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 PART I:THE LEGAL STANDARDSTHE LEGAL REGIMEGOVERNING THE CONDUCT OF AIR WARFAREThe recently concluded hostilities between the allied coalition and Iraq were a classic example of an international -- that is, interstate --armed conflict as defined in Article 2 common to the four 1949 Geneva Conventions. As such, the conduct of military operations by all the warring parties in the Gulf was governed by the Geneva Conventions, as well as by the customary laws of war. Since Iraq, as well as many of the key members of the allied coalition, were not Parties to the First Additional Protocol1 to the Geneva Conventions, that instrument was not applicable to the Gulf conflict as a matter of conventional law. This does not mean, however, that the Protocol was irrelevant, since many of the Protocol's provisions reaffirm, clarify or otherwise codify pre-existing customary-law restraints on methods and means of combat and, thus, are binding on all nations regardless of ratification. Despite its refusal to ratify Protocol I, the United States has expressed its support for many rules in the Protocol and has declared others to be customary law.2 Moreover, the U.S. Army, Navy and AirForce manuals on international law applicable during armed conflict include prescriptions which often track the terminology of Protocol I. This chapter sets forth, albeit not exhaustively,3 the legal rules and principles governing aerial bombardment4 during the Gulf war. It focuses, in particular, on customary restraints on methods and means of warfare, and the relation of customary law to codifications of the laws of war in Protocol I. INTERNATIONAL HUMANITARIAN LAW The law of war, or international humanitarian law, has developed over centuries. It was largely shaped before the emergence of air power. The 1907 Hague Regulations on land warfare, for example, were designed to apply to a combat zone where hostile land forces confronted each other in close proximity. Air bombardment, while dimly recognized, was thought to be feasible only as close support for ground forces -- a kind of supplement to artillery. The hinterlands of the belligerents were believed to be secure from the effects of hostilities. Rapid technological advances in military air power and its devastating effects during World War II shattered any illusion about the security of areas far from land combat. Although there is no comprehensive treaty on the conduct of air warfare comparable to the 1907 Hague Regulations, aerial bombardment is, like all other forms of combat, governed by certain legal rules which "must be derived from general principles, extrapolated from the lawaffecting land or sea warfare, or derived from other sources including the practice of states reflected in a wide variety of sources."5 MILITARY NECESSITY AND THE PRINCIPLE OF HUMANITY
(i) that the force used is capable of being and is in fact regulated by the user; (ii) that the use of force is necessary to achieve as quickly as possible the partial or complete submission of the adversary; (iii) that the force used is no greater in effect on the enemy's personnel and property than needed to achieve his prompt submission (economy of force), and (iv) that the force used is not otherwise prohibited.7 Accordingly, the conduct of hostilities "must be carried on within the limits of the prohibitions of international law, including the restraints inherent in the principle of `necessity'."8 The principle of humanity both complements and inherently limits the doctrine of military necessity. The U.S. Air Force Pamphlet states that the principle of humanity "forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes."9 More concretely, the principle yields "a specific prohibition against unnecessary suffering, a requirement of proportionality, and . . . [an affirmation of] the basic immunity of civilian populations and civilians from being objects of attack during armed conflict."10 U.N. GENERAL ASSEMBLY RESOLUTION 2444 The duty to distinguish and refrain from targeting the civilian population was reiterated in U.N. General Assembly Resolution 2444, Respect for Human Rights in Armed Conflict,11 adopted by unanimous vote on December 18, 1969. The Resolution states in pertinent part: a) that the right of Parties to a conflict to adopt means of injuring the enemy is not unlimited;
CUSTOMARY LAW AND PROTOCOL I
Protocol I contains detailed rules, mostly reaffirmations or clarifications of existing customary law, which implement the customary principles that a distinction should be made between combatants and civilians and that civilians and civilian objects may not be the object of attacks. Four different sections of the Protocol are devoted to this task. First are provisions designed to revitalize and strengthen the legal requirement to distinguish military objectives from civilians and civilian objects and to limit attacks to military objectives. Second are provisions clarifying practical steps to be taken in the selection of targets to prevent attacks on civilians and civilian objects, including the rule of proportionality and a prohibition of indiscriminate attacks. Third are provisions regulating the means and methods of both attack and defense to avoid or minimize civilian casualties and damage to civilian objects. Fourth are specific provisions limiting or prohibiting attacks on particular objects and specified areas.
