weapons which offered no legitimate military advantage.
The difficulty in endeavoring to formulate rules which afford some additional protection, or express in greater detail the principles of military necessity and unnecessary suffering, lies in the many national security interests with which a rule must coincide —or, at least, avoid conflict. These national security interests vary from nation to nation and are influenced by each nation’s domestic politics and political philosophy, leaders, economics, history, geography, level of technology, natural resources, foreign policy, and military doctrine. U. S. national security interests are unique in that they assume global responsibilities. During the Washington Naval Conference of 1922, for example, when it was determined that the participants were unwilling to disavow military aviation entirely, the United States proposed rules of war for aerial bombardment. The United States, in its fit of postwar idealism, with friendly (and weaker) neighbors to the north and south, huge expanses of water to the east and west, and a powerful navy, was prepared to accept restrictions in law on aerial bombardment. Italy, France, and Great Britain, existing under markedly different circumstances, resisted the U. S. proposal.
But by 1935 Great Britain found itself with a new affection for humanitarianism in aerial bombardment as war clouds gathered and darkened over Europe. Fearing a “bolt from the blue” knockout blow on London by the Luftwaffe, Great Britain approached France and Germany to negotiate a treaty for the humanization of air warfare. Germany, aware of the vulnerability of its industries in the Ruhr, was amenable to some restrictions. Neither Germany or Great Britain harbored any illusions
that restrictions would survive anything more than the early stages of the coming war, however, after which time the offensive and defensive capabilities of each would be better prepared to deal with the aerial onslaught each regarded as inevitable. Negotiations were stillborn, because France refused to give serious consideration to the proposals. But the example serves tq illustrate yet another premise of such negotiations: a nation’s “humanitarianism” oftentimes is directly proportionate to the military threat it perceives and its own military weakness.
As a parallel, rules of humanitarian law are not likely to succeed if one nation or a group of nations gains a tactical advantage or offsets a military advantage in the process. The classic example is the effort of Great Britain to continue its rule of the seas by legislating away its principal threat, the submarine, first, by a total prohibition, and finally, by rules contained in the 1930 London Naval Treaty which required submarines to adhere to traditional rules of capture. The requirement was also one in which the law was incapable of staying abreast of technology and changes in methods of warfare. On these and other counts the London Naval Treaty was destined to fail, and did, as Lieutenant H. G. Rickover predicted in an article in the September 1935 Proceedings. Its provisions regarding submarines, although reaffirmed in 1936, were rejected by the practice of the Axis and Allied powers during World War II, and today are of historical interest only. The Diplomatic Conference convened between 1974 and 1977 by Switzerland (see footnote 2) to update the law of war witnessed a constant effort by the less- developed nations to offset the military and technological advantage of the developed nations by rules cloaked in humanitarian law. These efforts reached one of several peaks when Togo, a small West African country, proposed that in a war between a nation with an air force and a nation with no air force, the nation with an air force must forgo its use. The proposal quickly died.
The preceding practical restrictions apply to the negotiations of any rules governing the conduct of war. There is yet another rule which is of special significance to bombing, and that is that standards of conduct must apply equally to the attacker and the defender. The rule seems obvious, but it has experienced difficulty in its promulgation and observation. More often than not, international negotiations of new rules have been carried out by individuals with little knowledge of military operations or the law of war, except perhaps in the theoretical sense. For example, delegates have on occasion tended to confuse offensive combat operations or waging war aggressively with acts of aggression, and openly favored the defender over the attacker in drafting new rules. Moreover, in the North-South struggle at the 1974-1977 Diplomatic
Unknown Caliber AAA Gun on Dike
Dikes are legitimate military targets, but the United States was put on the defensive early in the war by North Vietnamese allegations of “indiscriminate ” bombing of the dikes. Consequently, attack upon them was prohibited by the White House for most of the war. The North Vietnamese, assured of their immunity from attack, responded by placing AAA sites and GC1 equipment on the dikes. Eventually some sites were attacked with antipersonnel munitions which damaged the weapons and equipment while minimizing structural damage to the dikes.
Unknown Caliber AAA Gun on Dike
Unoccupied Position
Conference, the less-developed nations felt they ^ould be the victims rather than the perpetrators of bombing attacks, and consequently tended to oppose any rules that placed obligations on the detender. The problem also has occurred in practice, as we well know from our experience in Vietnam.
There has been substantial difficulty in arriving at rules relating to bombing because of the inability to balance the obligations and rights of the attacker and defender. Ideally all civilians should be removed teom military targets and those targets “identified” 'Perhaps with an “X” or bull’s-eye painted on the te°f). In fact, there were proposals before World Wars I and II to reduce the attractiveness of urban Centers as aerial targets, such as through the removal of all military targets from cities. The difficulty is that aerial warfare is not a gentlemen’s game horseshoes in which each side obligingly identi- bes its military targets and sets them apart from the c,vilian population. Nor do nations go about city Planning over decades in contemplation of war. ^ome legitimate targets, such as transportation and energy facilities, support a nation’s economy as a whole, in peace and war. Moreover, workers must 1Ve near the “military targets” in which they are employed. In densely populated nations, separation the population from military targets is not always Possible. Hence, military targets are dispersed, Camouflaged, and defended at great risk to the ci- V|ban population—a risk imposed by the defender.
