Keith Mack
The use of aerial bombardment by states against their civilians is a highly controversial issue that has been addressed by international laws and conventions, such as the Geneva Conventions and the Hague Regulations. The topic raises questions about the legality and ethical implications of such actions, with a focus on distinguishing between targeted aerial bombardment and indiscriminate area bombardment. The potential for catastrophic humanitarian consequences and the protection of civilians during times of war are key considerations in this debate. The development and employment of weapons with wide-area effects, such as atomic bombs, have further complicated the discussion, as their use may result in devastating and far-reaching consequences for civilian populations.
| Characteristics | Values |
|---|---|
| International laws on bombing civilians | Aerial bombardment of civilian populations is prohibited under international law |
| Treaties | The Hague Convention of 1907 IV, The Hague Draft Rules of Air Warfare of 1922-1923, Geneva Convention relative to the Protection of Civilian Persons in Time of War |
| International Humanitarian Law (IHL) | Also known as the law of war or the law of armed conflict, it applies only in situations of armed conflict |
| IHL Protections | Persons who do not or no longer take part in the fighting (civilians, medics, aid workers, etc.), imposes limits on the means and methods of warfare |
| IHL Requirements | Parties to armed conflicts must give special respect and protection to persons with disabilities |
| Prohibition of Torture | Torture and other forms of ill-treatment are prohibited everywhere and at all times |
| Weapons Development | States must carry out a legal review to determine if a new weapon's use might be prohibited by international law |
| Weapons with Wide-Area Effects | Explosive weapons with wide-area effects should be avoided in urban settings due to grave humanitarian consequences |
| World War II | Major European powers agreed not to bomb civilian targets outside combat zones, but this was not honored |
| Nuremberg and Tokyo Trials | Indiscriminate bombing of enemy cities was excluded from the category of war crimes, and no Axis officers were prosecuted |
| Atomic Bombings of Hiroshima and Nagasaki | Considered an illegal act of hostilities under international law as an indiscriminate bombardment of undefended cities |
| Legality of Nuclear Weapons | No comprehensive and universal prohibition of the threat or use of nuclear weapons in customary or international law |
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What You'll Learn
Indiscriminate bombing of cities
The indiscriminate bombing of cities has been a feature of modern warfare since World War I, when German Zeppelins and aircraft indiscriminately dropped bombs on cities in Britain and France. This continued in the Spanish Civil War and on a larger scale during World War II, when cities like Chongqing, Warsaw, Rotterdam, London, Coventry, Stalingrad, Hamburg, Dresden, Tokyo, Hiroshima, and Nagasaki suffered aerial bombardment, causing massive destruction and the deaths of tens of thousands of civilians.
The Hague Convention of 1907 IV – The Laws and Customs of War on Land and IX – Bombardment by Naval Forces in Time of War, and the Hague Draft Rules of Air Warfare of 1922–1923, drew a distinction between "Targeted Aerial Bombardment" and "indiscriminate area bombardment" (also called "Blind Aerial Bombardment"). The court ruled that blind aerial bombardment was permitted only in the immediate vicinity of land forces operations and that only targeted aerial bombardment of military installations was permitted further from the front. It also ruled that the incidental death of civilians and the destruction of civilian property during targeted aerial bombardment were not unlawful.
Despite this, the massive destruction of non-combatant targets during World War II prompted the victorious Allies to address the issue when developing the Nuremberg Charter of August 1945. Article 6(b) of the Charter condemned the "wanton destruction of cities, towns or villages, or devastation not justified by military necessity" and classified it as a violation of the laws or customs of war, and therefore a war crime. However, due to the absence of positive or specific customary international humanitarian law prohibiting illegal conducts of aerial warfare in World War II, the indiscriminate bombing of enemy cities was excluded from the category of war crimes at the Nuremberg and Tokyo Trials, and no Axis officers or leaders were prosecuted for authorizing this practice.
The 1991 Gulf War and the wars of the former Yugoslavia, including Kosovo, have been regarded as the first attempts to avoid indiscriminate damage in warfare, with the use of smart bombs being instrumental in this effort. Although bombings during the Gulf War destroyed critical infrastructures in Iraq, leading to thousands of civilian deaths, the war was widely celebrated for the "most discriminate air campaign in history", with relatively few Iraqi civilians directly killed by the bombings.
