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References
The British point of view is offered in Solly Zuckerman, From Apes to Warlords (1978), pp. 244, 306, 319, 344, 352, 422–424. Zuckerman was the architect and chief proponent of the British argument. The American view is contained in W.W. Rostow, Pre-Invasion Bombing Strategy (1981). Appendix 5 (pp. 420–421) of Professor Zuckerman’s book is an excerpt from the post-war British Bombing Survey Unit (BBSU) report, supporting the British (Zuckerman’s) position. Zuckerman neglects to note that he was the author of the BBSU conclusions. See Sebastian Cox, “Introduction”, in British Bombing Survey Unit, in: The Strategic Air War Against Germany 1939–1945 (reprint ed., 1998), p. xviii. The British-American pre-D-Day debate became somewhat moot, as ultimately both transportation and oil targets were attacked by British and American forces. The debate highlights the situational nature of targeting priorities, as it centred on which target set would have the greatest effect on preventing Wehrmachtcounterattack of Allied forces as they landed at Normandy. Subsequently the issue was which target category would contribute to German defeat. The answer was both.
Article 51, para. 3, 1977 Protocol I Additional to the Geneva Conventions of August 12, 1949, contained in Dietrich Schindler/Jiři Toman, The Laws of Armed Conflicts (Fourth Rev. and Completed Ed., 2004), p. 651.
Article 27 of the Annex to Hague Convention IV contains language similar to the quoted language from Article 51, para. 3 of Additional Protocol I for certain civilian objects, declaring: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.” [emphasis provided]. Id., p. 84.
Id., pp. 3–20.
Schindler/ Toman, supra n. 2, pp. 21–28.
Id., pp. 29–40.
Id., pp. 55–97.
Id., pp. 91–93.
Id., pp. 55–97.
In a 1925 lecture at the U.S. Army War College, Major General Mason Patrick, Chief of the U.S. Army Air Corps, citing Captain B.H. Liddell Hart’s “Paris, or the Future of War” (1925), agreed with the British author’s purported thesis that the main military objective in war is the “will of the enemy to fight” rather than defeat of his armed forces in the field. Major General Haywood S. Hansell, Jr., USAF, The Air Plan that Defeated Hitler (Privately published, 1972), p. 10. That said, Patrick’s thesis was not Liddell Hart’s. Liddell Hart declared that the means to the moral objective, that is, the enemy’s will to resist, was not limited to its military forces, but included its economic, political and social spheres which Liddell Hart then concluded “was outside our purview”. Paris, or the Future of War, pp. 27, 28. Pre-World War II airpower focus on enemy morale incorrectly emphasized the political, economic and social–with emphasis on the latter–to the exclusion of attacks on enemy military forces. Similarly, in pre-World War II lectures at the Air Corps Tactical School, a U.S. Army Air Corps officer stated: “We find throughout the pages of military writings statements that the objective of war is the destruction on the field of battle of the enemy’s main forces. Such a conclusion is a confusion of the means with the end. The destruction of the military forces of the enemy is not now and never has been the objective of war; it has been merely a means to an end–merely the removal of an obstacle which lay in the path of overcoming the will to resist.’ [emphasis in original]. Captain (later Lieutenant General) Harold E. George, as quoted in Hansell, id., p. 33.
Maurice Pearton, Diplomacy, War and Technology Since 1830 (1984), p. 75 [emphasis in original].
See, for example, Joseph T. Glatthaar, The March to the Sea and Beyond (1985). Sherman’s attack of Confederate railroads was the model for the allied air offensive against Germany’s rail lines eighty years later; see generally A. C. Mierzejewski, The Collapse of the Germany War Economy, 1944–1945 (1988).
See, for example, Nigel Hawkins, The Starvation Blockades: Naval Blockades of World War I (2001).
A general, excellent history of the First Hague Peace Conference is Arthur Eyffinger, The 1899 Hague Peace Conference (2001).
Schindler/ Toman, supra n. 2, p. 55–87.
Id., article 27.
James Brown Scott, I The Hague Peace Conferences of 1899 and 1907 (1939), p. 537. For example, article 26 restates article 19 of the Lieber Code, while article 27 is a restatement of articles 35 and 36 of the Lieber Code.
Schindler/ Toman, supra n. 2, pp. 1079–1086.
J. Scott (ed.), Instructions to the American Delegates to the Hague Peace Conferences and Their Official Reports (1916), p. 122.
Henry W. Miller, The Paris Gun (1930), pp. vii, viii, 68, 70.
Edward L. Homze, Arming the Luftwaffe (1976), p. 3. See also Barton Whaley, Covert German Rearmament, 1919–1939 (1984).
For a history of failed attempts to ban or regulate submarine warfare and covert German submarine rearmament between the wars, see this author’s “Making Law of War Treaties: Lessons from Submarine Warfare Regulation” in: Michael N. Schmitt (ed.), International Law Across the Conflict Spectrum: Essays in Honor of Professor L. C. Green, Volume 75, Naval War College International Law Studies (2001).
