Ius in Bello

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IUS IN BELLO

War has been a central feature of civilisation throughout recorded time and it

is therefore hardly surprising that its moral and ethical justifications have such huge

importance. There is absolutely nothing that so needs to be conducted with good

judgement as war and battle.1 Correct conduct in battle and war is a conundrum that

throughout the ages has been translated into legal requirements, historical debate and

most important military action. This question over the necessary limitations and

principles in battle has remained to this very day. The modern result is Ius in Bello,

the correct moral conduct of war that has been cemented into international and

customary law with fundamental questions being asked in regards to military action.

In this dissertation I will attempt to introduce the ethical and moral justifications for

conduct in War, and its attempts to be incorporated into international and

humanitarian law. Finally I will study the Second World War with specific detail on

aerial bombardment.

The ethical question of going to war and whether a war is just has been argued and

studied since the beginning of western and classical philosophy, from Thucydides and

Plato to Aquinas and Kant. Their ethical and philosophical viewpoints of war saw to

the conceptual rise of just war and in what regards is it right to go to war (ad bellum)

and conduct in war(in bellum). This has been contested and revaluated for centuries

with a clear and constant emphasis of justice and the moral right. A state must not

use such treacherous methods as would destroy that confidence which is required for

future establishment of a lasting peace.2 This classical period of philosophers saw an

affirmation of the concept of just war and the right to go to war. Christian and

Western philosophers had clear ideas and a notable basis of philosophical enquiry on

going to war as seen in arguments of Ius ad Bello, however the understanding and

moral implication of conduct in warfare remained more opaque.

1

Pizan, C (ca.1364-ca.1431) War and Chivalry. In: The Ethics of War G.M Reichburg et al. Oxford,Blackwell, 210-2262 Immanuel Kant p.96 Perpetual Peace in The Ethics of War

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The time prior to Ciceros formation of the just war theory saw individual

cultures and faiths appropriating their own understanding of conduct and action

during conflict. Each nation, religion or culture viewed these as principles of war, a

military, moral or legal necessity when facing the enemy. Western and Classical

theorists only began to study conduct in war in the last few centuries. The concept of

correct conduct in fighting had already been well developed by Islamic scholars by

the time of the crusades.3 The Israelites are commanded in the book of Deuteronomy

on the correct actions in laying a siege. when you lay siege to a city for a long time ..

Do not destroy its trees by putting an ax to them. Are the trees of the field people.4

This was further expanded by the Jewish scholar Nachmanides (1194-1270) God

commanded us that when we lay siege to a city that we leave one of the sides without

a siege so as to give them a place to flee to. It is from this commandment that we

learn to deal with compassion even with our enemies.5 Therefore the Hebrews even

in a time of war saw the importance of giving their enemies a form of protection and

humanity in the face of destruction or siege. Thus society deems conduct in warfare as

imperative in regards to peacetime.

We can trace correct conduct even further back with the study of the Hindu epics,

The essence of the Hindu laws of warwas to prohibit inequality in fighting and toprotect those who exhibit helplessness.6 These rules covered a multitude of issues

from treatment of prisoners, cause of unnesceary pain, enemy property and protection

of the weak and helpless. The Hindus like any other religions strongly advocate self

defence, with the warrior kshatriyas class having a key role and position within hindu

society. May your weapons be strong to drive away the attackers, may your arms be

powerful enough to check the foes, let your army be glorious, not the evil-doer. Rig

Veda 1-39:2 The Vedas reinforce this notion of correct conduct in battle and the

proper ways in which a warrior must fight. In the chapter Realia, to Arms of the Rig

Veda we see that a warrior will go to hell if he either, poisons his arrow, attacks the

elderly and attack from behind. the divine arrow is smeared with poison, with a head

of antelope horn and a mouth of iron.7 elephant riders must fight with elephant

3 War, Peace and Religion in the classroom, ISTEP 2009 Just War theory4 Deuteronomy 20:19-205

http://www.jlaw.com/Articles/war3.html6 http://jcsl.oxfordjournals.org/cgi/content/short/8/2/33976-75:15

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riders, as one on foot fight a foot soldier.8 The Hindu laws of war, unlike those

prescribed by Christianity or Islam founded themselves on Dharma and their cosmic

order9.