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Protection of civilians in occupied territories
The protection of civilians in occupied territories is governed by international humanitarian law (IHL), also known as the law of war or the law of armed conflict. IHL applies only in situations of armed conflict and offers two systems of protection: one for international armed conflict and another for non-international armed conflict.
IHL requires parties to armed conflicts to give special respect and protection to civilians. Civilians affected by hostilities are protected by IHL only if they have fled to a state taking part in an international armed conflict or if that state is beset by internal armed conflict. It specifically protects refugees entering the territory of an enemy state against unfavourable treatment based on their nationality.
In the context of occupation, IHL provides additional protections for civilians living in occupied territories. Occupation is defined as a form of international armed conflict where the territory of a state is placed under the authority of a hostile army. The protections for civilians in occupied territories are set out in the Fourth Geneva Convention, the 1907 Hague Regulations, and customary law rules. These protections include:
- The occupying power must not transfer or deport the population of occupied territories or transfer its own civilians into the occupied territory (Article 49 of GCIV and Rule 130 of the 2005 ICRC customary IHL study).
- The occupying power must respect the personal status of children, not hinder their education, and maintain any preferential measures adopted in favour of children and mothers (Article 50 of GCIV).
- The occupying power may not compel protected persons to serve in its armed forces or undertake any work involving military operations (Article 50 of GCIV).
- The occupying power may confiscate movable public property that can be used for military operations, but must administer immovable public property according to the rule of usufruct, and respect private property (Customary IHL, Rule 51).
- The occupying power must permit ministers of religion to provide spiritual assistance to their communities and accept and facilitate the distribution of consignments of books and articles required for religious needs (Article 24 of GCIV).
- The occupying power must ensure that the material and stores of civilian hospitals are not requisitioned as long as they are necessary for the civilian population (Article 18 of GCIV).
- The occupying power must not requisition foodstuffs, articles, or medical supplies from the occupied territory, except for use by occupation forces and administration personnel, and only if the requirements of the civilian population have been considered (Article 55 of GCIV).
- The occupying power must facilitate relief schemes for the population of an occupied territory if it is inadequately supplied (Article 59 of GCIV).
- The occupying power must respect the activities of recognised National Red Cross Societies and other relief societies, and may not require any changes that would prejudice their humanitarian activities (Article 27 of GCIV).
It is important to note that the absence of positive or specific customary international humanitarian law prohibiting illegal conducts of aerial warfare has resulted in legal ambiguity. For example, the indiscriminate bombing of enemy cities during World War II was not categorised as a war crime at the Nuremberg and Tokyo Trials, and no Axis officers or leaders were prosecuted for authorising this practice.
To address this, states must conduct a legal review when developing or acquiring new weapons to determine whether their use might be prohibited by international law. This review should consider the humanitarian consequences and the principles of humanity in the use of weapons with wide-area effects, such as large bombs and missiles, in urban or populated areas.
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Prohibition of torture and ill-treatment
The use of aerial bombardment against civilians has been a highly controversial issue in international law, with various incidents throughout history, such as the bombing of Hiroshima and Nagasaki during World War II, sparking debates and legal reviews. While the specific question of whether states can bomb their civilians under international law does not have a clear-cut answer, the principles of international humanitarian law (IHL), international human rights law (IHRL), and the laws and customs of war offer some guidance and protections for civilians.
Torture and ill-treatment of any kind are absolutely prohibited under international law, including during times of war and armed conflict. This prohibition is enshrined in both customary international law and international human rights law, with the latter specifically referring to it as jus cogens, meaning it takes precedence over all other treaties and laws. The prohibition against torture is also included in the Universal Declaration of Human Rights, which states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This declaration, adopted after the atrocities of World War II, reflects the international community's commitment to upholding human dignity and protecting individuals from such abuses.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment further elaborates on this prohibition. It defines torture as:
> "...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
The convention also establishes a Committee against Torture, tasked with ensuring compliance and providing redress to victims. It is important to note that the convention also prohibits acts that may not meet the definition of torture but still constitute cruel, inhuman, or degrading treatment. Examples of such prohibited mistreatment include sleep deprivation, sensory manipulation (e.g., bright lights or blindfolding), and physical stress positions.