GENERAL RESTRICTIONS ON AIR WARFARE The Basic Rule: The Immunity of Civilians and Civilian Objects
Article 51(2) reaffirms this mandatory distinction by providing: "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." This general immunity does not prohibit attacks which may cause civilian casualties. For example, civilians who are located within or near legitimate military targets, while still immune from individualized attack, may be at risk of death or injury as a result of lawful attacks against such targets, although, as noted later, such civilians would retain the benefits of the rule of proportionality as it applies to collateral civilian casualties. Terror and Morale Attacks
This article also prohibits bombing to attack civilian morale. Although technically there may be a distinction between morale and terror bombing, they are, in practice, treated the same. It has often been observed that what is morale bombing to the attacking force is terror bombing to the civilians who are targeted. In the past, these attacks were carried out by strategic aerial bombardment of the enemy's economic infrastructure. This infrastructure may include a mix of military and civilian targets. To the extent that these attacks are launched orthreatened solely or primarily for political ends, they violate the principles of civilian immunity, proportionality, and humanity. Attacks intended primarily to induce the civilian population to rebellion or to overthrow its leadership would be examples of unlawful attacks.14 Prohibited Uses of Civilians
The U.S. government has expressly recognized Article 51 as customary international law,17 and the Air Force Pamphlet enjoins attacks against civilians in terms virtually identical to Article 51.18 The U.S. government also regards as declaratory of customary law other articles in Protocol I which are designed to clarify further the requirement to distinguish between civilians and military objectives. These articles, among others, provide relatively explicit definitions of civilians, the civilian population, military objectives and civilian objects. Civilians and Civilian Population
Military Objectives
The requirement that military objectives effectively contribute to military action does not necessarily require a direct connection with combat operations. As the Air Force Pamphlet states, the "inherent nature of the object is not controlling since even a traditionally civilian object, such as a civilian house, can be a military objective when it is occupied and used by military forces during an armed engagement."23 The military objective not only must effectively contribute to the enemy's military action, but its destruction, neutralization or capture must alsooffer a "definite military advantage" to the attacking party in the "circumstances ruling at the time." The official ICRC Commentary on Article 52, Protocol I,24 notes that the concept "definite military advantage in circumstances ruling at the time" means that "it is not legitimate to launch an attack which only offers potential or indeterminate advantages. Those ordering or executing the attack must have sufficient information available to take this requirement into account; in case of doubt, the safety of the civilian population, which is the aim of the Protocol, must be taken into consideration."25 The other authoritative commentary, the New Rules, similarly indicates that the adjective "definite" which modifies "military advantage" "is a word of limitation denoting in this context a concrete and perceptible military advantage rather than a hypothetical and speculative one."26 The requirement that the definite military advantage must be present "in circumstances ruling at time" imposes an additional significant limitation on the attacker's target selection. The New Rules states in this regard: "This element emphasizes that in the dynamic circumstances of armed conflict, objects which may have been military objectives yesterday, may no longer be such today and vice versa. Thus, timely and reliable information of the military situation is an important element in the selection of targets for attack."27 A leading authority on the laws of war, who was present at the drafting of Protocol I, endorses these interpretations, stating: [T]he "definite military advantage" required under the definition must be present "in the circumstances ruling at the time". This element in the definition effectivelyprecludes military commanders from relying exclusively on abstract categorizations in the determination of whether specific objects constitute military objectives ("a bridge is a military objective"; "an object located in the zone of combat is a military objective", etc.). Instead, they will have to determine whether, say, the destruction of a particular bridge, which would have been militarily important yesterday, does, in the circumstances ruling today, still offer a "definite military advantage": if not, the bridge no longer constitutes a military objective and, thus, may not be destroyed.28 Whether the required definite military advantage under prevailing circumstances would accrue from a particular attack "must be judged in the context of the military advantage anticipated from the specific military operation of which the attack is a part considered as a whole, and not only from isolated or particular parts of that operation."29 Types of Military Objectives
The ICRC Commentary contains the following proposed list of military objectives: (l) Armed forces . . . and persons who . . . take part in the fighting. (2) Positions, installations or constructions occupied by the forces . . . as well as combat objectives (that is to say, those objectives which are directly contested in battle between land or sea forces including airborne forces). (3) Installations, constructions and other works of a military nature, such as barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National Defence, Supply)and other organs for the direction and administration of military operations. (4) Stores of arms or military supplies, such as munitions dumps, stores of equipment or fuel, vehicles parks. (5) Airfields, rocket launching ramps and naval base installations. (6) Those of the lines and means of communication (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance; (7) The installations of broadcasting and television stations; telephone and telegraph exchanges of fundamental military importance; (8) Industries of fundamental importance for the conduct of the war: (a) industries for the manufacture of armaments . . . ; (b) industries for the manufacture of supplies and material of a military character, such as transport and communications material, equipment for the armed forces; (c) factories or plant constituting other production and manufacturing centres of fundamental importance for the conduct of war, such as the metallurgical, engineering and chemical industries, whose nature or purpose is essentially military; (d) storage and transport installations whose basic function it is to serve the industries referred to in (a)-(c); (e) installations providing energy mainly for national defence, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption. (9) Installations constituting experimental, research centres for experiments on and the development of weapons and war material.33 Civilian and "Dual-Use" Objects
