International Law - Bombing of Civilians (original) (raw)

Dannen.com > Atomic Bomb: Decision > International Law - Bombing of Civilians

These selections are not intended to be comprehensive. Instead, they are intended to illustrate the general principles involved, especially in relation to the bombing of Hiroshima and Nagasaki.

The full texts of many of these treaties, and others, are available on the Avalon Project at Yale Law School page The Laws of War, and the Tufts University Rules of Warfare, Arms Control page (archived copy).

This page is often viewed from conflict zones around the world. If you need to report attacks on civilians, or other war crimes, please contact international news organizations.

Updated October 2, 2017 to include the new Treaty on the Prohibition of Nuclear Weapons.

Laws and Customs of War on Land (Hague II) July 29, 1899

Laws and Customs of War on Land (Hague IV) October 18, 1907

Draft Rules of Aerial Warfare, The Hague, February 1923

Protection of Civilian Populations Against Bombing from the Air in Case of War, League of Nations, September 30, 1938

Appeal of President Franklin D. Roosevelt, September 1, 1939

Nuremberg Principles, August 8, 1945

Geneva Convention IV, August 12, 1949

Resolution on Nuclear Weapons, United Nations, November 24, 1961

Resolution on Human Rights, United Nations, December 19, 1968

On the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, July 8, 1996

Treaty on the Prohibition of Nuclear Weapons, United Nations, July 7, 2017

Sources and further reading

Laws and Customs of War on Land (Hague, II), July 29, 1899

CONVENTION WITH RESPECT TO THE LAWS AND CUSTOMS OF WAR ON LAND The Hague, July 29, 1899

[Ratified by the U.S. Senate on March 14, 1902]

[excerpts]

ARTICLE XXII

The right of belligerents to adopt means of injuring the enemy is not unlimited.

ARTICLE XXIII

Besides the prohibitions provided by special Conventions, it is especially prohibited:

a. To employ poison or poisoned arms;

b. To kill or wound treacherously individuals belonging to the hostile nation or army;

c. To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion;

d. To employ arms, projectiles, or material of a nature to cause superfluous injury;

f. ...

ARTICLE XXV

The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.

ARTICLE XXVI

The Commander of an attacking force, before commencing a bombardment, except in case of an assault, should do all he can to warn the authorities.

ARTICLE XXVII

In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.

The besieged should indicate these buildings or places by some particular and visible signs, which should previously be notified to the assailants.

Laws and Customs of War on Land (Hague, IV), October 18, 1907

CONVENTION RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND The Hague, October 18, 1907

[Ratified by the U.S. Senate on March 10, 1908]

[excerpts]

ARTICLE XXII

The right of belligerents to adopt means of injuring the enemy is not unlimited.

ARTICLE XXIII

In addition to the prohibitions provided by special Conventions, it is especially forbidden:

(a) To employ poison or poisoned weapons;

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion;

(d) To declare that no quarter will be given;

(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;

(f) ...

ARTICLE XXV

The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.

ARTICLE XXVI

The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.

ARTICLE XXVII

In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided that they are not being used at the time for military purposes.

It is the duty of the besieged to indicated the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

Draft Rules of Aerial Warfare, The Hague, February 1923

RULES OF AERIAL WARFARE The Hague, February 1923

[Although drafted as the basis for an international treaty, the enactment of which was supported by the United States, these rules were never formally adopted]

[excerpts]

ARTICLE XXII

Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited.

ARTICLE XXIII

Aerial bombardment for the purpose of enforcing compliance with requisitions in kind or payment of contributions in money is prohibited.

ARTICLE XXIV

(1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.

(2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies; lines of communication or transportation used for military purposes.

(3) The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph 2 are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.

(4) In the immediate neighborhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus posed to the civilian population.

(5) A belligerent state is liable to pay compensation for injuries to person or to property caused by violation by any of its officers or forces of the provisions of this article.

ARTICLE XXV

In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to public worship, art, science, or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects, or places are not at the time used for military purposes. Such buildings, objects, and places must by day be indicated by marks visible to aircraft. The use of marks to indicate other buildings, objects, or places than those specified above is to be deemed an act of perfidy. The marks used as aforesaid shall be in the case of buildings protected under the Geneva Convention the red cross on a white background, and in the case of other protected buildings a large rectangular panel divided diagonally into two pointed triangular portions, one black and the other white.

A belligerent who desires to secure by night the protection for the hospitals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible.

Protection of Civilian Populations Against Bombing From the Air in Case of War, League of Nations, September 30, 1938

PROTECTION OF CIVILIAN POPULATIONS AGAINST BOMBING FROM THE AIR IN CASE OF WAR Unanimous resolution of the League of Nations Assembly, September 30, 1938.