Most notably Islamic laws on war and peace are the most insightful and relevant in

relation to the fighting and its conduct. The Islamic conduct during warfare is almost

completely similar to that of modern legal standpoints. and if you have to respond to

an attack, respond only to the extent of the levelled against you.10The treatment of

prisoners is also clearly highlighted, therefore when you meet the unbelievers(in

battle) smite at their necks. At length, when you have thoroughly subdued them, bind

a bond firmly thereafter either generosity or ransom.11 The sunnah also reinforces the

ideas of conduct in battle stating that no child, aged or woman should be harmed,

attack on a monastery is prohibited and killing of prisoners is banned. The prophet

Mohammed was seen as a reluctant fighter, well aware of the correct treatment and

the proper function and order of an army.

These principles were reinforced by the first Caliph Abu Bakr in the 7 th Century,

whom laid down rules concerning the conduct of war. Stop, O people, that I may

give you ten rules for your guidance in the battlefield. Do not commit treachery or

deviate from the right path. This was continued through Islamic essays on

International law in the 9th century, a remarkable achievement in itself. These

highlighted the treatment of hostages, refugees, and conduct on the battlefield,

protection of women and children and devastation of enemy territory. This was put

into practice by the Saladin and Sultan Al-Kamil after their conquest of the Frankish

army during the Crusades. whom we drove naked from their homes, revived us with

their own food when we were dying of hunger.12The Christian armies at that time had

little comparable concepts of correct conduct and caused numerous atrocities in the

name of God.

8. I.C Green p.1910Quaran 16:12611

Quran (47:4)12 War, Peace and Religion in the classroom, ISTEP 2009 Just War theory

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The messiahs teachings prophesied a world without violence and the end to all wars.

Enemies should be loved and prayed, not cursed or by implication destroyed.13 The

stance of Christianity could not stand in the face of the Roman army, with constant

reprisals and the lack of the messiahs return. Christianity faced a dilemma in the face

of constant warfare and conflict throughout the globe. The failure of the crusades also

reinforced the need for a universal or justified understanding of warfare and its

conduct after the failure of explicitly religious based beliefs. This trend led to the

formation of ethics based on the theory of Natural Law. Natural Law orIus gentium14

was founded on the universal understanding of the human condition and psyche,

while taking into account the constraints on human life. The need for this type of

doctrine was clearly seen after the savage actions during the conquest of the South

Americas. Francisco Vitora(1486-1546) argued that no war could simply be justified

because ones opponents did not share ones religion, for justice was rooted in a

natural law which was shared by all people.15

The teachings and writings of Marcus Tullius Cicero remain as the pivotal basis for

conduct in war. Cicero saw war from a natural law position as a necessary evil. War

is a political act that in no way was neutral to morality, since war involves existential

evil.16His views on justice and natural law are the basis for his argument, stating that

humanity owes it to itself to conduct war in the best regard. conserving human

society, rendering to each to one that ones due, and being faithful to what is due by

agreement.17. Ciceros claim of mans natural loyalty to the state and justice was a

paradox that conflicted with the natural state of war. Thus he attempted to resolve this

issue. In destroying and plundering it is very important not to be randomly cruel.

Thus, whatever the confusion at the moment, the truly great individual will punish the

guilty.18The works of Hugo Grotius (1583-1645) amalgamated the secularisation of

the just war theory in his book the laws of war and peace. His findings argued that

justice is based on emphasis on defence against threatened or actual attack as the

1314 Law of Nations15 Francisco de Vitoria in The Ethics of War p,28916

Ethics of war, war andf international tradition tradition and today!17 De Officis, 1,1518 De Officiis, 1,82

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just cause for war with the development of the modern state.19The founding ideas

have formed the basis of modern international and humanitarian law.