It is important to understand that under customary law civilian objects enjoy general protection against direct attack. Article 52(l) defines civilian objects negatively as all objects that are not military objectives as defined in paragraph 2 of that same article which sets forth the two-fold test for military objectives. Therefore, Article 52 implicitly characterizes all objects as civilian, unless they make an effective contribution to the enemy's military action and unless destroying, capturing, or neutralizing them offers a definite military advantage in the prevailing circumstances. In doubtful situations, Article 52 creates a presumption that objects normally dedicated to civilian use, such as churches, houses or schools, are not employed to contribute effectively to military action. This presumption attaches only to objects that ordinarily have no significant military use or purpose, not to dual-use objects.35 RESTRAINTS ON ATTACKS:
The Rule of Proportionality
Articles 5l(5)(b) and 57(2)(a)(iii) and (b) contain the first codification of the customary rule of proportionality as it relates to collateral civilian casualties and damage to civilian objects. Article 5l(5)(b) formulates this rule as follows: "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." This rule, according to the New Rules, clearly requires that those who plan or decide upon an attack must take into account the effects of the attack on the civilian population in their pre-attack estimate. They must determine whether those effects are excessive in relation to the concrete and direct military advantage anticipated. Obviously this decision will have to be based on a balancing of: (l) the foreseeable extent of incidental or collateral civilian casualties or damage, and
The U.S. government expressly recognizes the rule of proportionality as a general restraint on the conduct of hostilities.37 Acceptance of this customary law rule is also evidenced by its inclusion in the military manuals of the three U.S. armed services.38 Concrete and Direct Military Advantage
"Concrete" means specific, not general; perceptible to the senses. Its meaning is therefore roughly equivalent to the adjective "definite" used in the two pronged test prescribed by Art. 52(2). "Direct," on the other hand, means "without intervening condition of agency." Taken together the two words of limitation raise the standard set by Art. 52 in those situations where civilians may be affected by the attack. A remote advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against civilian losses.40 The ICRC Commentary provides a similar interpretation, stating: The expression "concrete and direct" was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardlyperceptible and those which would only appear in the long term should be disregarded.41 While allowing a fairly broad margin of judgment, the Commentary notes, even in a general attack the advantage anticipated must be a military advantage and it must be concrete and direct; there can be no question of creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population. A military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces. In addition, it should be noted that the words "concrete and direct" impose stricter conditions on the attacker than those implied by the criteria defining military objectives in Article 52 . . . . 42 (Emphasis added). The term "concrete and direct military advantage" refers to the advantage expected "from the specific military operation of which the attack is a part taken as a whole and not from isolated or particular parts of that operation."43 The military manuals of all three U.S. armed services reflect the "concrete and direct military advantage" language of customary international law. The Air Force Pamphlet, for example, formulates the rule of proportionality as follows: Attacks are not prohibited against military objectives even though incidental injury or damage to civilians will occur, but such incidental injury to civilians or damage to civilian objects must not be excessive when compared to the concrete and direct military advantage anticipated. Careful balancing of interests is required between the potential military advantage and the degree of incidental injury or damage in order to preclude situations raising issues of indiscriminate attacks violating general civilian protections. (Emphasis added) 44 However, in its July 1991 report to Congress on the conduct of the Gulf War, the Defense Department describes the rule of proportionality in somewhat different -- and less restrictive -- terms: "It prohibits military actions in which the negative effects (such as collateral civilian casualties) clearly outweigh the military gain."45 This particular statement of the rule of proportionality appears to modify the customary-law formulation of that rule found in the U.S.military manuals and codified in Protocol I. Under the Pentagon's new version of the rule, collateral damage is not evaluated in relation to the "concrete and direct military advantage anticipated" but in terms of the "military gain." This considerably relaxed standard would unduly ease the burden of commanders in their choice of targets. Because this new formulation, if accepted as Pentagon policy, would amount to a unilateral revision of a fundamental rule of the customary law of armed conflict, long accepted by and binding on the United States, it would be in conflict with governing laws. The Pentagon should clarify publicly its position in this regard. Excessive Collateral Damage