The nations that met in Geneva from 1974 to 1977 0 draft new rules of war reached tentative agree- rtlent (subject to ratification by each nation) that in Slacking a target, the attacker has an obligation (consistent with the security requirements of the attacker’s force) in planning and executing his mission to minimize to the extent feasible collateral injury to the civilian population and damage to civilian objects. The obligation, however, is a good faith standard based on intent, not results. The overall responsibility to minimize collateral injury to the civilian population not taking a direct part in the hostilities remains one shared equally by the attacker and the defender, and the nation that uses its civilian population to shield the attack of military targets violates the law of war at the peril of the civilians behind which it hides.
There are two final prerequisites to the development and implementation of rules for aerial warfare. While the requirement of universal acceptance assumes that a nation accepting a treaty obligation will honor its rules as a matter of national policy, there is a concomitant requirement that those rules must be drafted in such a way that they apply equally to all. Thus any rule of the law of war must be capable of being adhered to by the worst aviator in the world’s worst airforce flying under the most adverse circumstances. This suggests the often-neglected need that exists for practicality and generality in rules-making. While the law of war can be complex on occasion, its likelihood for respect under the most adverse circumstances is directly related to the degree its provisions are simple, balanced, follow common sense, and are sufficiently flexible to fit all situations.
Until conclusion of the Diplomatic Conference in 1977, the nations of the world were less than successful in adopting workable rules relating to aerial bombardment. As a result, much of the legal writing and practice for more than half a century (including two World Wars) attempted an analogy to Hague Convention IX of 1907 Concerning Bombardment by Naval Forces. Its rules have little relevance to modern warfare, however, and the analogy always has been a strained one.
There have been efforts to negotiate rules. The basic difficulty has been that air power has meant different things to different nations, based on each nation’s security interests, and this diversity has
minimized the chances for agreement. Another difficulty has been that, while the numerous Hague conventions were negotiated by military experts (Captain Alfred Thayer Mahan, for example, was the U. S. naval representative to the 1899 Hague conference), subsequent negotiations have been undertaken by delegations composed of diplomats, arms control or disarmament specialists, and international lawyers, few of whom have any military experience or knowledge of the realities of combat,7 and many of whom are interested in agreement for agreement’s sake.*1
The first serious effort at arriving at rules for aerial warfare occurred as the result of the unsuccessful efforts of the United States to discuss such rules at the Washington Naval Conference. Participants in that conference agreed to hold a subsequent, separate conference that would concentrate on rules of war relating to aerial warfare. A commission of jurists met at The Hague from December 1922 to February 1923 to draft those rules, two of which relate to bombing. That they were never adopted by even one nation can be attributed to two factors: demand and practicality. The demand for a code came essentially from public opinion and not from governments. Aviation and air power thinking were relatively new, with significant advances occurring almost daily, and governments were reluctant to agree to standards which eventually might turn out to be unduly restrictive of this new arm of national defense—particularly when other nations not party to the agreement would not be encumbered by the limitations contained therein. Second, the language relating to bombing was unrealistic by going beyond the restrictions of the 1907 Hague Convention regarding naval bombardment. It created the unacceptable situation that one could carry out legitimately a very high level of destruction with naval gunfire, while the same destruction by aircraft would be illegal. Moreover, the rules were obsolete at the time they were drafted in that they discussed bombing in terms totally out of synchronization with contemporary air power thinking.
A second effort at rule making took place at the ill-fated League of Nations Disarmament Conference of 1931, and continued on a sporadic basis through the opening days of World War II. At first, efforts were made to prohibit all forms of aerial bombardment. These were plagued from the outset by the bugaboo of all arms control negotiations— verification—because so many aircraft suitable for civil aviation were perceived to be easily convertible to bombing (as was confirmed shortly thereafter in the Condor Legion’s use of the JU-52 as a bomber in the civil war in Spain). Endeavors to draft rules for aerial bombardment, both at the Disarmament Conference and in subsequent trilateral discussions among Great Britain, Germany, and France failed primarily because of an inability to reach common understanding on what constituted a legitimate military target, determine who was a “civilian” (and therefore protected from intentional attack), and to frame rules that would be workable in war. Ultimately, British Prime Minister Neville Chamberlain suggested three basic rules during debate in the House of Commons on 21 June 1938:
► It is against international law to bomb civilians as such and to make deliberate attacks upon civilian populations.
► Targets which are aimed at from the air must be legitimate military objectives and must be capable of identification.
►Reasonable care must be taken in attacking those military objectives so that by carelessness a civilian population in the neighborhood is not bombed.
