Rules for Aerial Warfare (1923 Hague Rules, etc.)

DrG · Post by **DrG** » 22 Feb 2005 01:57

In this thread I will post the scans of the commentary of the 1923 Hague Rules for Aerial Warfare by Remigiusz Bierzanek, Professor of Law, University of Warsaw published in pages 396-408 of Natalino Ronzitti (editor), "The Law of Naval Warfare. A Collection of Agreements and Documents with Commentaries", Martinus Nijhoff Publishers (distributed by Kluwer Academic Publishers), Dordrecht / Boston / London, 1988, ISBN 90-247-3652-8.

DrG · Post by **DrG** » 22 Feb 2005 01:58

Pages 399-401:

DrG · Post by **DrG** » 22 Feb 2005 02:00

Pages 402-404:

DrG · Post by **DrG** » 22 Feb 2005 02:02

Pages 405-407:

DrG · Post by **DrG** » 22 Feb 2005 02:02

Page 408:

DrG · Post by **DrG** » 22 Feb 2005 02:04

And now I will post, just for reference, the bibliography of the chapter 5 "La guerra aerea" of Prof. Natalino Ronzitti, "Diritto internazionale dei conflitti armati", Giappicchelli, Torino, 2001, ISBN 88-348-1232-8. This bibliography provides a good number of sources about aerial warfare.

David Thompson · Post by **David Thompson** » 22 Feb 2005 02:27

Thanks, DrG. The commentary on the 1923 Aerial Warfare proposed treaty is very interesting.

I remember the proposed treaty now from an earlier discussion on the Dresden bombings. One of the posters claimed that the bombings were war crimes based on the text of this instrument, and when it was pointed out that the treaty had not been signed and ratified, he claimed the treaty was applicable anyway on an "international common law" theory.

Those discussions start at:

http://forum.axishistory.com/viewtopic. ... 523#227523
http://forum.axishistory.com/viewtopic. ... 660#227660

Curioso · Post by **Curioso** » 26 Feb 2005 10:45

David Thompson wrote:Thanks, DrG. The commentary on the 1923 Aerial Warfare proposed treaty is very interesting.

I remember the proposed treaty now from an earlier discussion on the Dresden bombings. One of the posters claimed that the bombings were war crimes based on the text of this instrument, and when it was pointed out that the treaty had not been signed and ratified, he claimed the treaty was applicable anyway on an "international common law" theory.

Those discussions start at:

http://forum.axishistory.com/viewtopic. ... 523#227523
http://forum.axishistory.com/viewtopic. ... 660#227660

And should a discussion about these draft documents and that theory continue here, or there? I ask because that thread is rather broadly titled "Churchill's warcrimes" (sic).

David Thompson · Post by **David Thompson** » 26 Feb 2005 15:37

Curioso -- You asked:

And should a discussion about these draft documents and that theory continue here, or there? I ask because that thread is rather broadly titled "Churchill's warcrimes" (sic).

Please continue the discussion on this draft treaty here. The sprawling "Churchill's warcrimes" thread is one of the reasons I decided to discontinue multi-topic threads. There's a lot of good information in the Churchill thread, but you have to read through many pages to find it.

Curioso · Post by **Curioso** » 28 Feb 2005 15:21

David Thompson wrote:Curioso -- You asked:
And should a discussion about these draft documents and that theory continue here, or there? I ask because that thread is rather broadly titled "Churchill's warcrimes" (sic).
Please continue the discussion on this draft treaty here. The sprawling "Churchill's warcrimes" thread is one of the reasons I decided to discontinue multi-topic threads. There's a lot of good information in the Churchill thread, but you have to read through many pages to find it.

Thank you.
I will now try to sum up what I know about the applicability of these draft rules, then.

In the sprawling "Churchill's warcrimes" (sic) thread, a member who is now banned claimed that
a) those draft rules had been signed, and
b) those draft rules had, anyway, become "international common law" because Japan had undertaken a commitment to comply with them during the Japanese-Chinese war.