Excessive damage is a relational concept, not quantifiable in terms of a fixed number of civilians dead or injured, or houses destroyed. Such damage need not be so great that it "shock the conscience" of the world. Rather, its avoidance requires a good-faith balancing of disparate probabilities--the foreseeability of collateral damage and the relative importance of a particular military target. The ICRC Commentary provides examples of "excessive" damage: (a) the presence of a soldier on leave cannot serve as a justification to destroy the entire village, and (b) "if the destruction of a bridge is of paramount importance for the occupation or non-occupation of a strategic zone, it is understood that some houses may be hit, but not that a whole urban area be levelled."46 Of course, the disproportion between losses and damages caused and the military advantages anticipated "raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations the interests of the civilian population shouldprevail...."47 However, the ICRC Commentary makes it clear that there is never a justification for excessive civilian casualties: The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol; in particular it conflicts with Article 48 (Basic rule) and with paragraphs l and 2 of the present Article 5l. The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.48 Ultimately, compliance with the rule of proportionality depends on the subjective judgment of military commanders in specific situations. Recognizing that decisions are taken in battle "under circumstances when clinical certainty is impossible and when the adversary is striving to conceal the true facts, to deceive and to confuse,"49 the New Rules states: The standard for judging the actions of commanders and others responsible for planning, deciding upon or executing attacks, must be based on a reasonable and honest reaction to the facts and circumstances known to them from information reasonably available to them at the time they take their actions and not on the basis of hindsight.50 In view of the subjective nature of such decisions, the New Rules suggests that parties to the conflict "should curtail the limits within whichcommanders of operating units exercise their discretion by issuing rules of engagement tailored to the situation prevailing in the area of conflict involved."51 In this regard, the Defense Department's July 1991 report to Congress contains a section on the rules of engagement for coalition forces, but is utterly silent as to the content of those rules. Since these rules of engagement must be consistent with the law of armed conflict, an important unanswered question pertains to what the rules for Operation Desert Storm provided. Assuming that they are classified, is this still necessary given the successful conclusion of hostilities? Accordingly, Middle East Watch calls on the Pentagon to release these rules of engagement publicly. It is also not clear whether, in discussing the nature of the balance required under the rule of proportionality, the July 1991 Pentagon report's use of the phrase "clearly outweigh" in place of "excessive" -- the term used in Protocol I and the three U.S. military manuals in the passages quoted above -- was meant to signal a substantive change. The Pentagon should clarify the meaning of its new terminology. Other Kinds of Indiscriminate Attacks
Article 5l(5)(a) characterizes an attack as indiscriminate when it treats a number of clearly separate and distinct military objectives located in a city, town, village, or other area containing a concentration of civilians or civilian objects as a single military objective. A ground assault on a single military objective within that locale, on the other hand, would not constitute an unlawful indiscriminate attack. An attack on an entire populated area to destroy several military objectives that a party could have attacked separately, however, would be indiscriminate under this test. This provision, therefore, would prohibit the target-area aerial bombardment of densely populated civilian centers that occurred during World War II.53 Whether the prohibition in Article 5l(5)(a) is new law or merely a reaffirmation of existing customary law depends on how the term "clearly separated" is construed. The U.S. and other delegations at the diplomatic conference that elaborated the Protocol "expressed theunderstanding that the words "clearly separated" refer not only to a separation of two or more military objectives which can be observed or which are visually separated, but also includes the element of a significant distance. Further, that distance must be at least of such a distance that will permit the individual military objectives to be attacked separately."54 If construed in accordance with this understanding, the prohibition probably reaffirms customary law. PRECAUTIONARY MEASURES Article 57 of Protocol I codifies pre-existing customary law regarding precautions that an attacking party must observe to avoid and minimize collateral civilian casualties and damage to civilian objects.55 The U.S. Government regards this article as declaratory of existing law: We support the principle that all practicable precautions, taking into account military and humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect thecivilian population, unless circumstances do not permit.56 In addition, the Air Force Pamphlet's list of required precautions is also virtually a verbatim transcription of Article 57. The Pamphlet recites these precautions as follows: (a) In conducting military operations, constant care must be taken to spare the civilian population, civilians, and civilian objects. (b) With respect to attacks, the following precautions must be taken: i) Those who plan or decide upon an attack must: (a) Do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives and that it is permissible to attack them; (b) Take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects; and (c) Refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. ii) An attack must be canceled or suspended if it becomes apparent that the objective is not a military one, or that it is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated; iii) Effective advance warning shall be given of attacks which may affect the civilian population unless circumstances do not permit. c) When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that which may be expected to cause the least danger to civilian lives and to civilian objects.57 The Pamphlet observes that "[p]recautionary measures are not a substitute for the general immunity of the civilian population, but an attempt to give effect to the immunity of civilians and the