All armed conflicts are covered by the basic rules and principles of the laws of war, wherever the theatre of operations might be, land, sea or air. Although some treaty and customary law specifically refers to certain aspects of aerial warfare, no specific regulation of modern air warfare has yet been adopted. Nevertheless, it is clear that the general principles and rules of international humanitarian law apply. We have created a bibliographic overview on this topic intended as a starting point for your research.
All armed conflicts are covered by the basic rules and principles of the laws of war, wherever the theatre of operations might be, land, sea or air. Some treaty and customary law specifically refers to certain aspects of aerial warfare. Compared with naval warfare, aerial warfare is relatively modern. Balloons existed before aircraft and their use in war was regulated in 1899, but aircraft as such were not in use in warfare until the outbreak of World War I.
International law relating to aerial bombardment before and during World War II rests on the treaties of 1864, 1899, and 1907, which constituted the definition of most of the laws of war at that time - which, despite repeated diplomatic attempts, was not updated in the immediate run up to World War II.
The Hague Conventions of 1907
The most relevant of these treaties are the Hague Conventions of 1907 which specify the laws of war regarding the use of bombardment. There are two conventions which have a direct bearing on this issue of bombardment: Laws and Customs of War on Land (Hague IV) and Bombardment by Naval Forces in Time of War (Hague IX), both October 18, 1907. Although both conventions prohibited the bombardment of undefended places, there was no international prohibition against indiscriminate bombardment of non-combatants in defended places, a shortcoming in the rules that was greatly exacerbated by aerial bombardment.
A few years after World War I, a draft convention was proposed in 1923: The Hague Rules of Air Warfare. There are a number of articles which would have directly affected how nations used aerial bombardment and defended against it. The law was, however, never adopted in legally binding form as it was criticized by all major powers as being unrealistic.
International Law since 1945
With the rise of aerial warfare, non-combatants became extremely vulnerable and were inevitably collateral targets in such warfare potentially on a much larger scale than previously. The bombing campaigns of World War II on cities like Chongqing, Warsaw, Rotterdam, London, Coventry, Hamburg, Dresden, Tokyo, Hiroshima, and Nagasaki claimed many civilian lives and contributed to the demands for regulation that led to the Fourth Geneva Convention and the subsequent Additional Protocols. Although the Convention attempted to erect some legal defenses for civilians in time of war, the bulk of the Fourth Convention is devoted to explicating civilian rights in occupied territories, and no explicit attention is paid to the problems of bombardment.
Although States have not yet adopted a specific regulation of modern air warfare, it is clear that the general principles and rules of international humanitarian law apply. Aeriel bombardments, for example, must be conducted according to international humanitarian law principles and distinguish between military targets and civilians and must be proportionate. Other international conventions, such as those banning the use chemical and bacteriological weapons, are directly pertinent to aerial warfare. Morever, aerial operations are under the obligation not to cause unnecessary environmental damage to land or sea or to gratuitously deprive civilian populations of their means of survival. Cultural objects are also protected by international law from aerial attack.
Dresden 1945: An Allied War Crime?
Between 13 February and 15 February 1945, British and American bombers laid the historical center of Dresden in the ashes. In four raids, the bombers dropped as much as 3,900 tons of high-explosive bombs and incendiary devices. A devastating firestorm followed, destroying almost 39 square kilometres of the city. In comparison with other German cities, the bombing raids over Dresden were not the most severe of World War II. However, they continue to be recognised as one of the worst examples of civilian suffering caused by strategic bombing. Post-war debates concentrate on the question as to whether or not the bombing was justified, and whether its outcome constituted a war crime. Read more
- Garrett, S.A., “Airpower and Non-Combatant Immunity: the Road to Dresden”, in: Civilian Immunity in War, Oxford, Oxford University Press, 2007, pp. 161-181.
- Grosscup, B., Strategic Terror: the Politics and Ethics of Aerial Bombardment, New York, Zed Books, 2006.
- Langenbacher, E., "The Allies in World War II: the Anglo-American Bombardment of German Cities”, in: Genocide, War Crimes and the West: History and Complicity, London, Zed Books, 2004, pp. 116-133.
- Süß, D., Tod aus der Luft: Kriegsgesellschaft und Luftkrieg in Deutschland und England, München, Siedler, 2011.
- Ueberschar, G.R., “Dresden 1945: Symbol für Luftkriegsverbrechen”, in: Kriegsverbrechen im 20. Jahrhundert, Darmstadt, Wissenschaftliche Buchgesellschaft, 2001, pp. 382-396.
One of the most fearsome ideas to emerge in the course of the twentieth century was the idea of total war - the belief that the most effective way of winning wars was by the obliteration, or the threat of obliteration, of the civilian population of the enemy's towns and cities by means of an annihilating attack from the air. The first, and still in some ways the most striking, demonstration that this could be done came in April 1937 during the Spanish Civil War, when the ancient Basque town of Guernica was almost completely destroyed by the blast and incendiary bombs of the German Condor Legion. Since then, civilians have more and more frequently been made the target of wartime bombing, as death, destruction and demoralisation have grown increasingly intertwined in the search for rapid victory. Guernica quickly became a world-renowned symbol of civilian suffering resulting from conflict and inspired Pablo Picasso to adapt one of his existing commissions into Guernica (picture).
- Fontes de Garnica, I., 1937: el crimen fue en Guernica - Analisis de una mentira, Madrid, Ediciones Akal, 2014.
- Irujo, X., Gernika: 26 de abril de 1937, Barcelona, Critica, 2017.
- Patterson, I., Guernica and Total War, Cambridge, Harvard University Press, 2007.
- Southworth, H.R., Guernica! Guernica!: A Study of Journalism, Diplomacy, Propaganda and History, Berkeley, University of California Press, 1977.
- Steer, G.L., The Tree of Gernika: A Field Study of Modern War, London, Hodder and Stoughton Ltd., 1938.
The Destruction of the Cathedral of Reims, 1914
On 20 September 1914, German shellfire burned, damaged and destroyed important parts of the magnificent Cathedral of Reims. The destruction of the Cathedral was generally regarded as an act of sheer vandalism. At the time, it was generally admitted by writers on international law that if the military commander of a besieged place used a church or other building whose immunity had been established, as a stronghold, a storehouse, or an observatory, the besieger might bombard the site without being held responsible for damages caused in consequence of their proximity to other buildings which are liable to bombardment. Even the French war manual itself admitted this. Read more