The official Commission records are “ Commission of Jurists to Consider and Report Upon the Revision of the Rules of War” (1923). As was the case with the Washington Naval Conference, Germany was not invited. A comprehensive discussion of the conference and its results is Heinz Marcuss Hanke, The 1923 Hague Rules of Air Warfare, in: International Review of the Red Cross 292 (January–February 1993), pp. 12–44.
John Bassett Moore, International Law and Some Current Illusions and Other Essays (1924), p. 197.
The rules in their entirety are contained in Schindler/Toman, supra n. 2, pp. 315–325. They are far more comprehensive than this discussion suggests, consisting of provisions related to external markings and other qualifications of belligerent aircraft; use by or against aircraft of incendiary or explosive projectiles; aircraft use for information warfare; aerial bombardment; the right of a State party to a conflict to establish exclusion zones and to warn off neutral aircraft; treatment of captured aircraft crews; relations with neutral states; and the law relating to visit, search, capture and condemnation in connection with the exercise of blockade and contraband. The rules are not and were not intended to be exhaustive.
While airpower proponents subsequently were critical of this provision, it was consistent with U.S. War Department policy at the time, which — deriving from U.S. World War I aviation experience — “denied the importance of ‘independent’ air operations beyond the immediate rear of the enemy ground forces”. Hansell, supra n. 10, p. 7.
Schindler/ Toman, supra n. 2, p. 315.
H. Lauterpacht (ed.), International Law by Oppenheim, Vol. II: Disputes, War and Neutrality (7th ed., 1952), p. 519 [emphasis provided].
Sir Charles Webster/ Noble Frankland, The Strategic Air Offensive Against German 1939–1945 [hereinafter SAOG] (1961), Volume I, pp. 14–15.
Id., IV, p. 74.
Id., p. 78.
Id., p. 74.
Elbridge Colby, Aerial Law and War Targets, 19 Am. J. Int’l. L (1929), p. 713; Frank E. Quindry, Aerial Bombardment of Civilian and Military Objectives, 2 Journal of Air Law and Commerce (October 1931), pp. 474–509, at 484; James Moloney Spaight, Air Power and War Rights (1924), pp. 226–259; and James Moloney Spaight, The Chaotic State of International Law Governing Aerial Bombardment, in: The Air Force Quarterly 9 (1938), pp. 24–32.
Tami Davis Biddle, Rhetoric and Reality in Air Warfare: The Evolution of British and American Ideas about Strategic Bombing, 1914–1945 (2002), p. 153.
Spaight, Air Power and War Rights, supra n. 33, pp. 212–238.
Aleading account of this period is Uri Bialer, The Shadow of the Bomber: The Fear of Air Attack and British Politics 1932–1939 (1980).
Hanke, supra n. 23, pp. 24–25.
An excellent summary is Biddle, supra n. 34, pp. 77–81.
Id., p. 147.
Horst Boog, A German View, in: Sir Arthur T. Harris, Despatch on War Operations, 23rd February 1942 to 8th May 1945 (Reprint ed., 1995), p. xi.
Williamson Murray, Strategy for Defeat: The Luftwaffe 1933–1945 (1983), p. 10.
Mark Connelly, Reaching for the Stars: A New History of Bomber Command in World War II (2001), p. 49.
Id., p. 77.
Malcolm Smith, British Air Strategy between the Wars (1984), p. 61.
Biddle, supra n. 34, p. 79.
Wing-Commander C. Edmonds, RAF, at the Royal United Services Institution, December 12, 1923, as quoted in David E. Omissi, Air Power and Colonial Control: The Royal Air Force, 1919–1939 (1990), p. 107.
Biddle, supra n. 34, p. 139.
Major Sherman authored “Air Warfare” (1926), regarded at the time as a leading treatise on the subject, shortly before his death on November 22, 1927.
Id., pp. 5, 210–214.
Tami Davis Biddle, Air Power, in: Michael Howard/George J. Andreopoulos/Mark R. Shulman (eds.), The Laws of War: Constraints on Warfare in the Western World (1994), p. 151, citing: International Air Regulations, Air Corps Tactical School, 1933–1934. Air Force Historical Research Center, file no. 248.101-16. Stephen L. McFarland, America’s Pursuit of Precision Bombing 1910–1945 (1995), p. 101, identifies key dissenters, many of whom were responsible for writing the U.S. World War II Air War Plan AWPD-1. On AWPD-1, see Barry D. Watts, The Foundations of Air Force Doctrine (1984), pp. 17–23.
Williamson Murray, Luftwaffe (1985), pp. 8, 11.
Biddle, supra n. 34, pp. 69–175.
Parks, Air War and the Law of War, in: Air University Review 32,1 (1990), pp. 36–37.
Spaight, Air Power and War Rights, 3rd ed. (1947), p. 257.