The prohibition against torture and ill-treatment is not limited to international conflicts; it also applies within a state's own borders. Each state party to the convention has the responsibility to prevent such acts within its jurisdiction, even if committed by public officials or those in positions of authority. This includes taking steps to ensure that complainants and witnesses are protected from retaliation and providing fair and adequate compensation to victims.
In conclusion, the prohibition of torture and ill-treatment is an absolute and fundamental principle in international law. States have a responsibility to uphold this prohibition, both in their external actions and within their own borders, to ensure the protection of human rights and dignity.
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Weapons development and legality
The legality of bombing civilians under international law is a complex issue that has evolved over time. While there are no explicit provisions in international law that prohibit states from bombing their own civilians, the legal framework surrounding aerial bombardment and the protection of civilians during armed conflicts is intricate and multifaceted.
International Humanitarian Law (IHL), also known as the law of war or the law of armed conflict, plays a crucial role in regulating the development and use of weapons. When developing or acquiring new weapons, states have a legal obligation to conduct a legal review to determine whether their use complies with IHL and other relevant international laws. This review process is essential due to ongoing technological advancements, ensuring that new weapons do not cause unnecessary suffering or violate the principles of humanity and public conscience.
IHL imposes restrictions on the choice of weapons, means, and methods of warfare employed by parties engaged in armed conflicts. It prohibits or restricts the use of certain weapons, such as exploding projectiles, expanding or flattening bullets, poison gas, and biological weapons. Early treaties, such as the 1868 and 1899 treaties, prohibited specific arms, while the 1925 Geneva Protocol outlawed poisonous gases and biological warfare.
The development and use of nuclear weapons present a unique challenge under international law. While there is no comprehensive or universal ban on their use, the International Court of Justice (ICJ) ruled in 1996 that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict." This ruling highlights the potential incompatibility of nuclear weapons with the rules of IHL, and the ICRC has called on states to refrain from using them regardless of their legal views.
The legality of weapons development and use is a dynamic field that requires constant evaluation. The ICRC plays a pivotal role in promoting and developing laws regulating weapons, ensuring compliance with international humanitarian law, and considering ethical implications, especially with the emergence of autonomous and AI-driven weapon systems.
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Protection of civilian hospitals
The protection of civilian hospitals is a key tenet of international humanitarian law (IHL). IHL, also known as the 'law of war' or the 'law of armed conflict', applies only in situations of armed conflict. It offers two systems of protection: one for international armed conflict and another for non-international armed conflict.
Under IHL, hospitals are considered protected spaces due to their life-saving function for the wounded and sick. This protection extends to medical staff, means of transport, and anyone needing medical attention who is not taking part in hostilities. The Geneva Conventions, adopted after World War II, form the core of IHL and are particularly protective of civilian hospitals. Article 8 of the Rome Statute, which established the International Criminal Court (ICC), defines war crimes, including "intentionally directing attacks against buildings dedicated to... charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected".
However, hospitals can lose their protected status under certain circumstances. For example, if a hospital is used for "interference, direct or indirect, in military operations", such as sheltering combatants or fugitives, storing ammunition, or serving as a military observation post, it may become a legitimate military target. In such cases, the response must still follow the laws of armed conflict, including proportionality and taking feasible precautions to mitigate civilian harm.
To minimise the impact of an attack on healthcare services, certain measures should be taken, including preparing contingency plans, considering evacuation procedures, and facilitating the rapid restoration of healthcare services after an attack.
Despite legal protections, hospitals have been increasingly used for military purposes by some combatants, leading to complex situations where the defending force may need to respond without providing advance warning.
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Frequently asked questions
International humanitarian law (IHL), also known as the law of war or the law of armed conflict, protects civilians who are not involved in fighting. It also imposes limits on the means and methods of warfare, including the use of certain weapons.
No, bombing civilian populations is considered a crime under international law. However, there is no comprehensive and universal prohibition of the use of nuclear weapons under international law.
Targeted Aerial Bombardment refers to the targeted bombing of military installations, while Blind Aerial Bombardment, or indiscriminate area bombardment, refers to the bombing of undefended cities.
Civilians are afforded general protections under IHL, and those living in occupied territories are entitled to specific protections that aim to prevent abuses by the occupying power. These protections are outlined in the Fourth Geneva Convention, the 1907 Hague Regulations, and customary law rules.