requirements of military necessity."58 These measures in effect impose additionalrestraints on attacks against legitimate military targets. Thus, the planners of a particular attack must (l) initially verify that the object selected is a lawful military objective; (2) avoid, or at least, minimize incidental civilian casualties and damage; (3) ensure that such casualties and damages are not disproportionate to the "direct and concrete" military advantage anticipated; and (4) do everything feasible to verify that military objectives are in fact being attacked and not civilians or civilian objects. VERIFICATION OF MILITARY OBJECTIVES Both Article 57 and the Air Force Pamphlet adopt a "feasible" precautions standard in connection with target verification and the rule of proportionality. The New Rules explains that the word "feasible" was understood to mean "that which is practicable or practically possible."59 The U.S. and its NATO allies at the Diplomatic Conference expressed the understanding that this term means "that which is practicable or practically possible taking into account all the circumstances at the time, including those relevant to the success of military operations."60 The New Rules indicates that the requirement that the planner do "everything feasible" to verify that the target selected is a military objective involves "a continuing obligation to assign a high priority to the collection, collation, evaluation and dissemination of timely target intelligence. It must be observed, however, that the adverse Party will do its utmost to frustrate target intelligence activity and may be expected to employ ruses to conceal, deceive and confuse reconnaissance means."61 The Air Force Pamphlet states in this regard: "Sound target intelligence also enhances military effectiveness by insuring that the risks undertaken are militarily worthwhile. It is also a matter of conservation of vitalresources. Economy of force, concentration of effort and maximization of military advantage support such efforts."62 COLLATERAL CASUALTIES AND DAMAGE The duty under Article 57(2)(a)(ii) and the Air Force Pamphlet to "take all feasible precautions in the choice of means and methods of attack" to avoid or minimize incidental civilian casualties and damage to civilian objects is "an injunction to promote the maximum feasible accuracy in the conduct of bombardments of military objectives situated in populated places."63 The Air Force Pamphlet, while indicating that civilian casualties "are to be avoided to the greatest extent possible," states that "international law has long recognized that civilian casualties and damage to civilian objects, although regrettable, do occur in armed conflict."64
THE RULE OF PROPORTIONALITY The Air Force Pamphlet and Article 57(2)(a)(ii) both restate and codify the rule of proportionality as a required precautionary measure. As previously explained, this rule prohibits an attack if the foreseeable injury or damage would be excessive or disproportionate compared with the "concrete and direct" military advantage anticipated. CANCELLATION OR SUSPENSION OF ATTACKS Customary law and traditional military doctrines, codified in Article 57(2)(b) of Protocol I and the Air Force Pamphlet, require the cancellation or suspension of an attack if it becomes apparent that a given target is not a military objective or that the attack will cause excessive collateral casualties and damage in relation to the concrete and direct military advantage anticipated. The New Rules indicates that this obligation is so phrased as to "apply to all commanders who have the authority to cancel or suspend attacks, including those at higher echelons who frequently have better intelligence sources than those actually engaged. But it also applies to the commander of military organizations actually engaged in combat."67 The authors of the New Rules make the following important point concerning application of the rule of proportionality: In a co-ordinated military operation, the relative importance of the military objective under attack in relation to the concrete and direct military advantage anticipated is not a matter which can be determined by individual tank leaders, the commanders of lower echelon combat units or individual attacking bomber aircraft. If assigned a fire or bombing mission they must assume that an appropriate assessment has been made by those who assigned the mission. Thus, in this situation, the decision to cancel will have to be made at the level where the decision to initiate the attack was made. Article 85(3) evidences recognition that responsibility for causing excessive loss of civilian lives or injury or excessive damage to civilian objects rests on those who know such consequences to be excessive.68 WARNING REQUIREMENT Both Article 57(2)(c) and the Air Force Pamphlet require the giving of "effective advance warning" of attacks which may affect the civilian population, unless circumstances do not permit. This requirement is based on and reaffirms Article 6 of the Hague Convention No. IX of 1907 relating to Bombardment of Naval Forces.69 The New Rules notes that since the element of surprise is frequently critical to air operations, "and as a warning serves to alert air defence forces as well as to provide civilians an opportunity to takeshelter, the practice of states during and after World War II has been either to omit warnings or to make them so general and unspecific as not to serve the intended purpose."70 While the Air Force Pamphlet makes a similar assertion,71 it does observe, however, that "[m]ore recently, increased emphasis has been placed on the desirability and necessity of prior warnings."72 SPECIAL LEGAL PROTECTION Although Protocol I's provisions on the regulation of attacks are more detailed than those of prior law, they remain to a large extent general principles which require subjective judgment in specific situations. To reduce this subjective realm, the Diplomatic Conference developed a series of specific provisions regulating attacks on particular objects and specific areas. PROHIBITION AGAINST STARVATION