Spaight, British Public Records Office file AIR 41/5 (June 1945), at D-1.
Schindler/ Toman, supra n. 2, pp. 329–330. A Draft Convention for the Protection of Civilian Populations against New Engines of War adopted by the International Law Association on September 30, 1938, contained at Schindler/Toman, supra n. 2, pp. 331–336, received no acknowledgement or reference in the League of Nations resolution.
In addition to works previously cited, recent literature in the continuing debate includes Olaf Groehler, The Strategic Air War and Its Impact on the German Civilian Population, in: The Conduct of the Air War in the Second World War, supra n. 161, pp. 279–297; Brereton Greenhous/Stephen J. Harris/William C. Johnston/William G.P. Rawling, The Crucible of War 1939–1945, III The Official History of the Royal Canadian Air Force (1994), pp. 523–867; Kenneth P. Werrell, Blankets of Fire: U.S. Bombers over Japan during World War II (1996); Robin Neillands, The Bomber War: The Allied Air Offensive Against Nazi Germany (2001); Henry Probert, Bomber Harris (2001); and Hermann Knell, To Destroy a City: Strategic Bombing and Its Human Consequences in World War II (2003).
Portions of the text that follows are based upon this author’s: The Protection of Civilians from Air Warfare, 27 Israel Yearbook on Human Rights 65–111 (1998).
Parks, Air War and the Law of War, in: Air Force Law Review (1990), pp. 1–225, at 54; id., Air War and the Laws of War, in: Horst Boog (ed.), The Conduct of the Air War in the Second World War (1992), pp. 310–372, at 354; The Protection of Civilians from Air Warfare, id., p. 67, and its accompanying footnote 9. The second reference, contained in “The Conduct of the Air War in the Second World War”, was part of the program, “Luftkriegführung im Zweiten Weltkrieg Ein Internationaler Vergleich”, Internationalen Wissenschaftlichen Tagung des Militärgeschictlichen Forschungsamtes, August 29 — September 2, 1988, Freiburg in Breisgau.
See this author’s:’ Precision’ and ‘Area’ Bombing: Who Did Which, and When, 18,1 The Journal of Strategic Studies 145–174 (March 1995), comparing British and American area bombing practices, relative accuracy, and lack of concern for collateral civilian casualties other than in German-occupied territory.
Parks, Protection of Civilians, supra n. 59, p. 72.
A list of strategic targets as well as a notable comparison of the relative success of special operations forces vis-à-vis aerial attack — with significantly less risk to the civilian population — is contained in M.R.D. Foot, SOE in France (1966), at Appendix G, pp. 505–517. The total amount of explosives employed by the British Special Operations Executive (SOE) in attack of strategic targets in France — 3,000 pounds — was less than one-sixth the bomb load of a single Royal Air Force Lancaster bomber. In essence special operations forces were the precision munitions of World War II.
See Parks, Air War and the Law of War, supra n. 53, pp. 206–209, for a history of the attack of dams and dikes in World War II, Korea, and Viet Nam.
The attack is described in Carroll Glines, The Doolittle Raid (1988); and D. Schultz, The Doolittle Raid (1988). Colonel Jermain F. Rodenhauser concluded that the Doolittle raid had significant impact on Japanese strategy because the Japanese high command thought the raid originated in Midway, leading to the Battle of Midway, in which the Imperial Japanese Navy suffered a catastrophic defeat less than two months later. Rodenhauser, The Doolittle Influence on the Pacific War, 3 Air University Quarterly Review (Spring 1950), pp. 25–30. Colonel Rodenhauser’s analysis and conclusion was based on his interviews with key Japanese military officers as a member of the Military Analysis Division of the United States Strategic Bombing Survey (USSBS). The USSBS report concludes in part: “The raid was too small to do substantial physical damage, but its repercussions on the planning level of the high command were considerable... [A]ttention was focused on the eastern approaches to the home islands, and additional impetus given the prewar plan to attack Midway and the Aleutians... [and] the Japanese began to implement their plans for air defense of Japan which before that time had received scant consideration...#x201D; United States Strategic Bombing Survey, Japanese Air Power (1946), p. 10. Naval historian Samuel Eliot Morison, agreeing with the USSBS, commented: “The [Doolittle raid]... did not inflict one-thousandth part of the damage it was supposed to revenge [for the Japanese attack on Pearl Harbor]... The Japanese authorities... pinned down hundreds of planes to defend Tokyo. And, what is more important, the event expedited plans for an overextension that led to the Japanese defeat at Midway.” Morison, The Two-Ocean War (1963), p. 140. Subsequent histories support this conclusion. See Ron Spector, Eagle Against the Sun (1985), p. 155; John Keegan, The Second World War (1989), p. 271.