The ethics of correct conduct and limitations of violence in battle was considerably

slower in its philosophical and legal basis than its counterpart ad bellum with no

clear or succinct avenues of correct conduct. However concepts of proportionality and

necessity emerged. These two principles form part of international law governing

legal conduct within warfare. The next major historical leap for in bello ethics was

the concept of chivalry and the battles of knights and horses. Thus an age of chivalric

dispensation occurred, with correct treatment of prisoners and maintenance of laws

and customs. We must now consider the causes by which, according to lawful means,

they may be initiated and puned.20 In her book on War and Chivalry, Pizan highlights

basic concepts of modern conduct in warfare. These included a maintence of laws

and justice, counteract evil doers who befoul, injure and oppress and recover lands

and lost property.21 This principle of nobility and military ethics has been seen before

in the writings of Sun Tzu. His writings on the Art of war highlight the ethical

practicalities that must be adhered to when conducting a campaign of war. These

ethics are highlighted in his military pragmatism over the treatment of prisoners and

unnecessary destruction of men and property. treat captives well, and take care for

them.22

The basic ethical theme in all Ius in bello elements is that the right to use force is in

war is not unlimited. This highlights and contravenes possible utilitarian views of

necessity in that, if the end is lawful then the necessary means are also lawful.23

Three major ethical principles have emerged from past philosophical enquiry. The

concept of military necessity, in which at what point is an attack or action necessary

to the war, and will unnecessary harm and suffering be inflicted on those who are not

directly involved with the conflict. Second Proportionality, to what degree or extent

will restraint be employed in conflict or attack and finally, distinction. A concept,

which maintains that belligerent military action must distinguish between combatants

19 Hugo Grotius, Theory of the Just War systematized p.40220 Pizan p216 in Ethics of War21

Pizan p218 in Ethics of War22 Sun Tzu, The Art of War p.7623 W.L La Croix p.152

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and non combatants. These principles, now founded in international humanitarian law

were conceived from ancient philosophical enquiry and natural human morality over

the correct conduct needed when waging any war. Machievelli, implies that the

practicalities of war do not allow for inhumane conduct in conflict. you cannot call it

political skill to massacre your subjects, to let down your allies, to be untrustworthy

and ruthless and altogether unscrupulous.24 Machievelli, a political philosopher

known for his harsh conviction of the human psyche sees man as intrincally evil.

However his opposite viewpoint of mankind leads him to similar justifications that

human nature can to some degree be controlled or regulated by laws.25Therefore to

fully understand Ius in Bello a study of the legal implication is necessary.

we are now in a state of necessity, and necessity knows no laws.26M. Walzer here

highlights the moral conundrum that embodies Ius in Bello. The ethical concept of

correct conduct in warfare is clearly seen and has been disputed over for centuries

with different traditions and cultures interpreting their own understanding of conflict.

However with the rise of the nation states and technological and economic advances

the world has become a smaller place, with conflicts involving vast numbers of men,

new weaponary with larger destructive power and higher chances of death to non

combatants. Funnily enough the main concepts within Ius in bello have not changed.

The treatment of civilians, use of certain weaponry and conduct on the battlefield

continue to plague the 21st century. The change can be seen in modern attempts to

codify combat and create an environment that minimises unnecessary death and

destruction. war is an act of force , there is no logical limit to the application of

force.27One legal analyst stated that a nation with an air force should not be allowed

to use their airforce if the other nation did not possess such capabilities. These

arguments underline the extreme possibilities that have occurred in relation to Ius in

Bello.

24 Four seminal thinkers in international theory: Machiavelli, Grotius, Kant, and Mazzini / MartinWight ; edited by Gabriele Wight and Brian Porter ; foreword by Sir Michael Howard ; introduction by

David S. Yost. P.3

25

Machiavelli Discourses, 1492627 On war(1832) eds howard and paret. 1976, bk 1, chp 1. Contemporary Law of Armed Conflict.

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. Limitations and principles in battle and an adherence to rules and regulations when

faced with the possibility of defeat, or worse annihilation are pivotal. The 1977

Geneva Protocols have cemented the most recent of rules of international law

applicable to an armed conflict.28 These cover the legal requirements treatment of

prisoners, the use of certain military force and technology, non combatants and care

for the sick and wounded. However at what point does correct conduct in battle

secede to necessity or worse defeat and how are these reflected in the historical

actualities of war. attached to war are certain self imposed imperceptible limitations

hardly worth mentioning known as international law and custom but they scarely

weaken itkind hearted people might think there was some ingenious way to disarm

or defeat an enemy without too much bloodshed, and might imagine that this was the

true goal of the art of war. Pleasant as it sounds, it is a fallacy that must be exposed;

war is such a dangerous business that the mistakes that come from kindness are the

very worst.29

Historically the formation for a legal code in relation to warfare and its conduct began

with General orders 100. Francis Lieber, an ex-Germanic soldier of the Napoleonic

wars saw to create a comprehensive collection of rules to help maintain the correct

code of conduct in combat. His creation was the Lieber code and was the first military

manual for the United States Army in 1863. This code covered all aspects of fighting

and related to prisoner treatment and treatment of spies. The St Petersburg

declarations(1868) and the Hague Conventions of 1899 and 1907 began to bind

customary law with international law. The inclusion for instance, prohibited the

prolonged unnecessary suffering of combatants banning explosive charges less than