By prohibiting starvation of the civilian population as a method of warfare, Article 54 establishes a substantially new rule which has beenaccepted by the U.S. Government as customary law.73 This article provides: 1. Starvation of civilians as a method of warfare is prohibited. 2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. 3. The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party: a) as sustenance solely for the members of its armed forces; or b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement. 4. These objects shall not be made the object of reprisals. 5. In recognition of the vital requirements of any party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflictwithin such territory under its own control where required by imperative military necessity. Paragraph 1 of Article 54 prohibits starvation as a method of warfare, "i.e., a weapon to annihilate or weaken the population."74 The ICRC Commentary states: To use it as a method of warfare would be to provoke it deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies. It is clear that activities conducted for this purpose would be incompatible with the general principle of protecting the population, which the Diplomatic Conference was concerned to confirm and reinforce.75 It should be noted that the rule in paragraph 2, which prohibits attacks, destruction, removal or rendering useless covered objects, applies only when such action is taken for the specific purpose of denying these items for their sustenance value to the civilian population of either party, or to a combination of the enemy's forces and the civilian population, but not when damage is the collateral effect of an attack on a military target. The New Rules states in this regard: This paragraph does not prohibit the incidental distress of civilians resulting from otherwise lawful military operations. It would not, for example, be unlawful to attack or destroy a railroad line simply because the railroad was used to transport food needed to supply the population of a city, if the railroad was otherwise a military objective under Art. 52. Such incidental effects are regulated to some degree by Art. 57 and Arts. 68-71 dealing with relief actions.76 Paragraph 3 specifies the two situations in which the objects covered lose their special protection from direct attack, destruction or removal. Subparagraph 3(a) permits supplies of foodstuffs intended for the sole use of the enemy's armed forces to be attacked or destroyed. The New Rules indicates that this exception generally applies "to supplies already in the hands of the adverse party's armed forces because it is only at that point that one could know that they are intended for use only for the members of the enemy's armed forces."77 However, it would not be permissible to destroy objects "in the military supply system intended for the sustenance of prisoners of war, the civilian population of occupied territory or persons classified as civilians serving with, or accompanying the armed forces."78 The ICRC Commentary indicates that this permission to target enemy armed forces' foodstuffs "is undoubtedly concerned with foodstuffs and the agricultural areas producing them, crops, livestock, and supplies of drinking water, but not with installations for drinking water or irrigation works."79 The Commentary notes, however, that while "some supplies of foodstuffs or drinking water can serve to sustain the armed forces, this possibility does not seem sufficient reason for depriving such objects of the protection it was agreed to afford them."80 The second situation resulting in loss of protection for foodstuffs is set forth in subparagraph (b). This exception permits attacks against objects when used for a purpose other than the subsistence of the enemy's forces and such use is "in direct support of military action." The New Rules states that the phrase "direct support of military action" is narrower than the phrase "effective contribution to military action" in Article 52, which could include indirect support.81
Even if action is taken against covered objects under this exception, other provisions of paragraph 3(b) limit such action by prohibiting those "which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement."84 The New Rules indicates, however, that "Art. 57 provides the limitations on the effects of the attack, if the purpose of the attack is to deny the adverse Party the direct support to military action afforded by the object (other than its sustenance value) and if the two pronged test of Art. 52 [military objectives] is met."85 Both the ICRC Commentary and the New Rules agree that the term civilian population referred to in paragraph 2(b) does not refer to the civilian population of the country as a whole, but rather to the population of "an immediate area," although the size of the area was not defined by the Diplomatic Conference.86 SPECIAL PROTECTION FOR CIVILIAN DEFENSE SHELTERS Articles 62-65 of Protocol I create new rules applicable to civilian civil defense personnel, activities and objects. Article 62(l)87 accords general protection from direct attacks against civilian civil defense organizations and personnel. Paragraph 3 provides, among other things, that "[b]uildings and materiel used for civil defence purposes and shelters provided for the civilian population are covered by Art. 52 [Protocol I]." While indicating that these facilities are protected to the same extent as civilian objects, the New Rules notes: A very difficult question in this connection is whether this reference to the protection of civilian objects in general also includes a reference to the definition in Art. 52, para. 2, which could mean that civil defence material making an effective contribution to military action would not be considered as a civilian object and thus not be considered as protected under Art. 52. This is of particular importance for those civil defence functions which are close to military efforts, such as warning and decontamination. The difficulty is, however, perhaps more apparent than real. The question is whether equipment used "to protect the civilian population" within the meaning of the introductory phrase of Art. 61 couldever be considered as "making an effective contribution to military action". The two purposes would be considered as being mutually exclusive. Thus the situation would be similar to that of medical units where their obvious utility for the military effort does not result in a loss of protection. It is only when they are used "outside their humanitarian function" to commit acts harmful to the enemy that they lose their protection. The same holds true for civil defence personnel, organizations and equipment used outside their "proper" task. Thus, civil defence equipment used exclusively for the purposes mentioned in Art. 61 may never be considered as a military objective under Art. 52.88 The general protection from attacks enjoyed by civilian civil