These rules were adopted by a League of Nations resolution on 30 September 1938. While the first rule is an accurate reflection of the law (as it existed in 1938 and as it exists today), the difficulty with the last two rules lay in their favoring of the defender (who would endeavor to camouflage and defend targets) over the attacker (who was required to identify targets). Although “reasonable care” may be an appropriate standard suggesting good-faith intent or effort on the part of the attacker, “carelessness” (or “negligence,” as the League of Nations resolution was worded) is a less-than-perfect legal standard so long as the attacker is not in exclusive control of all elements affecting his degree of care. Negligence is a difficult enough issue in peacetime bombing practice when in broad daylight a bomb lands on a farm five miles from the target, for the damage may have been caused by pilot error, equipment failure, defects in manufacture of the weapon or weapon system, faulty maintenance, or a combination of these and still other factors. Insofar as it relates solely to the actions of the pilot, aircrew, or even the attacker, however, the standard of negligence has little business on the battlefield, where legitimate targets are not readily offered up for attack. Moreover, it is erroneous because it conditions the legitimacy of an attack on its results rather than its intent, and threatens punishment of the pilot as a war criminal because the defender succeeded in thwarting the pilot in his mission—putting bombs on target. As all nations were to learn in World War II and subsequent conflicts, a standard must be consonant with capabilities and the realities of combat if it is to enjoy any degree of recognition and respect by the parties to a conflict.
There was one last effort at rule making before World War II. On the commencement of general hostilities on 1 September 1939, and with the experience of Japanese bombing in China and German devastation of Guernica in mind, President Franklin D. Roosevelt sent the following message to the war-
ring nations: “I am . . . addressing this urgent brief to every government which may be engaged in hostilities publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities. • • [emphasis supplied],
Roosevelt’s plea was an unrealistic one, because
in its call to abstain from attacks on unfortified cities it was applying a standard generally inapplicable to aerial bombardment. (An unfortified or undefended city is one which is open for physical occupation by the enemy without resistance, whereas the issue in aerial attack is whether the city, even if undefended, contains military objectives susceptible of attack.) Perhaps recognizing its limited effect, the warring nations accepted Roosevelt’s plea. With the possible exception of the bombing of Rotterdam by the Luftwaffe on 14 May 1940, the standard imposed by President Roosevelt was never intentionally violated—not because of any altruistic or humanitarian spirit on the part of the belligerents, but because few cities qualified for the limited protection of the Roosevelt standard. When consideration was given to violation of the Roosevelt standard, it was proposed by the civilian leadership and opposed by the
Populated areas, when used to shield military targets, relinquish their usual immunity from attack. But well- publicized restrictions on attack of targets in populated areas imposed by the Secretary of Defense early in the Vietnam War exceeded the requirements of the law of war, and the North Vietnamese were quick to exploit the advantage provided them. In one of these photographs, a village near Haiphong is shown in January 1968 containing more than 600 drums of POL. In the other, about 50 Soviet-made army vehicles are concealed in the Haiphong cultural center.
military. On 15 April 1942, Anthony Eden, then British Foreign Secretary, wrote to the Air Ministry recommending the attack solely for psychological purposes of a series of German towns, under 150,000 population each, “not too heavily defended . . . even though those towns contain only targets of secondary importance.” The Royal Air Force rejected the suggestion not only because of its nonhumanitarian character but because it constituted an inefficient use of the available forces.
To the extent that nations have reached agreement in recent years on workable rules to govern aerial bombardment, those rules may be summarized as follows: •
► Bombing of the civilian population as such, individual civilians, or civilian objects, is prohibited;
►Bombing of military objectives is legitimate, so long as the bombing is accomplished in a manner which does not result in collateral civilian casualties so great as to outweigh substantially the military advantage anticipated from the attack.
These are very general standards, but standards which the United States and other nations have come to accept through the years. Simple as they may be, however, they are not without their difficulties. One basic problem, previously alluded to, lies in the translation of these simple principles into basic rules of law that will minimize collateral injury to the civilian population in future conflicts. The Diplomatic Conference that met in Geneva from 1974 to 1977 attempted this arduous task. There the conference participants found great difficulty in formulating simple rules that are apolitical, that apply in all forms and at all levels of conventional (nonnuclear) war, under all circumstances, that strike a balance between the obligations of the attacker and the defender, and that are capable of staying abreast of changes in strategy, tactics, and technology. Necessarily, such rules are general rather than specific, imprecise rather than precise, and highly subjective. In the case of the rules developed by the Diplomatic Conference, each word in each phrase of each sentence is subject to interpretation and qualification, particularly when translated into the six official languages of the Diplomatic Conference—English, Spanish, French, Arabic. Russian, and Chinese.
There is a collateral difficulty, and that lies with the role of the law. No law or set of laws succeeds simply because it is the law. When that occurs, the point has been reached at which one may invoke the line from Charles Dickens’s Oliver Twist that “If the law supposes that, the law is a ass, a idiot.” Laws function through an expectation that they will receive general support. The difficulty of attainment of this expectation is manifested domestically in the numerous court challenges made to virtually every city or county ordinance or state or federal regulation or statute enacted. The difficulty is exacerbated when those laws affect a nation’s security interests, or are perceived as creating unnecessary risks to an individual in combat.