Originally German civilian morale was not regarded as a valid objective “until widespread defeatism had been engendered by heavy air attacks against the systems which supported the means to fight and the means to live.” Hansell, supra n. 10, p. 85. The initial Allied POINTBLANK strategic bombing plan developed at Casablanca supported this emphasis or priority of attack: “Your primary object will be the progressive destruction and dislocation of the German military, industrial and economic system, and the undermining of the morale of the German people to a point where their capacity for armed resistance is fatally weakened.” SAOG II, supra n. 29, pp. 12–14. As the war progressed, however, emphasis on attacks on morale increased. Id., III, pp. 52–57.
Arthur Harris, Bomber Command (1947), at 75, 76. This view is shared by the official British history of the Allied strategic air offensive against Germany; SAOG III, id., pp. 302–303. For similar comments regarding the effect of Luftwaffe attacks on British morale, see Richard M. Titmuss, Problems of Social Policy (1950), p. 349.
British Bombing Survey Unit, Overall Report, Air 10/3866, supra n. 1, p. 79.
United States Strategic Bombing Survey (USSBS), Summary Report–European War (1945), p. 16.
Mierzejewski, supra n. 12, p. 185. See also Biddle, supra n. 34, pp. 277–279.
David MacIsaac, Strategic Bombing in World War Two: The Story of the United States Strategic Bombing Survey (1976), p. 164 [emphasis in original]. In summarizing the discussions of the experts who complied the Strategic Bombing Survey, the author notes: “Repeatedly they stressed their joint conclusion that enemy civilian morale was not a productive target, that while morale can be adversely affected by air attack, there can be no predictable translation of morale effects into behavior effects. And behavior, not morale, was what counted” (p. 101). See also David MacIsaac, The United States Strategic Bombing Survey (Reprint, 1976), Volume IV, pp. vii–ix.
A comprehensive history is Michael Russell Rip/James M. Hasik, The Precision Revolution (2002). See also Richard P. Hallion, Precision Guided Munitions and the New Era of Warfare, in: Air Power History 43,3 (Fall 1996), pp. 4–21, and Michael N. Schmitt, The Impact of High and Low-Tech Warfare on the Principle of Distinction, Harvard Program on Humanitarian Policy and Conflict Research, International Humanitarian Law Research Initiative Briefing Paper (November 2003).
Schindler/ Toman, supra n. 2, pp. 339–344.
In particular, see Michael Bothe/Karl Josef Partsch/Waldemar A. Solf, New Rules for Victims of Armed Conflicts (1982).
Schindler/ Toman, supra n. 2, pp. 181–236. Its official title is United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of 10 October 1980.
Bothe/ Partsch/ Solf, supra n. 75, pp. 321–326.
A. P.V. Rogers, Law on the Battlefield (1996), pp. 34–37. These have been incorporated into British Ministry of Defence, The Manual of the Law of Armed Conflict (2004), pp. 56–57, para. 5.4.5. See also Yoram Dinstein, Legitimate Military Objectives Under the Current Jus in Bello, in: Andru E. Wall (ed.), Legal and Ethical Lessons in NATO’s Kosovo Campaign (2002), pp. 139–172, and Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), pp. 84–99.
Dinstein, Conduct of Hostilities, supra n. 80, pp. 88–89. Dinstein identifies: (1) fixed military fortifications, bases, barracks, installations and emplacements, including training and war-gaming facilities; (2) temporary military camps, entrenchments, staging areas, deployment positions and embarkation points; (3) Military units... whether stationed (sic.) or mobile; (4) Weapon systems, military equipment and ordnance, armour and artillery, and military vehicles of all types; (5) Military aircraft and missiles of all types; (6) Military airfields and missiles of all types; (7) Warships of all types; (8) Military ports and docks; (9) Military depots, munitions dumps, warehouses or stockrooms for the storage of weapons, ordnance, military equipment and supplies (including raw materials for military use, such as petroleum); (10) industrial plants (even when privately owned) engaged in the manufacture of arms, munitions, military supplies and essential parts for military vehicles, vessels or aircraft (like ball-bearing factories); (11) laboratories or other facilities for the research and development of new weapons and military devices; (12) military repair facilities; (13) power plants (electric, hydroelectric, etc.) serving the military; (14) arteries of transportation of strategic importance, principally railroads and rail marshalling yards, major motorways, navigable rivers and canals, including the tunnels and bridges of railways and trunk roads); (15) Ministries of Defence and any national, regional or local operational or coordination centres of command, control and communication related to running the war, including computer centres, as well as telephone and telegraph exchanges, for military use; and (16) intelligence-gathering centres related to the war effort, even when not run by the military establishment.
See also Dinstein, id., pp. 91–92, and: The Manual of the Law of Armed Conflict, supra n. 80, p. 55, para. 5.4.4. At the time of its ratification the United Kingdom deposited the following formal statement of understanding in this respect: “A specific area of land may be a military objective if, because of its location or others reasons specified in... [article 52], its total or partial destruction, capture or neutralization at the time offers a definite military advantage”.