400 grams as a fact of military necessity. ... International law of war is not

formulated simply on the basis of humanitarian feelings. It has as its basis both

considerations of military necessity and effectiveness and humanitarian

considerations, and is formulated on a balance of these two factors30

28 A.Ross, Frontiers of International humanitarian law29

C.V.Clausewitz Ethics and Military Strategy in The Ethics of War p.55530Shimoda Ryuichi Shimoda et al. v. The State Section:Evaluation of the act of bombing

according to international law: point (11):second paragraph

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http://en.wikipedia.org/wiki/Military_necessityhttp://en.wikipedia.org/wiki/Wikisourcehttp://en.wikipedia.org/wiki/Wikisourcehttp://en.wikipedia.org/wiki/Military_necessity


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The laws have been formulated from customary laws enforced by individual state

practice, and fundamental principles have been for the most part adhered too. the

right of belligerents to adopt means of injuring people is not unlimited.31 This is one

of the essential legal premises for Ius in Bello. These have been codified into the form

of international treaties and agreements and have been binding throughout the globe.

The fact remains however that Nations have the right to opt out of certain clauses and

the general participationclause is applicable to only those belligerents whom are

involved. The restricted range of international law is namely the counterpart of the

wide freedom of independent action which States claim in virtue of their

sovereignty.32 The League of Nations and The United Nations through their

endeavours have created laws which have safeguarded and maintained peace

throughout the globe.

A successful example of international treaty law incorporating customary state

principles is the International war crimes tribunals. The period of the Second World

War saw arguments of individual responsibility in the application of war crimes and

the creation of military courts. Many of the accused in the Nuremberg and Tokyo

tribunals claimed immunity through orders from superiors and codes stated within

their army regulations. The Moscow and London declarations saw to it though that

army regulations are not a competent source of international law33 and cant be

merited as a justification for war crimes or crimes against humanity. These tribunals

even though their justification or legal basis is somewhat questionable they have

secured a necessary crux for international human rights. The ethics of war apply even

in the absence of conventions and treaties,34 as there is no agreed international

document governing warfare among the European states. The law of war Ingrid deter

CUP Cambridge 2008

The UK military manual professes that the law of war is founded in the ethics of

military necessity, humanity and chivalry. The law of war lessens the threat of

survival to our civilisation and may ensure the survival of mankind.35 These are

31 A. Roberts et al P.532 D.J Harris law p.433

Documents on the Laws of War34 I.Detter p.16635 B.Rolling Current Problems of Internation law p.155

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reflected in The Hague and Geneva conventions. The Hague laws set to limit the

means and methods of warfare which may legitimately be used in armed conflict

while the Geneva conventions aim to protect the victims of any conflict. These

treaties aim to augment the Ius in Bello principle into modern reality and warfare.

These involve securing of the prisoner of war rights and protection and prohibited use

of certain weaponry. For instance the use of dum-dum bullets is illegal under The

Hague laws as they cause prolonged and unnecessary suffering. These supposed laws

and regulations have become absolute and universal commitments.36

The principle aims of the laws of warfare are to limit the unnecessary suffering of any

combatant involved with the conflict. Past philosophers and historians have attempted

to scribe a clear set of rules and regulations that run tandem with the actions on the

battlefield. Sun Tzu is a perfect example of this thinking. The kings army does not

kill old men and boys; it does not destroy crops.37 This line of thinking has emerged

throughout cultures and religions with Rousseau commenting, la fin de la guerre

etant la destruction de letat ennemi.ils redeviennement simplement hommes et lon

na plus droit sur leur vie.38Here he argues that the life of a hostile must be spared

