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Posts published in “International Humanitarian Law”

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

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

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

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

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

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

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