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Defining a broader material scope of protection: The emerging Law of Air Warfare

Submitted by on 18/03/2009 – 10:14 pmOne Comment

On 10 March 2009, Diakonia IHL Program, 4th International Humanitarian Law Session on Air warfare with Ove Bring, a Professor of International Humanitarian Law at the University of Stockholm. The discussion concerned the normative framework of rules applicable to air warfare, and contextualised specific rules to the case of the recent war on Gaza.

The project on air warfare rules has released a first version of its manual in Spietz, Switzerland about a year back. The group of experts are planned to have another meeting in May 2009 in Bern, Switzerland. Notably, Prof. Yoram Dinstein, a renowned IHL scholar who has often been seen as supportive of the legal position of the Israeli government, was one of the people who proposed the idea for the development of the manual.

The most intriguing question, which did not however come up in the context of this discussion, is the initial reason for the isolation of air warfare as a special area of legal practice that thereby requires special rules. In other words, how is an attack conducted from a heavy artillery tank coming from afar different than one coming from an airplane in the sky, and in what circumstances would the distinction be crucial to ensure the full protection of the fundamental principles of international humanitarian law (IHL) that in the case of aerial bombardments may not always be guaranteed by the unsatisfactory protection of the rules of Additional Protocol I to the Geneva Conventions (AP I).

The fact is that IHL does not provide specific rules for naval or aerial warfare, even though AP I is considered to ground sufficiently transposable rules that arguably apply to all battlefields. The San Remo manual has since supplemented AP I with regards to naval warfare. The manual of principles being developed at present by a HPCR team of experts and the support of the Swiss government seeks to do the same for air warfare. The underlying principle of this document is thereby to ensure the utmost protection of the civilian population whilst molding the generally applicable principles of IHL to cases of aerial attacks. Unfortunately, at this stage, the rules on aerial warfare are not part of customary international law, and thus do not oblige states; they have the same status as the San Remo manual, i.e. that of a soft law instrument.

The principal added value of this drafting process is the fact that the scope of  application of certain legal norms is extended through their definition. For instance, the principle of proportionality is defined for the first time in the air warfare manual. Concurrently, the precautionary principle is extended to cover the party’s conduct before and during the attacks; a range of temporal application that has not been defined before. The rule on aerial bombardments is the pivotal aspect of the manual. It should be noted that since AP I prohibits aerial bombardments one of its contentious aspects is the fact that the manual erodes the prohibition and to a certain extent legalizes such actions.

The following considers some of the principles that have been developed in the working drafts of the manual conducting a short survey of the scope of application as well as problematic aspects of a number of rules…

Choosing objectives on the basis of their prospective military use?

The first legal issue considered is the definition of aerial bombardments. Such operations include attacks from the air to the ground and vice versa, as well as a range of other exchanges. The definition of a “military objective” has also been identified in the manual – extending the definition found in AP I, but using wider terminology. Civilian objects that turn into military objects also included dual use objects attacked following the preemptive strategy; AP I notes that possible future use should not be enough to legitimise the target.

The general rules of the manual also note that indiscriminate attacks are forbidden, e.g. Squad missiles are an indiscriminate means of attack and the official ‘Dahia’ policy promoting indiscriminate killing and disproportionate use of force, used in Lebanon in 2006 and in the war on Gaza, is a military strategy prohibited by international law due to its disregard for the foundational principle of distinction and obligation to take appropriate precautions in attacks.

The manual also considers the principle of proportionality, which comes into play in most situations where civilians are involved, even in the most obscure way. There should at all times be a presence of legal advisors to make a bona fide assessment as to whether the “anticipated” incidental loss and damage are “excessive”. This said, the creation of collateral damage is unavoidable and a certain amount is therefore permitted by IHL.

In this light it could also be asked whether an obligation exists for each party to use the most advanced technological weapons available to it? This proposition is accepted by IHL but only to a certain degree; in the sense and as far as it would assist in measuring compliance with the proportionality principle, and only to the extent that the principle of proportionality is not eroded. The obligation to use the best weapon technology remains, nevertheless, a soft law obligation.

In a similar tone, it can also be inquired whether there is an obligation to change from air to land warfare at a certain point in time during the hostilities due to the conditions on the battlefield? The answer would depend on the case but could not in most cases oblige a party to change its chosen course of action. So that even if in cases like Kosovo, or the aerial bombardments during WWII it was clear that a land military operation would have been more efficient from a military perspective, there was no obligation on the party to change their means of warfare.

Additional insurance in the use of the distinction and precaution principles

The principles convey that during an aerial bombardment civilians cannot be treated as military objects, even if they are positioned nearby military objects, and this of course as long as they have not chosen to act as voluntary human shields where matter become more problematic. The military decision-maker should assess whether it is possible to attack the particular military object without causing loss to civilian lives. If the attacks need to be conducted separately then the soldier should use all necessary measures in pursuing them in a manner that is complaisant with IHL; otherwise, if this option is not available, the manual demands that he abort the mission.