A second dilemma in posing rules related to bombing lies in the average individual’s expectation of what air power and aircraft are capable of doing. This misunderstanding has been largely self-inflicted by the aviation community, deriving from the early days of air power and representations made by air power advocates during the internecine bat-
lles over shrinking interwar budgets. Air power was advanced as the panacea for all ills short of rheumatism and corns; air power could cure the world’s ‘Ns better, more quickly, and more cheaply than any other remedy. Our experience since those days half a century ago has taught us that there is no quick 0r cheap way to the attainment of early victory or Perpetual peace, but the promises of the “New ^eal” of warfare—air power—linger on. Probably ‘Post people believe that any pilot, properly trained, Can put his bombs on target every time. This expectation is fueled from time to time by project Puffing" in describing performance capabilities in
terms of optimum conditions in order to continue funding for a project. Thus the B-17 was described as capable of “pickle-barrel accuracy" from 35,000 feet. This representation was correct so long as the bombing was of a friendly, well-defined, and immobile pickle barrel by a mechanically perfect B-17 flown straight and level by a well-trained crew on a calm day with unlimited visibility. These standards seldom were attained, however. For example, General Curtis LeMay provided the following description of the bomb group he took to England in 1942: “The bombardiers had never dropped a live bomb. They’d dropped some practice bombs over a desert on a nice white circle you could see for fifty miles, something entirely different from trying to hit a factory in the midst of a built-up area in the industrial haze of Europe.”
The prewar representations regarding bombing capabilities were not made in bad faith, for little was known at the time of bombing accuracy in combat. Ultimately, however, responding to complex dispersion and concealment techniques in Germany,
intense defenses, and the adverse weather of Northern Europe, precision bombing increasingly was supplanted by radar-directed target area bombing. A similar series of events occurred in the strategic bombing of Japan. Initial efforts were directed at the destruction of industrial targets by selected bombing. However, the weather proved an implacable enemy. Cloud cover obscured the targets almost constantly, and the first type of bombing equipment for the B-29, the AN/APQ-13, was not sufficiently discriminatory to pick out targets on land. Strong winds at altitudes below the release point further degraded accuracy. General LeMay turned to urban incendiary bombing as a last resort. In each instance, the decision to undertake a more destructive but less efficient method of bombing came (in the words of Sir James Butler, in reflecting upon the Royal Air Force portion of the combined bomber offensive over Germany) with the realization that “whatever policy was intended, execution had to conform to what was operationally possible— an axiom of which the relevance was not always recognized—and . . . the operationally possible depended on advances in tactics and technology.”
Unfortunately, the popular myth—perpetuated in some measure by U. S. air power advocates—that U. S. air forces over Germany engaged in a campaign of precision (as opposed to target area) bombing under all circumstances, while the RAF Bomber Command carried out area (as opposed to target area) bombing, has tended to be an albatross around the necks of modern-day pilots, who are expected to place every bomb on target at all times. Substantial technological improvement during the years since World War II—and commensurate puffing thereof by project managers—has served to further the misperception regarding bombing accuracy held by the man on the street and undoubtedly played a part in the public's disillusionment with U. S. interdiction bombing over North Vietnam.
Despite the development of sophisticated computer systems, many variables influence the accuracy equation. With conventional (“dumb”) munitions, one combat-experienced pilot has noted that “bombing remains an inherently inaccurate process. . . . Aiming errors, boresight errors, system computational errors all act to degrade the system. Unknown winds at altitudes below the release point and the ‘combat degradation' factor add more errors to the process. In short, it is impossible to hit a small target except by sheer luck. . . .”9 Another pilot with combat experience has observed that “Bombing . . . must take into account the ballistics of the weapon, the dive angle, airspeed, altitude, aircraft attitude, g conditions, symmetricalness of flight, and wind. Of these, the only constant is the weapon’s ballistics, but even this is subject to errors due to manufacturer’s tolerances.”10 While accuracy has been and is being improved by the development of precision-guided munitions, their accuracy can be adversely affected by smoke, rain, fog, flares, and electronic countermeasures. The lesson to be learned is that in formulating and implementing rules relating to bombing, these rules must be based on realistic operational capabilities rather than unrealistic expectations.
The Diplomatic Conference that met from 1974 to 1977 arrived at rules. Whether those rules can withstand the very practical test of time and war remains to be seen. The rules adopted prohibit the attack of individual civilians or the civilian population as such, so long as they are not taking part in the hostilities. Civilian objects may not be attacked, although they cease to be civilian objects and become legitimate targets if they are used for military purposes or have military value. Target area bombardment of two or more military targets located within a populated area is prohibited so long as those targets are separate and distinct and capable of individual attack. Indiscriminate bombing of the kind carried out by Nazi Germany with its V-l and V-2 rockets, and Japan with its aerial balloons drifting aimlessly and with nothing more than the general direction of the air currents, is prohibited—a classic case of outlawing the outmoded.
Although there remains some degree of subjectivity with regard to the rule on target area bombardment, the greatest potential for difficulty of interpretation lies in three terms that have resisted understanding and definition through the years: military objective (or target), civilian, and civilian object.