An example is Germany’s Autobahn. In addition to its possible attack as a line of communication, portions of the Autobahn were constructed for and have been used as runways and aircraft service areas in NATO exercises. Railroad construction in Europe during the Nineteenth Century had dual purposes: commerce and to facilitate the mobilization and deployment of military forces. Similarly, the U.S. interstate highway system was begun during the Eisenhower Administration in part as a critical set of lines of communication for national defence purposes; see 23 U.S. Code §§ 101, 103. It was put to that use during the 1990 deployment of Continental U.S.-based U.S. military forces to Southwest Asia for Operations DESERT SHIELD and DESERT STORM, the successful Coalition effort to liberate Kuwait from Iraqi occupation. See also discussion in Dinstein, supra n. 80, pp. 89–90.
Mierzejewski, supra n. 12, p. 75.
See, for example, Francis K. Mason, Battle over Britain (1969), pp. 137–274.
An example where an object failed to meet this standard is the 25 February 1991 recommendation by the U.S. Air Force component of US Central Command for an air attack on a Baghdad statue of Saddam Hussayn and another statue, consisting of matching sets of arms with crossed swords (modelled on the arms of Saddam Hussayn), called the Victory Arch or Crossed Swords Monument, discussed infra; see also Samir al-Khalil, The Monument (1991).
U.S. Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War (1992), p. 613, where military advantage was weighed in terms of execution of the Coalition war plan for the liberation of Kuwait. See also Dinstein, supra n. 80, p. 86.
MacIsaac, supra n. 71, pp. 161–162.
Schindler/ Toman, supra n. 2, p. 815. Germany offered similar declarations: “It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.” “In applying the rule of proportionality in Article 51 and Article 57, ‘military advantage’ is understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.” Id, p. 802.
Jean Marie Henckaerts/ Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (2005), p. 29.
Parks, The ICRC Customary Law Study: A Preliminary Assessment, Annual Meeting of American Society of International Law, Washington, April 1, 2005. See also Daniel Bethlehem QC, The ICRC Customary Law Study: An Assessment, Chatham House, 18 April 2005 (publication pending).
Sir Adam Roberts, Land Warfare: From Hague to Nuremberg, in: The Laws of War: Constraints on Warfare in the Western World, supra n. 50, p. 117.
Dinstein, Conduct of Hostilities, supra in: n. 80, p. 83, and his list recited in note 82 of this paper. In the course of the panel discussion, Professor Wolff Heintschel von Heinegg suggested it might be more appropriate to develop a list of objects disqualified as military objectives. This is an approach for consideration in military manuals. A danger is that even an item normally not regarded as a military objective, such as cultural property, may become a military objective if it meets the definition contained in Article 52(2), such as through its use by enemy forces.
Military hospitals and enemy prisoner of war or civilian internee camps are immune from attack so long as they are not used for acts harmful to the enemy, or in any other way inconsistent with their humanitarian mission. A prisoner of war camp may be the object of an attack or temporary seizure for the purpose of rescuing the prisoners of war, as the U.S. sought to do in its 21 November 1970 raid on the Son Tay prisoner of war camp in the then-Democratic Republic of North Viet Nam. The history of this mission is contained in Benjamin F. Schemmer, The Raid (1976).
U.S. Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War (1992), pp. 95–98.
Yves Sandoz/ Christophe Swinarski/ Bruno Zimerman, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), p. 632, n. 3; and A.P.V. Rogers/P. Malherbe, Model Manual on the Law of Armed Conflict (1999), p. 72.
L.C. Green, The Contemporary Law of Armed Conflict (2nd ed., 2000), p. 191; and Dinstein, Conduct of Hostilities, supra n. 80, pp. 88–89, and found at footnote 82.
For example, Article 8(a) of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict in a non-exhaustive list identifies as an “important military objective... an aerodrome, broadcasting station, establishment engaged upon work of national defense, a port or railway station of relative importance or a main line of communication.” Schindler/Toman, supra n. 2, pp. 999–1025, at 1003.
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995), p. 68. This conclusion raises an interesting issue. The editor of the 1995 San Remo Manual was a co-editor of the 2005 International Committee of the Red Cross Customary International Humanitarian Law study, which concludes the definition of military objective in Article 52(2) of Additional Protocol I is customary international law; Customary International Humanitarian Law, supra n. 86, p. 29. This suggests one of the most rapid moves of a new law to customary law status in history.
The General Belgrano was sunk May 2, 1982, with a loss of 321 lives. Jeffrey Ethel/ Alfred Price, Air War South Atlantic (1983), p. 76.
Hamilton DeSaussure/ Robert Glasser, Air Warfare — Christmas 1972, in: Peter D. Trooboff (ed.), Law and Responsibility in Warfare (1975), pp. 119–139. A rebuttal is Norman R. Thorpe/James R. Miles, Comments, supra, pp. 145–149. The second argument that the object of the bombing was more political than military ignores the fundamental Clausewitzian point that war is politics by other means, and merits no further response.