defense personnel and objects ceases only if "they commit or are used to commit, outside their proper tasks, acts harmful to the enemy."89 Paragraph 2 of Article 65 lists the following as not constituting acts "harmful to the enemy." (a) that civil defence tasks are carried out under the direction or control of military authorities; (b) that civilian civil defence personnel co-operate with military personnel in the performance of civil defence tasks, or that some military personnel are attached to civilian civil defence organizations; (c) that the performance of civil defence tasks may incidentally benefit military victims, particularly those who are hors de combat. However, even in the event that these objects or personnel are used for hostile purposes, Article 65(1) specifies that their protectionagainst attack ceases "only after a warning has been given setting, whenever appropriate, a reasonable time limit, and after such warning has remained unheeded." (Emphasis added). The U.S. Government has declared its support for the principle that civilian civil defense organizations and their personnel should be respected and protected as part of the civilian population, but to date has expressed no view on the grounds for cessation of such protection set forth in Article 65.90 1 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protections of Victims of International Armed Conflicts (Protocol I) of June 8, 1977, opened for signature December 12, 1977, U.N. Doc. A/32/144, Annex I, II (1977), reprinted in 16 I.L.M. 1391 (1977) [hereinafter Protocol I]. This instrument, which supplements the four 1949 Geneva Conventions for the Protection of War Victims, codifies and updates legal restraints on means and methods of warfare to provide more effective protection to the civilian population against the effects of hostilities in international armed conflicts. 2 See Michael J. Matheson, Deputy Legal Advisor at the U.S. Department of State, "The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions," Speech on January 22, 1987 at the 6th Annual American Red Cross - Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949Geneva Conventions, 2 The American University Journal of International Law and Policy, Fall 1987, at 419 [hereinafter Matheson]. 3 It does not discuss, for example, prohibitions on the use of chemical, biological and other poisonous weapons; prohibitions against seizure or destruction of enemy property; or the special protections afforded prisoner-of-war camps, medical units and transport, and various other protected objects. 4 The term aerial bombardment includes, among other things "dropping munitions from manned or unmanned aircraft, strafing, and using missiles or rockets against enemy targets on land." U.S. Dept of the Air Force, Air Force Pamphlet No. 110-31, International Law -- The Conduct of Armed Conflict and Air Operations, November 19, 1976, para. 5-1 at 5-1 [hereinafter Air Force Pamphlet]. 5 Air Force Pamphlet, para. 1-3(c) at 1-7. The 1907 Hague Regulations are annexed to Hague Convention (IV) of October 18, 1907, Respecting the Laws and Customs of War on Land, 36 Stat. 2227, T.S. 539, reprinted in D. Schindler & J. Toman, The Law of Armed Conflict 63-68 (1981). The United States is a Party to this Convention which, together with its annexed Regulations, remains the most authoritative source of law for the United States in the conduct of actual military operations. 6 Air Force Pamphlet, para. l-3(a)(1) at 1-5-1-6. 8 Id., para. 1-3 (a) (1) at 1-6. 9 Id., para. l-3(a)(2) at 1-6. 11 G.A.Res. 2444, 23 U.N. GAOR Supp. (No. 18) at 164, U.N. Doc. A/7433 (1968). 12 See letter from the General Counsel, United States Department of Defense, to Senator Edward M. Kennedy (September 22, 1968), reprinted in Rovine, Contemporary Practice of United States Relating to International Law, 67 American Journal of International Law at 122-26 (1973). 13 Air Force Pamphlet, para. 5-3 (a)(2)(b) at 5-8. 14 See generally Remarks of Hamilton DeSaussure delivered at the American Red Cross - Washington College of Law Conference on International Humanitarian Law in 31 The American University Law Review, Summer 1982 at 883-889; J. Spaight, Air Power and War Rights (3d ed. 1947) at 275; J. Spaight, Air Power in the Cities (1930) at 110. 15 Art. 51(7) provides: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations."
16 Air Force Pamphlet, para. 5-3 (a)(2)(b) at 5-8. 18 Air Force Pamphlet, para. 5-3(a)(1) at 5-7. 19 Protocol I, Art. 50(l) defines a civilian as "any person who does not belong to one of the categories referred to in article 4 A (l),(2),(3), and (6) of the Third Convention and in article 43 of this Protocol." In pertinent part the persons listed in Article 4(A) of the Third Geneva Convention are: members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces; members of other militias and volunteer corps, provided that they fulfill certain conditions; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power.
22 Air Force Pamphlet, para. 5-3(b)(1) at 5-8-5-9. 23 Air Force Pamphlet, para. 5-3(b)(2) at 5-9. 24 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987) at 636 [hereinafter ICRC Commentary]. 28 Frits Kalshoven, "Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977," 9 Netherlands Yearbook of International Law 107, 111 (1978). 30 Air Force Pamphlet, para. 5-3(b)(2) at 5-9. 31 "Military objectives include, for example, factories producing munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and railroads being used for the transportation of military supplies, and other places that are for the accommodation of troops or the support of military operations." Department of the Army, Field Manual 27-10, The Law of Land Warfare (July 1956), change no. 1 (15 July 1976), para. 40 (c) [hereinafter Army FM 27-10]. 32 Targets listed as proper for naval attack include such military objectives as "enemy warships and military aircraft, naval and military auxiliaries, naval and military bases ashore, warship construction and repair facilities, military depots and warehouses, POL [petroleum, oil and lubricants] storage areas, docks, port facilities, harbors, bridges, airfields, military vehicles, armor, artillery, ammunition stores, troop concentrations and embarkation points, lines of communication and other objects used to conduct or support military operations. Proper naval targets also include geographic targets, such as a mountain pass, and buildings and facilities that provide administrative and personnel support for military and naval operations such as barracks, communications and command and control facilities, headquarters buildings, mess halls, and training areas." (footnote omitted) Department of the Navy, Annotated Supplement to The Commander's Handbook on the Law of Naval Operations (NWP 9 (Rev. A)/ FMFM 1-10) (October 5, 1989), para, 8.1.1 at 8-2 [hereinafter Naval Manual]. 