Problems in defining military objective are somewhat akin to the problems of defining obscenity; everyone knows what it is, but no one seems to be able to come up with a definition with which all can agree. One of the early attempts is contained in the 1923 Hague Air Rules. It was unacceptable because it limited the term to military objects such as tanks, artillery, troops, and material. In this sense it failed to grasp the nature of the change in warfare which had occurred as the result of World War I and the military evolution of the airplane. Marshal of the Royal Air Force Hugh Trenchard provided much of the impetus for recognition of the value of strategic bombing by observing that it is far more economical to destroy the factory that manufactures 100 aircraft or tanks a day, and the communication networks that support an enemy nation’s means of resistance, than it is to go about the battlefield destroying those aircraft or tanks and their supporting fuel and supplies one by one. “Military objectives,” Trenchard said in 1928, “are any objectives which will contribute effectively towards the destruction of the enemy’s means of resistance and the lowering of his determination to fight.” (Trenchard’s discussion emphasized “strategic” targets inasmuch as there was and is little dispute as to military objectives attacked through close-air support; if a house, building, or other object normally used only for civilian purposes has been converted to military use, or is of potential military value in engagements between ground forces, it may be attacked as a military objective. To this end aviation serves as an alternative to artillery, tank, or naval gunfire, and the military Procedures for target identification and attack are the same.)
Despite Air Marshal Trenchard’s definition and the lengthy discussion of the term by Trenchard and others through the interwar years, legal definition had to await the practice of nations in wartime. The ill-fated League of Nations rules used the term without defining it. Finally, in 1977, language was provided in article 52 of Protocol I: “Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’
The definition remains general and subjective, as •t should be. To be classified as a military objective, there must be a reasonable, rather than speculative nexus to the war-making capability of the enemy nation. Through practice it has become accepted as deluding not only military targets per se (military bases and industrial, communications, transportation and natural resource facilities), but geographic 0r area targets (for example, a mountain pass or °ther natural choke point), and political targets (such as government buildings housing agencies that Provide support for a nation’s war effort). Through agreement at the Diplomatic Conference, protection against attack was provided in article 56 for power facilities containing “dangerous forces,’’ namely dams, dikes, and nuclear power plants, if their attack might cause release of those dangerous fprees ar>d severe losses among the civilian population, Provided those facilities do not offer regular, direct, ar>d significant support to military operations. This very limited prohibition on attack may be best explained through examples from history.
During the Korean War, consideration was given '° attack of the North Korean agriculture-reservoir system with a view to interdicting enemy lines of eommunication as well as destroying the rice production of the People’s Democratic Republic of Korea. Recognizing that destruction of the rice Crops more than likely would have its most adverse effect on the civilian population (a nation at war, Particularly a totalitarian state, always will feed its [Military forces at the expense of its civilian popu- *afion). General O. P. Weyland, Far East Air Forces commander, ruled out the attack of those portions °f the network of rice-irrigation dams that would result only in destruction of North Korean rice Crops, but authorized air strikes against those dams where resultant floodwaters would significantly interdict enemy lines of communication. The subsequent destruction of the Toksan and Chasan irrigation dams in May 1953 rendered unserviceable the two main railway lines and parallel highways into the military, industrial, and political center of Pyongyang. The rationale for General Weyland's decision coincides with the first exception to the Article 56 prohibition in permitting the attack on facilities containing “dangerous forces” where there is a legitimate military advantage to be achieved, and that gain does not result in severe losses among the civilian population. The second exception relates to the neutralization of such facilities without release of their dangerous forces. Thus, whereas flooding from the breach of the Mohne and Eder dams by
Royal Air Force Lancaster bombers of 617 squadron on 16, 17 May 1943, resulted in an estimated 1,069 civilian deaths, U. S. aircraft on 10 June 1972 were able to disable the Lang Chi hydroelectric facility, 62 miles northwest of Hanoi, through destruction of its generating plant with PGMs, with no structural damage to the dam, no release of its “dangerous forces,” and no collateral injury to the civilian population. Given the complexities of modern power grids, while it may be difficult to conclude that a particular energy facility offers “regular, direct and significant support to military operations,” it would be equally difficult to imagine a facility that could escape attack given these exceptions. Article 56 does not actually prohibit the attack of dams, dikes, and nuclear power plants, then, but serves as an admonition to the commander and his targeteers to consider the impact of such an attack on the civilian population, and to take appropriate steps to minimize civilian casualties.
This requirement is not limited to the attack of facilities containing dangerous forces. Another article adopted by the Diplomatic Conference includes a provision calling upon those who plan or decide upon an attack to do everything feasible to verify that the objectives to be attacked are military ob-
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Even if they are in built-up areas, such as Cologne, or here, in Pyongyang, North Korea, transportation facilities are legitimate targets of war. These two photographs were taken in October 1950 from opposite ends of the same railroad marshalling area in the North Korean capital. Though the tracks might easily be repaired, the ruined locomotives in these views would haul no trains filled with Chinese troops headed for battle with the Americans or South Koreans.
jectives, while taking all feasible precautions in the choice of means and methods of attack with a view to avoiding, or in any event minimizing, incidental civilian casualties. The operative word is feasible, which has been defined as “that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations.” U. S. targeting procedures developed through years of experience, assist the commander in meeting these requirements as part of his decision-making process. If that commander, in the light of all the information available to him at the time, is satisfied that a potential target is a military objective, he would not be prohibited from attacking it with the means and weapons at his disposal, most suited to the circumstances and the target. Necessarily, commanders and others responsible for planning, deciding upon, or executing attacks must reach their decisions based on assessments of the information then available to them.