For an overall narrative and assessment of LINEBACKER operations, see this author’s “LINEBACKER and the Law of War”, Air University Review XXXIV, 2 (January–February 1983), pp. 1–30. Contrary to popular view, the targets attacked by B-52s were not in Hanoi, Haiphong or other populated areas. This author’s Air University Review article details target characteristics, locations and U.S. attack precautions. A leading Viet Nam War history confirms this: “The dispatches of a lone French correspondent on the spot, cited in many American newspaper, television, and radio accounts, referred repeatedly to the “carpet bombing” of downtown areas in Haiphong and Hanoi. But Malcolm Browne of The New York Times reported from Hanoi soon afterward that damage had been “grossly overstated,” and other foreign journalists corroborated his testimony. So did Tran Duy Hung, mayor of Hanoi...#x201D; Stanley Karnow, Vietnam: A History (1983), p. 653.
Parks, supra n. 53, p. 141.
Wall, supra n. 80, pp. 141–122.
The Principle of the Military Objective in the Law of Armed Conflict, in: U.S. A.F. Acad. J. Legal Studies 8 (1997–1998), pp. 35–69, at 45–51.
Alexandra Boivin/ Yves Sandoz, The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare, paper presented to Informal Meeting of Experts on Targeting Military Objectives, Geneva, 12 May 2005, p. 27.
Strategy and Policy in Twentieth-Century Warfare, in: Harmon Memorial Lectures in Military History 1959–1987 (1988), p. 354. The role of coercion in warfare is articulated in Daniel L. Byman/Matthew C. Waxman/Eric Larson, Air Power as a Coercive Instrument (RAND, 1999), and Daniel L. Byman/Matthew C. Waxman, Kosovo and the Great Air Power Debate, in: International Security 24, 4 (March 1, 2000), pp. 5–38. See also Ken Watkin, Canada/United States Military Interoperability and Humanitarian Law Issues, in: Duke Journal of Comparative & International Law 15, 2 (Winter-Spring 2005), pp. 281 et seq.
See, for example, Daniel T. Kuehl, Airpower vs. Electricity: Electric Power as a Target for Strategic Air Operations, in: The Journal of Strategic Studies 18,1 (March 1995), pp. 237–266, at 251, which acknowledges that “Neutralization of the [Iraqi power] grid would serve two strategic purposes, one immediate and military, the other longer-term and political”.
Dinstein, Legitimate Military Objectives, supra n. 80, p. 155.
Dinstein, Conduct of Hostilities, supra n. 80, p. 86.
Bothe/ Partsch/ Solf, supra n. 75, pp. 322–323, citing Article 2, Hague Convention IX, supra n. 16, and Article 8, Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 (Schindler/Toman, supra n. 2, pp. 745–776) [emphasis provided].
Wall, supra n. 80, p. 180.
Louise Doswald Beck, as quoted in Robertson, supra n. 109, p. 46.
Boivin/ Sandoz, supra n. 110, p. 28.
Id., p. 176.
One of the most egregious examples of such policy limitations on attack of a military objective occurred during the 1965–1968 U.S. ROLLING THUNDER air campaign against the Democratic Republic of Viet Nam. North Vietnamese MiG fighter air bases were not authorized for attack by the U.S. national leadership for the first 2 1/2 years of the war, even as they were being used by North Vietnamese fighters to attack U.S. aircraft. North Vietnamese MiG-17 and MiG-21 aircraft could not be attacked even if they were observed taking off to attack U.S. strike forces, and could not be engaged (fired upon) unless and until they fired on U.S. aircraft. Parks, Rolling Thunder and the Law of War, in: Air University Review XXXIII,2 (January–February 1982), pp. 2–23, at 9, 11.
Boivin/Sandoz, supra n. 110, p. 281.
Doswald Beck, supra n. 103, p. 117.
Id., p. 68.
Id., at ix [emphasis provided].
See, for example, Robert Goralski/Russell E. Freeburg, Oil & War: How the Deadly Struggle for Fuel in WWII Meant Victory or Defeat (1987).
See George K. Walker, The Tanker War, 1980–88: Law and Policy (2000).
Robertson, supra n. 109 pp. 197, 207–211; and L.C. Green, The Contemporary Law of Armed Conflict (2nd ed., 2000), p. 191.
A comprehensive discussion of the conflict and its legal issues is contained in Wall, supra n. 80, the proceedings of a colloquium of military officers and international law experts at the U.S. Naval War College, 8–10 August 2001.
NATO Press Statement, 23 March 1999, as cited in Eliot A. Cohen, Kosovo and the New American Way of War, in: Andrew J. Bacevich/Eliot A. Cohen (eds.), War Over Kosovo (2001), pp. 38–61.
Benjamin S. Lambeth, NATO’s Air War in Kosovo (2001).
Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, in Wall, supra n. 80, pp. 483–530.
Stephen T. Hosmer, Why Milosevic Decided to Settle When He Did (RAND, 2001); and Benjamin S. Lambeth, NATO’s Air War for Kosovo (RAND, 2001).
Daniel L. Byman/ Matthew C. Waxman, Kosovo and the Great Air Power Debate, in: International Security 24,4 (March 2000), pp. 5–38.
Eliot A. Cohen, Kosovo and the New American Way of War, supra n. 130, p. 51.
Id., pp. 41–42.
Conrad Crane, Bombing Yugoslavia into Submission: A Review Essay, in: Joint Forces Quarterly 35 (October 2004), pp. 143–144.
Lieutenant General Michael Short, USAF (Ret.), Operation ALLIED FORCE from the Perspective of the NATO Air Commander, in: Wall, supra n. 80, p. 19.
Wall, supra n. 80, pp. 218–219.
Kuehl, supra n. 112, p. 254.
See, for example, Dinstein, Conduct of Hostilities, supra n. 80, pp. 96–97.
Id., p. 252.
Id., pp. 252–254.
Richard Lowry, What Went Right, in: National Review (May 9, 2005), pp. 29–37, at 30.
Rodney A. Burden/ Michael I. Draper/ Douglas A. Rough/ Colin R. Smith/ David L. Wilton, Falklands — The Air War (1986), pp. 164–165.
Article 8(1)(a), in: Schindler/Toman, supra n. 2, p. 1003.
Lieutenant General supra Michael Short, in: Wall, n. 80, p. 30.
James E. Baker, in: Wall, id., p. 16.
Dinstein, in: Wall, supra n. 80, at 218–219; Boivin/Sandoz, supra n. 103, p. 20. The argument in behalf of consideration of ‘dual use’ in targeting is articulated in H. Shue/D. Wippman, Limiting Attacks on Dual Use Facilities Performing Indispensable Civilian Functions, in: Cornell International Law Journal 35 (2002), p. 559.
Boivin/Sandoz, supra n. 110, p. 21.
Boivin/Sandoz, supra n. 110, p. 21.
Hansell, supra n. 10, p. 11.
SAOG III, supra n. 29, p. 56.
Schindler/Toman, supra n. 2, pp. 353–354.
See, for example, U.S. Army Field Manual 27-10, The Law of Land Warfare (1956), 25; and U.S. Air Force Pamphlet 110-31, International Law — The Conduct of Armed Conflict and Air Operations (1976), para. 5–3.
Bothe/Partsch/Solf, supra n. 75, pp. 301–302.
Commentary on the Additional Protocols, supra n. 100, pp. 618 [emphasis supplied].
See, for example, Matthew C. Waxman, Siegecraft and Surrender: The Law and Strategy of Cites as Targets, in: Virginia Journal of International Law 39,2 (Winter 1999), pp. 353–423, at 363.
Affecting civilian morale dates to siege warfare, where the morale of civilians in a besieged city (along with consumption of food and water) offered an incentive to surrender — to the extent that the besieging force had a legal right to fire upon the civilian population to drive it back into the besieged city if they attempted to depart. See, e.g., Lester Nurick, The Distinction Between Combatant and Noncombatant in the Law of War, in: American Journal of International Law 39 (1945), pp. 680–697, at 686. This law of war right persisted in law of war manuals until recent editions. See, for example, U.S. Army Law of War Manual 27-10, Law of Land Warfare (1956), para. 44: “There is no rule of law which compels the commander of an investing force to permit noncombatants to leave a besieged locality. It is within the discretion of the besieging commander whether he will permit noncombatants to leave and under what conditions. Thus, if a commander of a besieged place expels the noncombatants in order to lessen the logistical burden he has to bear, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender.” See also The War Office, The Law of War on Land, being Part III of the Manual of Military Law (1958), at 98, paras. 295, 296. This provision was not carried forward in the new British manual, UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), and has been expressly deleted in the draft U.S. Department of Defense Law of War Manual, in process.
The official Canadian history reports: “[Royal Air Force] Air Commodore S.O. Bufton, for one... had now been persuaded that it might be useful to mount at least one massive operation (THUNDERCLAP) against the centre of Berlin in the hope of ‘total devastation’ of the German capital and would provide ‘a spectacular and final object lesson to the German people on the consequences of... aggression’ but also offer ‘incontrovertible proof to all people of the power [and] the effectiveness of Anglo-American power.” Greenhous et al, supra n. 58, p. 831.
The Joint Intelligence Committee concluded that devastation of Berlin would not result in breakdown of German will to continue the war. Ultimately THUNDERCLAP re-appeared as a series of combined attacks on cities in eastern Germany, including Berlin, Chemnitz, Leipzig, Dresden and “associated cities where heavy attack will cause great confusion in civilian evacuation from the East and hamper movement of reinforcements from other fronts” as a way for Allied support of the Russian advance into Germany. SAOG III, supra n. 29, pp. 98–109, and Frederick Taylor, Dresden (2004), pp. 180–192.