when he is unarmed. He argues that his thinking is not based on the works of Grotius

but that of reason. Modern Ius in Bello is founded on these arguments and are

reinforced at the St Petersburg declaration. the employment of such arms would be

therefore contrary to the laws of humanity.39

Thus Modern Ius in Bello laws are therefore a culmination of legal analysis, military

pragmatism and sound ethical reasoning. All segments of this body of law are

stimulated by a realistic approach to armed conflict.40 They have been implemented

and argued to lessen the damage and pain inflicted by warfare. if this state of affairs

be prolonged, it will inevitably lead to the very cataclysm which it is desired to avert,

and the impending horrors of which are fearful to every human thought.41However

36 Pichet, developments and principles in International conflict and security law:essays in memory of

hilare Mccoubrey37 Hsun Tzu, Basic writings, trans Burton Watson, Columbia1963, p.67 in International law and armed

conflict by hilaire38 International law and armed conflict by hilaire p.215

39

St Peterburg Declaration, 186840 Y.Dinstein p.1741 James Brown Scott, the reports to the hague conferences of 1899 and 1907 in International law and

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the principles of legal thought are a product of history and to some extent artificial

and fortuitous.42This can be seen with the horrific events that occurred in the Second

World War, from the sadistic treatment of POWs in the pacific conflict by the

Japanese, the slaying of non combatants in Poland by the Germans and the allied

bombing of germany. Ciceros maxim makes use of the perilous nature of law within

warfare, inter arma silent leges.43

The arguments

laws of war is something of a paradox lacking any real substance.44 However the

sheer number of international legal norms governing the conduct of hostilities is

phenomenal. The considerations and complexities are all too apparent in regard to

international law and ius in bello. if international law is, in some ways, at the

vanishing point of law, the law of war is, perhaps more conspicuously, at the

vanishing point of international law.45 the laws of war are clearly an important and

necessary advocate of international humanitarian rights and prevention of suffering

but many highlight that this is an impractical view having to take into account the

natural and violent state that is war. International law has no alternative but to

accept war.46 Thus international law has so far failed in the primary task of all legal

systems of establishing and maintaining a distinction between the use of legal and

illegal force, this can be seen with no clear universal treaty banning certain methods

or conduct, just conventions that can be circumvented to fit a particular situation. UN

AND ILLEGAL WARFARE (CASE REQUIRED) This apparent failure aside, the

importance of having such legal basis is extremely imperative. The last hundred years

have seen massive changes in the warfare, both technological and ethical, resulting in

new types of weaponry and warfare. Clearly the law may influence decisions in

subtle but important ways47. This is fervently supported by Gen. C. Powell.

Chairman, Joint Chiefs of Staff. decisions were impacted by legal considerations at

4243 In war, law is silent Roberts et al. p.1444 (P.3 W this is supported by I.C Green45

4647

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every level. The law of war proved invaluable in the decision making process.48UN

and International law of war.

The principle of Military necessity is one of the three core justifications for Ius in

Bello. The practical application of this legal and ethical concept alters greatly in the

eyes of the belligerents concerned. the elestacity of the term military necessity

under the laws of war has enabled belliegerents to legally justify virtually any

conduct otherwise available to the proponents of kreigsraison.49 This doctrine gives

argument to the idea that any means can be employed or used in the theatre of combat

to justify their success and more importantly anything that will limit their own

destruction or loss. This completely contravenes the core principles laid out in the

lieber code and modern international humanitarian law that has followed since. Lieber

argues that even minor limitations on belligerent warfare are worth pursuing and

defines military necessity as, those measures which are indispensable for securing

the ends of the war and which are lawful according to the modern laws and usages of

war.50 Lieber code Art.14. The legality often hazes when placed in the reality of

combat. this can be viewed in the case of protocol 1 and special forces. The laws of

war prohibits the executions of prisoners of war whose danger or lives would hamper

the operations of special forces.

The references to military necessity which are found in the hague regulations offer

no soothing syrup to civiliansas they prohibit destruction of enemy property unless

demanded by military necessity. This highlights a major legal and practical loophole

when actually placed in a military situation. Military necessity is seen to possess four

key elements.