So long as there is a conflict, there is no legal prohibition on the attack of military objectives or targets, even if the effect of bombing is infinitesimal or not immediately forthcoming. The Doolittle raid on Tokyo on 18 April 1942 arguably constituted a disproportionate investment of then-extant U. S. military assets for the seemingly insignificant military gain, but an insignificant military investment for the substantial boost it provided lagging American morale. The feint by aerial attack upon targets such as bridges and railroads in the Pas de Calais prior to the Allied landings at Normandy on 6 June 1944 was a legitimate use of bombing of military objectives. Similarly, the attack upon long-denied military targets in and around Hanoi and Haiphong during Linebacker II was legitimate even had its sole purpose been to communicate U. S. resolve to an intransigent North Vietnamese government and force it to return to the conference table. Military gain need not be instantaneous and direct to be legitimate; success in wartime seldom can be measured on such a cost-benefit basis.
Having established that one may attack a military objective, one must look to the other side of the coin to determine what may not be attacked, that is, the civilian population, individual civilians, and civilian objects. Notwithstanding the rather transparent attempt by many bombing critics to connect all bombing with the theories of Italian air power advocate Giulio Douhet. which included the bombing of the civilian population in order to force the capitulation of the enemy nation, not even the sternest bombing advocate in past conflicts has suggested such a militarily inefficient use of bombing. The difficulty, however, has been in determining what constitutes a "civilian” in modern war. Since a warring nation’s leaders usually call for the combined effort of the whole nation, enlisting the aid of every man and woman for war service, it has been difficult for some to understand how simultaneously a claim can be made for protection for the so-called noncombatant civilian population. It is at this point that humanitarian concerns and the principle of war of economy of force coincide, for the attack of the civilian population as such would constitute a highly inefficient use and unnecessary risk of the limited military assets available, assets which are better used against high-value targets most likely to affect the enemy’s ability to wage war. This is particularly true today, when assets—whether aircraft, aircrews. or weapons—are expensive, and the assets on hand at the outbreak of hostilities are likely to be those with which the outcome of the conflict is determined.
The difficulty lies in the commingling, whether intentional or unintentional, of civilians with military targets—targets such as factories, transportation and communications facilities, energy resources, and warehouses. The problem is compounded by dispersal and defense of those targets, the latter often by the civilian workers employed in them. The Diplomatic Conference in Protocol I defined a “civilian” to be anyone not entitled to prisoner of war status, a difficult thing for a targeteer
0r pilot to ascertain. Likewise, civilian objects are fhose things that are not military objectives. There ls an intentional wide margin for subjectivity on the Part of the military commander in these “non-deflations,” particularly with regard to civilian obJects, for only the military commander can deter- ^'ne the object’s military value as it relates to his Accomplishment of his mission during the time frame !n which it must be executed. The only admonition ls that the commander undertake good-faith compliance with the law of war—which, again, coincides Wjth the judicious use of the military assets provided him.
Protocol I does require that the defender to the Maximum extent feasible endeavor to remove the Ctvilian population, individual civilians and civilian °°jects under its control from the vicinity of military PRjectives, as well as to avoid locating military objectives within or near densely populated areas.
nder no circumstances may civilians or civilian °bjects be used to shield military movement or mil- 1 ary objectives. If they are, those military targets ^ay be attacked, and the collateral civilian losses fre the responsibility of the defender, not the attacker.
But factories and rail yards cannot be moved. °rkers cannot be evacuated. Recognizing this, eath or injury of civilians employed in a military ^r8et as the result of bombing of that target con- shtutes no violation of the law of war. The target
is the facility, not the civilian employees in it; working there is an occupational hazard. To the extent that the defender refuses to “cut his losses” through evacuation of the civilian population, or blurs the distinction between military targets and civilian objects, he does so at their peril. The problem, however, lies in the vast gray area where there may be disagreement or subjectivity. With respect to blurring of the distinction, for example, one man’s ruse may be taken as a perfidious act by his opponent. During World War II aircraft factories on the west coast of the United States were intricately camouflaged to appear when viewed from the air to be civilian residential areas. In Switzerland there is what appears to be a lovely house with a carefully- manicured lawn and lace-curtained windows. The house is not a home, however, but a command bunker designed to look like a house, with tank traps and barbed wire concealed in a nearby tree line. This may be an ordinary and legitimate ruse, or a perfidious act by today’s standards. In either case, however, it shows the difficulty of ascertaining what is a legitimate military objective or target. It also emphasizes the importance of an efficient targeting system, for it is on its advice that a commander and his staff must depend for the most efficient employment of his assets.