Letter, General Eaker to Spaatz, 1 January 1945, Box 20 (diary), SP, as cited by Tami Davis Biddle, The Dresden Raid of 1945: Assault, Aftermath and Legacy (unpublished paper, 2005).
Actually bombing Schaffhausen again, as it had been bombed accidentally by U.S. heavy bombers the preceding year. W.F. Craven/J.L. Cate (eds.), The Army Air Forces in World War II, Volume III, Europe — Argument to VE Day (1951), p. 735. See also Charles C. McBride, Mission Failure and Survival (1989), pp. 77–79, 97, 130; and Richard G. Davis, Carl A. Spaatz and the Air War in Europe (1993), pp. 575, 578.
Id., pp. 732–735; see also Mierzewski, supra n. 12, p. 170.
Davis, supra n. 165, p. 572. What is of interest is that attacks on morale always were of lower priority than all other target categories, such as oil, transportation and militaryrelated industry. See, e.g., SAOG III, supra n. 29, p. 98.
Biddle, supra n. 34, p. 277. The discussion in the main text has focused on British and American attacks on morale in the battle for Europe. Similar attacks were proposed or executed by the Luftwaffe. Professor Richard Muller reports: “Other employment of the Luftwaffe’s bomber force produced a steady drain on Luftflotte 6’s capabilities. In a consultation between [Generaloberst Hans] Jeschonnek and [General Robert Ritter von] Greim’s chief of staff, Kless, the two officers discussed a scheme to dispatch “bomber units in formations of 20 to 30 aircraft” in “systematic terror attacks... for the breaking of Russian morale” against Soviet cities behind the front lines. “These actions... were intended to bring about the collapse of Soviet powers of resistance.” Richard Muller, The German Air War in Russia (1992), p. 140. On February 11, 1944, General von Greim put forward his “Proposals for the Commencement of Strategic Air Warfare Against the Soviet War Economy.” Continuing, Muller reports Greim argued: Since Moscow was also a major population center as well as the center of Bolshevik power, Greim suggested that it should be the target of “12 to 15 repeat attacks” by the entire 300-plus aircraft strength of [General Rudilf] Meister’s long-range bomber force. In a formulation strongly reminiscent of Douhet... Greim proposed: “Concentrated attacks upon the military-industrial installations in Moscow may cause, alongside the destruction of industrial targets, heavy damage to the densely-packed adjoining urban areas. The working population which has been up to the present time lulled into a felling of security will suffer heavy casualties, as well as still poorer living and working conditions, and will morally be greatly affected...” Id., pp. 195–196. In a note reminiscent of post-war British and American conclusions, General Karl Koller rejected Greim’s recommendation, noting: “Considering the demonstrated toughness and Spartan nature of the Russian population, we cannot expect permanent and militarily decisive effects from terror attacks against residential quarters. They are, rather, more likely to give the will to resist of the Russian people new sustenance...” Id., p. 196.
In 1992 the U.S. Air Force’s Gulf War Airpower Survey invited Colonel Raymond C. Ruppert, USA, Staff Judge Advocate for US Central Command during Operations DESERT SHIELD AND DESERT STORM, and me to meet with them to discuss the role of lawyers in the target decision-making process, and in particular the attack of the Saddam statue and Crossed Swords Monument. The senior Air Force psychological warfare officer for US Central Command during Operation DESERT STORM was present. He stated he advised against attack of each, not only because he doubted their attack would have the intended effect, but also because the U.S. would suffer a psychological warfare loss were the attacks to miss. Another Air Force participant agreed, stating it was not worth risking the aircraft and aircrew on such speculative and otherwise worthless targets.
Cf. Williamson Murray, Air War in the Persian Gulf (1995), pp. 224–226. Dr. Murray, a military historian normally careful with his facts, was off target in his account of this episode and the role he alleges lawyers played in the decision. A participant in the Air Force’s Gulf War Airpower Survey mentioned in the preceding footnote, Dr. Murray declined to attend the meeting at which Colonel Ruppert and I discussed this and other episodes in explaining the role of lawyers. General Colin Powell’s “My American Jour ney” (1995, p. 496) is closer to the mark, with the exception of two key points. General Powell’s senior attorney, Colonel Fred K. Green, did not meet with General Powell with “a battery of lawyers,” and Colonel Green’s discussion with General Powell weighed legal and policy considerations. The conversation between General Powell and Colonel Green formed the basis for the political leadership’s decision against their attack.
See Frits Kalshoven, Belligerent Reprisals (1971).
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Hays Parks, W. (2007). Asymmetries and the Identification of Legitimate Military Objectives. In: von Heinegg, W.H., Epping, V. (eds) International Humanitarian Law Facing New Challenges. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-49090-6_5
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