1. force is regulated

2. that the force used is necessary to achieve as quickly the partial or

complete submission of the enemy51

48 I.C.Green p.???49 C.johnick and r.normand. the legitimation of violence :a critical history of the laws of war, Harvard

internatational law journal in Law on the battlefield A.P V rogers5051

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3. that the force used is no greater than needed to achieve this goal

4. the force used is not otherwise prohibited (i.e Chemicals or Nuclear

weapons)

in every case destruction must be imperatively demanded by the necessities of war

and must not be the outcome of a spirit of plunder or revenge.52 Oppenheim

International. This is further compounded in legal standings that no action may be

taken which is not a military necessity; exceptions are sometimes allowed for sound

military purposes and most importantly the rule of proportionality. This is the idea of

military success contra humanitarian protection a principle that forbids destructive

acts unnecessary to secure a military advantage.53 M.N.Schmitt, Book review: Law

on the battlefield US Air Force, 8 (1998) Journal of legal studies at pp.256-8

The rule of proportionality is the balance act conflicting between military action and

years especially since the Second World War with humanitarian considerations at the

forefront of the ethical and political spectrum. An example of this is an air assault on

a hydroelectric dam during the Vietnam War in 1972 by the United States. The plant

at Lang chi supplied 75% of electricity and resources to the defence and industrial

output of the area and could be argued as a key military target. However the use of

bombing could result in high and excessive numbers of civilian casualties due to the

plants location in the middle of a city. Ultimately the Americans used laser-guided

bombs, with the assurance of a 90% chance of destroying the plant and minimising

civilian casualties. Although the basic amenities were disrupted for the local

population, the use of laser guided bombs and the considerations of civilian casualties

is an example of the successful use of the rule of proportionality.

A further example is seen in the capture of the Philippine capital, Manilla in 1945.

The result of the battle was over 100,000 civilian deaths and loss of 10,000 US

soldiers. This horrific loss of life can be viewed as a necessity and complete failure of

the rule of proportionality. Fenwick described the aftermath, no one wanted these

people to die or derived any military benefit from their death, it just happened.54the

US department of Defence summarises, it prohibits the military action in which the

52

5354 Fenwick, Proportionality p.42

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negative effects clearly outweigh the military gain.55 The International Red Cross

finds contention with this view that military gain can never outweigh and justify the

extensive or excessive loss of civilian life. The protocol56 does not provide

justification for attacks which cause extensive civilian loss or damage.57 The

practical application of this rule is ultimately the decision of the commander on the

ground and his judgement and actions will define whether the rule applied has been

infringed or adhered to. The technical limits at which the necessities of war ought to

yield to the requirements of humanity.58

The concept of distinction is the final piece of Ius in Bello. This is the argument that

belligerent military action must be aimed at the enemy forces and not the civilian

population in the combat zone. Clear principles in the Laws of international armed

conflict are beyond dispute, however as one descends from fundamentals to

specifics, consensus shrinks.59 These laws have enshrined clear directives that no

modern army can flout or ignore. Thus the concept of indiscriminate attacks against

non combatants raises core ethical and legal ramifications. The argument of aerial

bombardment is reference to the British and allied air attacks on German cities are of

notable worth when studying this legal and ethical quagmire. The laws on

Bombardment and especially area bombardment seem to defy customary law for

distinction. In 1919 the committee of Imperial defence declared that it should be

illegal for a belligerent to bomb civilian populations without clear military objectives

or targets. The state practice of allies in World War 2 clearly undermines these views,

however these ideas were never consecrated into treaty law and therefore legal

condemnation cant be fully pursued.

Hans Blix in his study on air bombardment saw to three certainties that must be

adhered to when pursuing a bombing campaign and the following are termed as

indiscriminate actions by treaty law.

1. attacks which are not directed at a specific military objective.

55 Dept of Defence p.61156 The International Committee of the Red Cross set forth a passage of clear rules and protocol

pertaining to the conduct within warfare. See the Geneva conventions of 1977 and 198757

5859 Y.Dinstein, The conduct of hostilities under the law of international armed conflict, CUP 2004

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2. use of weaponry that can not be deployed at a specific target area

3. attacks that cannot be limited in their destructive power.60

These infringements of these protocols contravene Ius in Bello and are both morally

and legally corrupt.