One factor remains in the equation regarding the legality of aerial bombing, and that concerns the capabilities of the attacking force compared with the
Draft treaty provisions under consideration in the Pentagon prohibit the attack of installations containing “dangerous forces” (dams, dikes, or nuclear power plants) unless used “in regular, significant and direct support of military operations.” Given the complexity of modern power grids and the U. S. capability to neutralize such facilities without releasing their dangerous forces, as exhibited by the 10 June 1972 attack of the Lang Chi hydroelectric facility in North Vietnam, the prohibition is impractical, limits U. S. military-technological advantage, and has no real humanitarian benefit.
expectations of a government and its people. However noble (or ignoble) the intentions of a nation to conduct its combat operations in compliance with the law of war. wars are fought with the means at hand. Those means determine the ability of a nation to conduct combat operations in a manner which simultaneously is militarily efficient and consistent with the law of war. This should not be taken to imply a degree of disregard for the law, although there may be times when military security requirements are deemed to outweigh humanitarian ideals. What is required, as previously noted, is a good- faith effort at compliance with the means that are reasonably available. In this respect it is important to point out that compliance with the law of war is the obligation of the nation and not just that of its military forces. A nation's ability to comply with the law of war develops as the result of a complicated interaction of myriad factors, both military and domestic. Thus the manner in which the Royal Air Force's Bomber Command ultimately waged its bomber offensive over Nazi Germany was decided in the 1920s and 1930s in the struggles for funding by the ill-supported military services, the fiscal and policy battles of the Treasury and Foreign offices, and the debates of the House of Commons. Many critics of the strategic bombing offensive tend to dwell on the writings of Douhet, providing him undue credit for the bombing doctrine and practice of World War II. In fact, Douhet had less impact than the Ten Year Rule promulgated by the British v Cabinet" and the similarly self-imposed moratorium on arms development and technological improvement which carried through to the unsuccessful con- ) elusion of the Geneva Disarmament Conference in May 1934. The extent to which a nation’s air forces may provide for the defense of the nation while offering protection to the civilian population of the enemy, then, is directly proportionate to the support provided those air forces, in peace and war, by the nation’s political leaders and its people. Put another way, in a democracy such as ours with a seesaw approach to national security, when there are questions during or following a conflict regarding the lawfulness of means and methods of warfare which are not illegal per se, it is the privilege of hypocrisy for those who opposed defense development in the preceding peace to cast the first stone of condemnation.
Conclusion. It is the policy of the United States to comply with the law of war in the conduct of combat operations. That policy is fully implemented through directives of the Department of Defense, the Joint Chiefs of Staff, the individual services, and the specified and unified commands. Likewise, each officer and enlisted member, in taking an oath to uphold and defend the Constitution and laws of the United States, accepts an obligation to execute his j or her duties in a manner consistent with the law of war. The difficulty with the law of war as it relates to aerial bombardment has been (at least prior to 1977) that it was not clearly spelled out. particularly in its recognition of the inevitability of incidental civilian casualties, with regard to the fact that protection of the civilian population not taking a direct part in the hostilities is the responsibility of both the attacker and the defender, and in its definition of such basic terms as military objective and civilian.
Efforts to establish rules by some of the best minds of the past half century have fallen far short. This suggests not only the complexity of the issue, but that the “unlawfulness” of past bombing methods has not been quite as clear-cut as many of their detractors have attempted to make it. The rules developed in Protocol I of 1977, now under review within the military services, confirm the legality and efficiency of the targeting procedures developed by the military. Those targeting procedures coincide with our obligations under the law of war: to locate, identify, attack, and destroy military targets with the weapons and aircraft available. The aviator flying the mission has a right, both under the law of war and basic principles of leadership, to presume the order assigning him his mission is lawful. The agreed rules remain general and subjective, first in order to meet the changing circumstances and situations of war, and, second, because of the realization that the on-the-scene commander must be entrusted as part of the prerogatives and responsibilities of command with the authority to decide whether attack of an objective is proper. Only time will tell whether the language of Protocol I of 1977 will be accepted by nations, and will succeed where past efforts have failed.
Hamilton DeSaussure and Robert Glasser. "Air Warfare—Christmas 1972." in Peter Trooboff. ed.. Law and Responsibility in Warfare: The Vietnam Experience (1975). p. 119. Professor DeSaussure argued that because the primary reason for the attack of military targets in Hanoi and Haiphong was to force the North Vietnamese back to the negotiating table, 'he attacks were for predominantly political purposes and therefore illegal. He proposed that such attacks be prohibited in the new rules of war then under negotiation at the Diplomatic Conference in Geneva (see Footnote 2). Professor DeSaussure's suggestion never received serious considera- hon at the conference. [Linebacker II was similar in purpose to strikes made on the North Korean capital of Pyongyang on II July and 29 August '952, when United Nations air forces struck military, industrial and po- ntical targets in that city in an effort to force a change to the communist Position on forced repatriation of prisoners of war and other issues at the ,ruce tables in Panmunjon. The parallels to Linebacker II go beyond this series of attacks. Throughout the period of armistice negotiations. United Nations air forces waged an intense campaign of close air support, interdiction. and counter-air operations against North Korea, thereby forc- ln8 communist acceptance of a negotiated settlement of that conflict.] An excellent rebuttal of Professor DeSaussure's argument by Colonel Norman Thorpe. USAF, and Leutenant Colonel James R. Miles, USAF. is Contained on pages 145-149 of the Trooboff volume.