The Assembly,

Considering that on numerous occasions public opinion has expressed through the most authoritative channels its horror of the bombing of civilian populations;

Considering that this practice, for which there is no military necessity and which, as experience shows, only causes needless suffering, is condemned under the recognised principles of international law;

Considering further that, though this principle ought to be respected by all States and does not require further reaffirmation, it urgently needs to be made the subject of regulations specially adapted to air warfare and taking account of the lessons of experience;

Considering that the solution of this problem, which is of concern to all States, whether Members of the League of Nations or not, calls for technical investigation and thorough consideration;

Considering that the Bureau of the Conference for the Reduction and Limitation of Armaments is to meet in the near future and that it is for the Bureau to consider practical means of undertaking the necessary work under conditions most likely to lead to as general an agreement as possible:

I. Recognizes the following principles as a necessary basis for any subsequent regulations:

The intentional bombing of civilian populations is illegal;

Objectives aimed at from the air must be legitimate military objectives and must be identifiable;

Any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence;

II. Also takes the opportunity to reaffirm that the use of chemical or bacterial methods in the conduct of war is contrary to international law, as recalled more particularly in the resolution of the General Commission of the Conference for the Reduction and Limitation of Armaments of July 23rd 1932, and the resolution of the Council of May 14th, 1938.

Appeal of President Franklin D. Roosevelt on Aerial Bombardment of Civilian Populations, September 1, 1939

The President of the United States to the Governments of France, Germany, Italy, Poland and His Britannic Majesty, September 1, 1939

The ruthless bombing from the air of civilians in unfortified centers of population during the course of the hostilities which have raged in various quarters of the earth during the past few years, which has resulted in the maiming and in the death of thousands of defenseless men, women, and children, has sickened the hearts of every civilized man and woman, and has profoundly shocked the conscience of humanity.

If resort is had to this form of inhuman barbarism during the period of the tragic conflagration with which the world is now confronted, hundreds of thousands of innocent human beings who have no responsibility for, and who are not even remotely participating in, the hostilities which have now broken out, will lose their lives. I am therefore addressing this urgent appeal to every government which may be engaged in hostilities publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities, upon the understanding that these same rules of warfare will be scrupulously observed by all of their opponents. I request an immediate reply.

FRANKLIN D. ROOSEVELT

Nuremberg Principles, August 8, 1945

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL AUGUST 8, 1945

[Signatories: USA, USSR, Britain, France]

[excerpts]

ARTICLE VI

[excerpt]

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations, before or during the war; or prosecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

ARTICLE VII

The official position of defendants, whether as Heads of States or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

ARTICLE VIII

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Geneva Convention IV, August 12, 1949

CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR Geneva, August 12, 1949

[excerpts]

PART II. GENERAL PROTECTION OF POPULATIONS AGAINST CERTAIN CONSEQUENCES OF WAR

ARTICLE XIII

The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war...

ARTICLE XVI

The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect...

ARTICLE XVIII

Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict...

Resolution on Nuclear Weapons, United Nations, November 24, 1961

RESOLUTION ON NUCLEAR WEAPONS United Nations, November 24, 1961 General Assembly Resolution 1653

THE GENERAL ASSEMBLY,

Mindful of its responsibility under the Charter of the United Nations in the maintenance of international peace and security, as well as in the consideration of principles governing disarmament,

Gravely concerned that, while negotiations on disarmament have not so far achieved satisfactory results, the armaments race, particularly in the nuclear and thermo-nuclear fields, has reached a dangerous stage requiring all possible precautionary measures to protect humanity and civilization from the hazard of nuclear and thermo-nuclear catastrophe,

Recalling that the use of weapons of mass destruction, causing unnecessary human suffering, was in the past prohibited, as being contrary to the laws of humanity and to the principles of international law, by international declarations and binding agreements, such as the Declaration of St. Petersburg of 1868, the Declaration of the Brussels Conference of 1874, the Conventions of the Hague Peace Conferences of 1899 and 1907, and the Geneva Protocol of 1925, to which the majority of nations are still parties,

Considering that the use of nuclear and thermo-nuclear weapons would bring about indiscriminate suffering and destruction to mankind and civilization to an even greater extent than the use of those weapons declared by the aforementioned international declarations and agreements to be contrary to the laws of humanity and a crime under international law,

Believing that the use of weapons of mass destruction, such as nuclear and thermo-nuclear weapons, is a direct negation of the high ideals and objectives which the United Nations has been established to achieve through the protection of succeeding generations from the scourge of war and through the preservation and promotion of their cultures,

I. Declares that:

(a) The use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations;

(b) The use of nuclear and thermo-nuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity;

(c) The use of nuclear and thermo-nuclear weapons is a war directed not against an enemy or enemies alone but also against mankind in general, since the peoples of the world not involved in such a war will be subjected to all the evils generated by the use of such weapons;

(d) Any State using nuclear or thermo-nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization;

2. Requests the Secretary-General to consult with the Governments of Member States to ascertain their views on the possibility of convening a special conference for signing a convention on the prohibition of the use of nuclear and thermo-nuclear weapons for war purposes and to report on the results of such consultation to the General Assembly at its seventeenth session.