33 ICRC Commentary, at 632-33. 34 Air Force Pamphlet, para. 5-3 (b)(2) at 5-9 (footnote omitted). 38 See Air Force Pamphlet, para. 5-3 (c)(1)(b)(i)(c) at 5-9 and para. 5-3 (c)(2)(b) at 5-10; Army FM 27-10, at para. 41; Naval Manual, para. 8.1.2.1 at 8-5. 43 New Rules at 311 (footnote omitted). 44 Air Force Pamphlet at para. 5-3(c)(2)(b) at 5-10. The Naval Manual, para. 8.l.2.l at 8-5, states: It is not unlawful to cause incidental injury or death to civilians, or collateral damage to civilian objects, during an attack upon a legitimate military objective. Incidental injury or collateral damage should not, however, be excessive in light of the military advantage anticipated by the attack. Naval commanders must take all practicable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the absolute minimum consistent with mission accomplishment and the security of the force. In each instance, the commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him. (footnotes omitted). The U.S. Army Field Manual 27-10 echoes this: loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must take all reasonable steps to insure . . . that those objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated." at para. 41. 45 Pentagon Interim Report at 12-2. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: a) those which are not directed at a specific military objective;
5. Among others, the following types of attacks are to be considered as indiscriminate:
53 The New Rules indicates that for this rule to apply the "concentration" of civilians must actually be endangered by the attack. "[T]he rule would not be violated if the civilian population has evacuated the town or city before the attack or if the entire locality is used for military purposes." Id. at 309. However, civilians remaining in the town or city would retain the benefits of the rule of proportionality. 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: a) those who plan or decide upon an attack shall: i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
b) an attack shall be canceled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. 5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects. 57 Air Force Pamphlet, para. 5-3(c)(1) at 5-9-5-10. 58 Air Force Pamphlet para. 5-3(c)(2) at 5-10. The Pamphlet also notes: Since states have not always separated military activities from civilian activities, a geographical and functional mixture of combatants and civilians and military objectives and civilian objects often results.... Dangers to civilian populations in a given situation vary according to the military objective attacked, configuration of terrain, type of weapons used, meteorological conditions, the presence of civilians at the scene or in the immediate vicinity and a particular combatant's ability and mastery of bombardment techniques as well as the level of the conflict and the type of resistance to be encountered during the attack. Permissible bombardment techniques vary according to such factors. Id. 60 Id. (footnote omitted). See also W. Hays Parks, "Air War and the Law of War," 32 Air Force Law Review at 156. 62 Air Force Pamphlet, para. 5-3 (c)(2)(a) at 5-10. 63 New Rules at 364. The term "means" of attack, combat or warfare generally refers to the weapon deployed while the term "methods" of attack generally refers to the way in which such weapons are used. ICRC Commentary at 621. 64 Air Force Pamphlet, para. 5-3 (c)(2)(b) at 5-10. 67 New Rules at 366 (footnote omitted). The term "attacks" refers to acts of violence, whether offensive or defensive. "The thrust of the term `attacks' as used in Art. 57 deals with the fire aspect of the operation, not necessarily the movement part." Id. (footnote omitted). While offensive operations may be difficult to halt, any commander even at the lowest echelon can and must halt fire on a target that he has mistaken as a military objective when he realizes that his target consists of civilians or specially protected objects. Halting fire at a target which does not pose a threat against the attacking element in no way delays the movement of a unit of the armed forces engaged in an offensive military operation. Thus the first clause of subpara. 2(b) causes no problem to combatants who respect the rules applicable in armed conflict. Id. 68 Id. at 366-67 (footnote omitted). 69 Art. 6 provides "If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities." (Hague Conventions (IX) of October 18, 1907, Respecting Bombardment by Naval Forces in Time of War). The New Rules indicates that subparagraph 2(c) of Article 57 "relaxes the warning requirement of Art. 26 of the Hague Regulations of 1907, which permits derogations only in case of assault." New Rules at 367. See also warning requirement in Air Force Pamphlet, para. 5-3 (c)(2)(d) at 5-11. 70 New Rules at 367. "This practice is supported by the negotiating record of the Hague Regulations which suggests that the `assault' exception includes all cases where surprise is required." (footnote omitted). 71 The Pamphlet states: "During World War II, practice was lax on warnings because of the heavily defended nature of the targets attacked as well as because of attempts to conceal targets.... Nevertheless, the practice of states recognizes that warnings need not always be given. General warnings are more frequently given than specific warnings, lest the attacking force or the success of its mission be jeopardized." Air Force Pamphlet, para. 5-3 (c)(2)(d) at 5-11. 82 ICRC Commentary at 657. The New Rules gives the following examples of direct support: "an irrigation canal used as part of a defensive position, a water tower used as an observation post, or a cornfield used as cover for the infiltration of an attacking force." (at 341.) 86 See New Rules at 341; ICRC Commentary at 656. 1. Civilian civil defence organizations and their personnel shall be respected and protected, subject to the provisions of this Protocol, particularly the provisions of this Section. They shall be entitled to perform their civil defence tasks except in case of imperative military necessity.
88 New Rules at 402 (footnote omitted).
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