The study of the Allied Bombing offensive of Germany in the Second World War is

the culmination of my analysis of Ius in Bello. The strategic offensive employed holds

moral and legal contention with the British justification for the policy and ultimately

the horrific loss of civilian life. The concept of mass bombing was born during the

Italian conflict in libya in 1911, with aircraft being involved in reconnaissance,

transport and bombing. The first major theorist on aerial bombing was an Italian

General, Guilio Douhet, who studied the concept of strategic bombing as a new form

of warfare, producing a renowned publication, the command of the air. His argument

saw that aerial warfare was the best form of offense, using total war61 as his

justification. He argued that bombing of any belligerents would result in the defeat of

the enemy and ultimately the crushing of the will of the people. His theories and ideas

were supported by Sir Hugo Trenchard, known as the father of the Royal Air Force.

Trenchard expanded these early views of aerial bombing but thought that targeting

civilian infrastructure was the key element to destroying the enemys wartime

capability.

The issue of understanding the actions and bombing campaign over Germany in the

Second World War are fraught with moral conundrums over the legality of the actions

of the Royal Air Force. The whole development and direction of strategic bombing

was a highly and continuously controversial matter. which embraced questions of

strategic desirability, operational possibility, economic, industrial and moral

vulnerability and legal and moral responsibility.62 The Pre war RAF was geared to

terror bombing. In 1938 Air Staff distinguished two forms of bombing against a target

group. The use of targets of numeracy within a given area would allow for panic to

ensue crushing industrial production. The RAFs belief in attacking industrial areas

60 Hans Blix, Area Bombardment: rules and regulations, British yearbook of international and

comparative law, 1978 at p.486162 Max Hastings Bomber Command

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stemmed not from realistic analysis of the prospects of smashing enough industrial

plants....but to break the will of the workers.63 The RAFs policy therefore already

subverted 1919 treaty law to prevent the bombing of civilians. This notion of civilian

protection was reinforced by Chamberlain in 1938 with the RAF under strict order not

to bomb civilians His Majestys Government will never resort to the deliberate

attack on women and children and other civilians for the purpose of mere

terrorism.64Sadly the realities of war, especially when concerned with a new form of

warfare, issues of morality and legality are bound to arise.

The bombing campaign espoused by the British can be seen to have stemmed from

mishap and escalation. The accidental bombing of Rotterdam by German forces on

the 10th May 1940 sent shockwaves around the British Isles. The destructive power of

aerial bombardment had already been seen against Guernica; however the locality of

the Netherlands to Britain caused widespread disbelief among the population. The

fear of aerial bombardment was supported by theorists that by destroying the morale

of the civilian population as a wholewould result in the collapse of the enemy state.

The continuous retaliatory raids against British and German cities were caused by

navigational errors and bad luck. Thus the result was the start of the London Blitz and

the British bombing campaign over Germany. The initial bombing campaigns were

fraught with failure. The bombers available were incapable of hitting their targets,

resulting in horrendous losses of aircraft and men, not helped by bad weather and

ineffective equipment. Therefore the RAF undertook a new policy of Area

Bombardment in 1942.

This policy was a carry on from the orders of Sir Charles Portal, however under the

new leadership of Bomber Harris65 in 1942 the RAF actively pursued a campaign of

civilian targeting. This was believed to eradicate the enemy industrial capability by

means of destroying its civilian population and infrastructure. The use of night flying

was employed to increase the probability of bombers reaching their targets and the

invention of Gee66 and radar helped minimalise navigational errors. The problem

6364

6566

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arises that area bombing can be seen to have had no military value and been

completely out of proportion. The concept of Area Bombing or carpet bombing was

supported by Lord Cherwell, whom submitted the dehousing bill. This bill thought

that effective and intensive bombing of German centres of population could end the

war with swift judgement. The realities of this action were devastating for the German

people. Harris, in order to garner further support for Bomber Command ordered 1,000

bomber flights. These flights led to untold devastation and death. The most notable of

which was operation Gommorah, the bombing offensive of hamburg.