The Swiss-sponsored Diplomatic Conference on the Reaffirmation and development of International Humanitarian Law Applicable in Armed Conflicts (hereinafter the "Diplomatic Conference") held four negotiating sessions between 1974 and 1977. producing two protocols which supple- ni®nt and update previous law of war treaties. Protocol I (as it is termed) contains rules which relate to aerial bombardment in international conflict. * u® Diplomatic Conference declined to consider rules relating to nuclear, biological, or chemical warfare on the basis that those weapons tradition- a®y have been the subject of arms control negotiations rather than being a Part of the law of war. (This article limits discussion to conventional warfare for this, and other reasons.) No military power has ratified the Protocols. Subsequently, the United Nations sponsored a separate con- erence to consider restrictions on the use of certain conventional weapons: that conference, which was more political than humanitarian. Produced a draft treaty of limited effect on its conclusion on 10 October 9"0. Both the 1977 protocols and the conventional weapons treaty are Undergoing comprehensive review and analysis within the military services Pri<rr to the Joint Chiefs of Staff recommendation to the President with [Uftard to their ratification.
Pierre Boissier. L'Epee et la Balance (1953), pp. 55-56. Translation by eolTrey Best, in "Legal Restraints in Warfare: The Twentieth Century’s Xperience." Journal of the Roval United Services Institute 122.3 (Sep- 'ember 1977). p.5.
Tor a discussion of these restrictions, see the author's "ROLLING HUNDER and the Law of War." Air University Review (January-Feb- niary 1982), pp. 2-23.
Churchill. Their Finest Hour (1949). p. 331. The Luftwaffe's attack of peonomic targets was lawful but beyond its capabilities. Churchill's crit- 'p'sm was directed primarily at the attempt to force England into submis- £ion through terrorization of its population.
be admonition to minimize civilian casualties rather than to avoid the ase of weapons and tactics that would inevitably lead to excessive col- a,eral civilian casualties exceeded the requirements of the law of war. an<t placed avoidance of civilian casualties above the security of the at- a®king force and accomplishment of the mission.
Another example from the Vietnam War will illustrate the lack of un- erstanding which has existed with regard to the issue of collateral civilian uusualties. During the conduct of Linebacker II. a representative of the 0|Pt Chiefs of Staff was required to brief the House Armed Services
Committee in closed hearings after each day of operations. The JCS took great pains to illustrate through photographic coverage the extremes being taken at every level of command to minimize risk to the civilian population of North Vietnam, much to the chagrin of those members of the HASC who opposed the bombing. A wrap-up briefing was provided in January 1973 after conclusion of Linebacker II. During the briefing a photograph was flashed on the screen showing damage in a residential area of Hanoi. A new member of the HASC seized upon the occasion to castigate the briefer for what apparently was erratic bombing, demanding of the briefer that he explain the circumstances surrounding the damage. The briefer responded: "I regret ... to say that the damage was caused by the crash of one of our B-52 aircraft after being hit by a North Vietnamese SAM, with the loss of the entire crew." The Congressperson was not to be denied, however, as she screamed: "Well, dammit. General! Can't you teach your pilots to crash somewhere else?"
7For example, during the 1979 session of the United Nations Conventional Weapons Conference, a small but very vocal minority of delegations sought (unsuccessfully) to obtain some protection for combatants against incendiary weapons. The delegate from Syria suggested that tanks and military trucks could be attacked with napalm, but that the personnel within them first had to be provided an opportunity to escape from them. He proposed that the aircraft carrying napalm make one low pass over the enemy force to permit them to see that the aircraft were equipped with napalm, in order for the soldiers to evacuate their vehicles prior to their attack. The Soviet delegate, a retired army officer and veteran of the siege of Leningrad, suggested that such a rule might be acceptable provided its proponent would agree to fly the first mission. The proposal received no further consideration.
“An experience of the author's at the 1979 United Nations Conventional Weapons Conference will serve to illustrate the point. The author was the principal U. S. negotiator on a draft protocol related to the employment of air-delivered incendiary weapons, and the sessions were rather intense on occasion. At a reception after a day of extended debate, the author was approached by a delegate from a Third World country, who asked why the United States could not accept certain language in the draft protocol. I explained that the proposed language was unrealistic, for it bore no relationship to the characteristics of incendiary weapons or their employment, it would likely lead to a greater number of collateral civilian casualties, and it was unlikely to gain universal acceptance in practice. The delegate responded: "Who cares about that? All we want is a document we can take home and hold up to show that we came away with something for our efforts here. We do not worry about whether it will work or not."
‘'Captain C. O. Holmquist, USN, "Developments and Problems in Carrier- Based Attack Aircraft." Naval Review 1969, p. 214.
"’Lieutenant Colonel Bernard Appel. USAF. "Bombing accuracy in a Combat Environment," Air University Review XXXVI. 5 (July-August 1975). p. 40.
"The “Ten Year Rule" was first laid down in 1919 when the British Cabinet decided that "it should be assumed, for framing [defense] Estimates, that the British Empire will not be engaged in any great war during the next ten years." In 1928. il was agreed that the Ten Year Rule would be continued from day to day, and that the validity of the assumption would be reviewed annually. It was reaffirmed through 1933. but no positive steps were taken to strengthen the defense estimates until after the failure of the Geneva Disarmament Conference in 1934. During this time the date for completion of the British defense expansion program, commenced on abandonment of the Ten Year Rule, was postponed from 1935 to 1938. "to strengthen the moral position of the [British] delegates" to the Disarmament Conference.