As for the obligation to take appropriate precautions in attacks, the manual holds that the use of outdated intelligence information would constitute a failure to take precautions and thus a violation of the principle. The effectiveness of a warning in the form of leaflets would usually depend much on the timing factor; other factors like the bona fide nature of the warning and its efficiency are also considered. The formulation of the obligation found in the manual holds that the warning needs to be “as specific as circumstances permit”.

The use of warnings before the launching of an attack has become a particularly contentious matter in practice. In Kosovo, for instance, the Americans circulated warnings in different ways, but due to their frequency, they were held to be ineffective. In Gaza, concurrently, one of the most important factors is the location assigned for evacuations – the occupying power has an obligation to facilitate a safe and efficient evacuation process. Analogously, in Belgrade the evacuation of the Chinese Embassy failed due to the constant change of location for evacuation.

Mission (to be) aborted? Military indoctrination and the law

The obligation to abort the mission is an important, newer doctrine developed by the manual. The norm notes that there is an obligation to abort a mission if “it becomes apparent that the objective is not military” or that the “loss is excessive”, e.g. a pilot in Kosovo attacking a bridge.

This is indeed a problematic legal field in terms of military thinking, particularly due to the training received by soldiers, which often only intensifies their personal determination to satisfy their commanders by accomplishing their assigned missions, whilst neglecting to a certain extent their commitment to the rules of IHL. The norm therefore demands that each party present evidence of the training provided to its pilots on the availability of the option to abort a mission, and ensure, concurrently, that they possess the most updated intelligence information and guidance from the relevant agencies.

The option to abort has been formulated in the manual in stricter terms than ever before, whilst the drafting process has also pointed out that it is largely a question of indoctrinating militaries around the world and injecting them with a different thinking. Two points should be noted: one is the importance of the role of the military advisor and the second is the fact that in a free society based on the freedom of information such a pilot would automatically get support from the media and certain streams of society for having ‘done the (morally) right thing’.

Medical personnel and the use of human shields

As a pivotal pillar of IHL, the manual also reaffirms the absolute prohibition on the targeting of medical personnel, and highlights that the threshold for the precautionary principle is heightened where medical personnel are involved or present in an area that is under attack.

The Palestinian Red Crescent Society (PRCS) notes that 14 ambulances were targeted during the war in Gaza, 21 medical units, including clinics, emergency posts etc. – 16 personnel were killed and 30 injured. The tragic attack on Al-Quds hospital and the burning of its warehouses has been highlighted by almost every report on the conduct of the hostilities by the Israeli forces. The systematic nature of the attacks on medical personnel has made the organisation regard Israel’s actions as an official policy. From the perspective of IHL, if this were indeed the case then such a practice would amount to the gravest war crimes.

It should also be recalled that Israel has claimed that there were cases of ambulances being used as military transport, as a result of which both the vehicle and the medical crew inside lose the special protective shield afforded to them by IHL. Nevertheless, if there is a mix of both military and medical personnel in the vehicle, the vehicle does not necessarily become a legitimate military target, and the burden of proof is on the attacker to disprove the fact that the targeting was illegitimate. A belligerent party cannot hide military targets amongst civilians, however when this is done, civilian presence brings into play the proportionality principle.

The use of human shields is prohibited by IHL. The practice of voluntary human shields, when civilians enter a location that is being used as a launch pad, the question of “direct participation in hostilities” (DPIH) should be examined (as per Article 51(3) AP I). If a civilian is seen as participating, he would lose his protection as a civilian. This is both an interesting and fearful matter, since these are the most volatile cases in the eyes of the IHL, which has often not envisaged the more complex situations that modern-day wars present on the battlefield.

Nevertheless, it has been noted that the question of voluntary human shields is less relevant to the situation in Gaza due to the crowded character of the neighborhoods, and the dense topography of the urban landscapes. Even though the civilians have lost their protection as a result of their DPIH – they arguably still remain part of the proportionality equation. Endless speculations can be made on various scenarios when a particular civilian, who has been warned of an attack or had a reasonable chance to voluntarily chose his location, would no longer be considered a civilian for the purpose of the proportionality principle.

Civilian morale and a norm on psychological warfare

Another innovation presented by the manual is a principle that considers the content of the military objective and notes that attacks cannot be used only for the purpose of “shattering civilian morale”. This is problematic since psychological warfare, such as the use of sonic bombs or the flying of airplanes close to people’s homes, is not prohibited by IHL.

The damage of a military attack proper, as recognised by the traditional framework of IHL, has numerously been referred to as consisting mainly of physical injury. This is, however, difficult to accept since in a number of cases psychological symptoms causing graver and longer term physical effects than some physical injuries.

Since there has already been an expert group convened for the purpose of developing legal norms to limit and prohibit other types of attacks not considered by the traditional legal framework of IHL, e.g. computer attacks (airports, etc.), it can be envisaged that the same legislative initiative should be commenced in order to codify the rules on psychological warfare.

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