The first night saw over 2,396 tonnes of explosives fall on Hamburg, the result of

select explosives being used saw to a great firestorm erupting throughout the city. One

night of bombing on the 27/28 July in 1943 left 35,000 civilians dead and over

150,000 homeless. Harris wrote in defence of his policies after the war, quoting that

bombing was relatively humaneas a weapon of war. This can be paralleled with one

civilians account in Hamburg when describing the firestorms as Resounding like

mighty organs67 and adult corpses had shrunk to the size of infants. The military

reasoning was that the untold suffering would impact and ultimately crush the

Germans however scientific studies had shown from the Coventry bombings that the

relative impact on industrial output and civilian morale of aerial bombing was hardly

worth the wasted manpower and machinery. The idea of bombing a well defended

area into submission or seriously affecting his morale or even doing substantial

damage to him is an illusion. This is reflected in the recovery time of the German war

machine and the growth of their industry during the campaign of Area Bombing.

Area Bombing was a response to the need to strike back at Germany, the Air chiefs

were fully behind the concept of Area Bombing with Harris claiming that the war

could be won solely by aerial bombardment. Churchill noted the campaign as a

necessary evil and that it was very disputable whether bombing by itself will be a

decisive factorall that we have learnt show that its effects, both physical and moral

are greatly exaggerated.68 The study of the conflict shows that ethical and legal

infringements were made by the British during this campaign. We are in no position

to argue or undermine the cause or the justification for going to war and this is by no

6768

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means a critique or slander of those who died fighting. However the conduct of

knowingly bombing civilians is both morally and legally repugnant. One American

Air Force attach stated, the British public have an erroneous belief which has been

fostered by effective RAF publicity that the German war machine can be destroyed

and defeated by intensive bombing.69

Military necessity supported at the time the need to strike back at the German

infrastructure, and Bomber Command was the only form of offence available.

However with the advent of Radar, new improved navigation techniques and fighter

escorts into the heart of Germany, the killing of civilians became indiscriminate and

unlawful. The American Air Force did not choose to carpet bomb as the British,

instead choosing key oil supplies and using precision guided techniques to deliver

their payloads at important military targets. This is reflected by Roosevelt. European

nations would not permit bombardment from the air on civilian populations or

unfortified cities. This seems a little two faced considering the use of the Atom bomb

on Japan. The justifications given by the Americans were that invasion of Japan

would lead to untold American losses and that the cities of Nagasaki and Hirosima

were so industrialised that the imprint of the population was for war industry. This

was the justification used by British Air chiefs for their policy of Area Bombing.

The defence of Area Bombing is shown by Harris in this matter of the use of aircraft

in war there is, it so happens, no international law at all.70However we must return

to our ethical beginnings of Ius in Bello, asking whether the action taken is necessary

or proportionate? Grotius questions how far the power of lawfully destroying an

enemy, and all that belongs to him extends.71He furthers this with, No one can be

killed by design except by way of legal punishment, or to defend our lives and

preserve our property.72The laws of war by the time of the Second World War had

clearly defined rules and regulations of civilians in combat and the non combatant

status. The conduct of some legitimate war operations precluded the separation of

civilians from their countrys posture of belligerence.73 The campaign of Area

697071

7273

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Bombing filled none of the criteria for correct conduct in warfare, being wholly

disproportionate, actively targeting innocents and children and being militarily

unnecessary. However as SOMEONE stated, the essence of war is violence,

moderation in war is imbecility74

CONCLUSION!!!!

Further undermining or ethical illegality of Area bombing

No campaign medal

Critics.

CONCLUSION!

The problem of the allied bombing offensive occurred from escalation. The period of

1942 saw Britain alone in conflict against Nazi Germany with no form of offensive

capabilities except Bomber Command. The

Four seminal thinkers in international theory [electronic resource] : Machiavelli,Grotius, Kant, and Mazzini / Martin Wight ; edited by Gabriele Wight and Brian

Porter ; foreword by Sir Michael Howard ; introduction by David S. Yost.

74

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Geneva conventions

Examples and quotes that follow.

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.75 Gen. C. Powell. Chairman, Joint Chiefs of Staff.

Military Neccesity- new notes in books reinforce. Problems/arguments/critics. Last

1000 words on Area Bombardment. Try and secure Books among dead cities, and

Parks air warfare,

Proiportionality

Discrimination

Bombing offensive

Possible! Auchwitz! Massive examples. Hitler military justification. Japanese

treatment of prisoners.

Bibliography

75 I.C.Green p.???

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Ius in Bello

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Transcript of Ius in Bello