International Law on Air Warfare
By Mian Muhibullah Kakakhel
Senior Advocate, Supreme court of Pakistan
The Merciless Aerial bombardment of suspected Al-Qaida targets by the US in Afghanistan and now in Pakistan violating the sovereign rights of UN member states killing thousands of innocent civilians including women and children cannot but be termed as crime against humanity especially in the context of US atrocities in Iraq and its threat to impose war on Iran directly or through Israel. The confinement of suspected prisoners in Guantanamo Bay Prison and the immoralities committed by US forces in Iraq after its takeover in the guise of liberation of Iraqi people cannot be overlooked lightly. War against terror remains a war attracting the provisions of the law relating to international warfare.
A JURY IN London had for the first time unveiled, admitted and corroborated the fact-um of the commission of war crimes at the hands of US led allied forces during their military operations in Gulf. It was in the context of killing of nine British Soldiers at the hands of two US pilots that the world at large had a clue to the US atrocities in Gulf War purportedly launched for the liberation of Kuwait.
The US Pilots were held to be guilty of violation of the law and rules by the British Court for manslaughter. US Defense Secretary Mr. Dick Cheney over ruled the possibility of extradition of those pilots to Britain to face their trial, probably, on the ground that Britain had no territorial jurisdiction to try those offenders. US legal experts were also of the view that the military personnel could be tried by a civil court in Britain.
Without or before going through the question of jurisdiction of a court or tribunal to try the offenders for an offence against humanity, it will be worthwhile to go through the international law on aerial warfare with a special reference to the US aerial attacks on Pakistan,Afghanistan and elsewhere.
The Law governing the states busy in actual aerial Warfare or exercise thereof is essentially an integral and the most important part of International Law based on ancient War customs and traditions, treaties between the states, a sense of mutual sufferings, International conventions, multinational conferences and the laws of the belligerent states. The law of nature governing the mankind could also be traced out behind all the law that is man made. The U.N charter and its rules governing the subject matter has not left any thing to be misunderstood by any mighty state.
To gain Air superiority over the opponent is the most aspired national interest of a country. The end being always the decisive factor in deciding the use of means, indiscriminate hostile Air activities are carried out by the Air Force to make the enemy succumb to the War injuries both to men and the military hardware. Damage to civil population and private property is also the subject of hostile Air operations to lower the operational morale of not only the fighting forces but also that of the nation.
The use of Aircrafts for military operations in the First World War ushered in an altogether new era of military mechanism. Although all the nations accelerated to excel in excellence in Aircraft building they were not unmindful of the fact that there need be some rules to rule the potential battles they were preparing to fight in the Air. In this connection an International conference was held in Washington in 1922 which was attended by others, the US, Japan, Great Britain, Italy and France. These nations agreed to make the law already existing, more effective. They, burdened with the sense of insecurity formulated certain rules for immediate implementation besides appointing a commission to prepare a code of the law of Air Warfare. In 1923 the Commission submitted its report known as the Code of the Air Warfare Rules. This code could be called a step further to the Hague Air Warfare rules and the Brussels Conference.
According to the International law now in field on the subject the following rules govern tactical Air operations or Air War between the states.
- Indiscriminate bombardment on the enemy territory is forbidden. Only the military installations and enemy troops can be attacked and hit.
- According to the Geneva protocol of 1925 no poisonous gas can be used during aerial Warfare.
- Buildings used for religious, scientific and educational purposes can not be attacked.
- Bombs containing incendiaries for damage on massive scale can in no way be justified.
- The cluster bombs can only be used on the runways.
- The use of biological and chemical weapons to kill discreetly on a large scale is not allowed under the law.
- The league of the nations disarmament conference of 1932 totally prohibited the use of weapons from the Air against civilians and their property.
The civillian Aircrafts of the enemy can not be fired upon in their own territories, however they can be shot down if they enter the frontiers of the country they are at War with and refuse to make landing. The private Aircrafts have also been prohibited from carrying arms on board during flight.
- Bombardment to frighten the civillian population or for realization of money is prohibited according to law.
- Hospitals including the military hospitals can not be bombard.
- Rules of the land Warfare are also to be observed.
- The damage caused to the enemy should not be excessive but should be limited to the barest minimum.
- No bombardment to punish a country or to exhibit Air might is allowed.
- The International Law relating to the prisoners of War is also to be followed during Air Warfare.
- If there arises a need to attack an area of military importance inhibited by civillians a warning to the locals for vacating it must be given before bombardment or missile attack.
- No enemy ship or boat can be sunk or blown away before giving a chance to the crew to vacate it.
- The destruction of enemy Aircraft in the Air is allowed. However, an opportunity to surrender should be given.
- The mobile observer units of the Air Force should be given a chance to surrender before their total elimination at the hands of enemy.
Apart from International Law the general or the state law and morality demands a just and human treatment to the enemy and the prisoners of War. A Pilot dropping by Parachute can not be shot or killed in the Air or on the ground. No body can be deprived of his life save in accordance with law is the law of all the civilized nations of the World.
Unfortunately like many other laws the law relating to the aerial Warfare has also been flagrantly violated by the mightier states. The allied forces operating against Iraq, had littler regard for the law they had themselves laid.
In the Second World War United States Air Force on false and whimsical pretext dropped Atomic Bombs on Nagasaki and Hiroshima causing excessive sufferings and the death of millions of people. The German bombers very atrociously bombard civilians and their property resulting in incalculable loss to humanity. Great Britain also did not lag behind in inflicting cruelties on the mankind. Prisoners of War were done to death on their arrest. Millions of civilians died in horror chambers. Un-armed civilians were but to face death on sight.
The dropping of Atomic bombs on Japan can in no way be justified and defended against any exception to the law of Air Warfare.
In my view the firing of the modern sophisticated missiles from the ground in to the enemy territory to hit military targets is also covered by the law of aerial Warfare as they travel through the Air on to their targets. The firing of these missiles for causing damage to civillians can also not but be a violation of International Law. The use of projectiles carrying nuclear devices or chemical Warheads is prohibited. The use of nuclear bomb even against military targets is a crime under the International Law of War.
The most important aspect of the law of war is that no nation can be deprived of its sovereignty even if its armed forces are defeated. It is also an offence to issue a threat to the head of a belligerent state to be prosecuted on arrest.
The law is clear on the point. War criminals of the Air Forces were charged and put to trial in Nuremberg & Tokyo wherein International jurisdiction or place of occurrence was not considered to be an impediment in inflicting penalties on the wrong doers. U.N. Security Council Resolution No.731 and 748 passed against Libya is a part of international law and is a precedent which if applied and observed with consistency may be helpful in answering the question of extradition and territorial jurisdiction.