Resolution on Human Rights, United Nations, December 19, 1968

RESOLUTION ON HUMAN RIGHTS United Nations, December 19, 1968 General Assembly Resolution 2444

THE GENERAL ASSEMBLY,

Recognizing the necessity of applying basic humanitarian principles in all armed conflicts,

Taking note of resolution XXIII on human rights in armed conflicts, adopted on 12 May 1968 by the International Conference on Human Rights,

Affirming that the provisions of that resolution need to be implemented effectively as soon as possible,

1. Affirms resolution XXVIII of the XXth International Conference of the Red Cross held at Vienna in 1965, which laid down, inter alia, the following principles for observance by all governmental and other authorities responsible for action in armed conflicts:

(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;

(b) That it is prohibited to launch attacks against the civilian populations as such;

(c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible;

2. Invites the Secretary-General, in consultation with the International Committee of the Red Cross and other appropriate international organizations, to study:

(a) Steps which could be taken to secure the better application of existing humanitarian international conventions and rules in all armed conflicts;

(b) The need for additional humanitarian international conventions or for other appropriate legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare;

3. Requests the Secretary-General to take all other necessary steps to give effect to the provisions of the present resolution and to report to the General Assembly at its twenty-fourth on the steps he has taken;

4. Further requests Member States to extend all possible assistance to the Secretary-General in the preparation of the study requested in paragraph 2 above;

5. Calls upon all States which have not yet done so to become parties to the Hague Conventions of 1899 and 1907, the Geneva Protocol of 1925 and the Geneva Conventions of 1949.

On the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, July 8, 1996

On the Legality of the Threat or Use of Nuclear Weapons International Court of Justice The Hague, 8 July 1996

The opinion of the International Court of Justice (“World Court”) came in response to a request from the United Nations General Assembly. The Court found that the threat or use of nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict.” However, the Court was unable to make a determination “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”

In general, the Court based its ruling on the body of international law protecting civilian populations. Its analysis cited specifically Hague II and IV, the Nuremberg Principles, and the Geneva Conventions.

Only the conclusion of the opinion is included here. For more information, see the summary of the opinion and the press release announcing the decision on the website of the International Court of Justice.

[104 paragraphs omitted]

105. For these reasons,
THE COURT

(1) By thirteen votes to one,
DECIDES to comply with the request for an advisory opinion;

IN FAVOUR: PRESIDENT Bedjaoui; VICE-PRESIDENT Schwebel, JUDGES Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: JUDGE Oda

(2) REPLIES in the following manner to the question put by the General Assembly:

A. Unanimously,

There is in neither customary nor conventional international law any specific authorisation of the threat or use of nuclear weapons;

B. By eleven votes to three,

There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;

IN FAVOUR: PRESIDENT Bedjaoui; VICE-PRESIDENT Schwebel; JUDGES Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: JUDGES Shahabuddeen, Veeramantry, Koroma

C. Unanimously,

A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful;

D. Unanimously,

A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E. By seven votes to seven, by the President’s casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of International Law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

IN FAVOUR: PRESIDENT Bedjaoui, JUDGE Renjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;
AGAINST: VICE-PRESIDENT Schwebel; JUDGES: Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma Higgins.

F. Unanimously,

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

Done in English and French, the English text being authoritative, at the Peace Palace, the Hague, this eighth day of July, one thousand nine hundred and ninety six, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

Treaty on the Prohibition of Nuclear Weapons, United Nations, July 7, 2017

Treaty on the Prohibition of Nuclear Weapons United Nations General Assembly adopted July 7, 2017

[excerpts]

The States Parties to this Treaty,

Determined to contribute to the realization of the purposes and principles of the Charter of the United Nations,

Deeply concerned about the catastrophic humanitarian consequences that would result from any use of nuclear weapons, and recognizing the consequent need to completely eliminate such weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances,

...

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited...

Considering that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law,

Reaffirming that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience,

Recalling that, in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State...

...

Article 1 Prohibitions

1. Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices...

...

The full text of theTreaty on the Prohibition of Nuclear Weapons is available on the United Nations website.

Sources and further reading:

Two good sources about the laws of war, which contain many of these documents, are:

Leon Friedman (Ed.), The Law of War: A Documentary History (New York: Random House, 1972).

Adam Roberts and Richard Guelff (Eds.), Documents on the Laws of War, Third Edition (Oxford: Oxford University Press, 2000).