I see some problems with these claims.
a) seems to be unsupported, at least by the original poster. He never stated when or where the draft rules were signed, by whom and in what capacity, and how binding that alleged signature was, in the light of the fact that these draft rules were actually never ratified. If anybody has more documented information on this issue, I'd be glad to read it.
b) seems to be irrelevant for the formation of customary law. Customary law is based on precedents. As the name implies, customs, that is _actual behavior patterns_, take force of law. So on the one hand we have an empty promise the Japanese soon broke; on the other hand we have actual behavior patterns, that is, the bombing operations in Libya in 1911, and in WWI, the counter-insurgency use of bombers by Great Britain and Italy, the Abyssinian War, the Spanish Civil War, and, above all, the actual Japanese behavior in China (which dismantles what little credence could remain to the claim that their committment has any weight in the formation of a customary law). It would seem that the customs were that at least defended cities could and would be bombed by airplanes.

Now on to a more reliable position. In this same forum, a well-researched paper was posted (written by the RAF Director of Defense Studies). You can find it in the thread titled "Dresden 1945 - Just Another Raid?".
The author gives quite enough space to the proposed rules concerning air warfare. He, however, never claims they had been widely accepted as standard customs, which means he does not think they can be considered as accepted customary laws. He does say that lawyers, and the jurist charged with carrying out negotiations at disarmament conferences, considered them "authoritative" - but he points out air staffs didn't. "Authoritative" in a peace conference has little weight on actual customs in the field, as the author soon acknowledges.
Chamberlain is quoted as stating that military objectives only, as opposed to civilian ones, had to be bombed - a position that seems oblivious to the fact that a defended city is ipso facto a legitimate military objective, in compliance with the Hague Convention IV of 1907.

Had the real decision-makers (as opposed to lawyers) decided they wanted those rules to be binding, they would have taken care of that. Evidently, they did not want that.

So the Hague Draft Rules of 1923 were not binding. They had not been explicitly accepted as such by means of a ratified treaty or convention; and they can't be said to have become customary laws, as the actual customs were not complying with them. The Convention applicable to air bombings in WWII remained, and remains, the one dated 1907.
I'd be glad to know what other posters can contribute to this issue.

walterkaschner · Post by **walterkaschner** » 01 Mar 2005 01:50

Many thanks to DrG for posting the excellent Commentary by Professor Bierzanek on the 1923 Hague Rules for Arial warfare and for the link to the text of the Rules themselves.

Also thanks to Curioso for his thoughtful comments. I think his conclusion is unassailable that:

So the Hague Draft Rules of 1923 were not binding. They had not been explicitly accepted as such by means of a ratified treaty or convention; and they can't be said to have become customary laws, as the actual customs were not complying with them.

I would, however, question, at least with respect to WWII,his view that:

The Convention applicable to air bombings in WWII remained, and remains, the one dated 1907.

Article 2 of the Hague Convention (IV) of 1907 states that " The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention." This to me makes perfect sense, and was, I believe, a provision common to the entire set of 1907 Hague treaties.

It is my recollection (although I do not have a source readily at hand) that neither Italy, Greece nor the Soviet Union were parties to Hague (IV) - the Soviet Union due to its blanquet renunciation of all Czarist treaties. I do have a vague recollection that Italy, - and perhaps also Greece, - was a party to the 1899 Convention, the provisions of which were quite similar to the 1907 version and also contained an "all-belligerents" clause, but in any case the status of the Soviet Union as a non-party would seem to render neither treaty applicable.

Note that Professor Bierzanek states (for the above as well as other reasons) that:

Most international lawyers agree that prohibition of bombardment as formulated in the Declarations of 1899 and 1907 is not a binding norm of international law.

Certainly during WWI at least neither Germany nor England felt themselves bound to refrain from the indescriminate bombing of civilian targets. On June 15, 1917 a force of 18 German "Gotha" bombers attacked London, scoring a hit on the Liverpool Street commuter station and killing 162 people, 46 of which were schoolchildren. Another raid against London followed in July, resulting in 57 dead and 193 injured. With the organization of the R.A.F. in 1918 under the command of Hugh Trenchard, indescriminate bombings of major German cities commenced, although the results were comparatively meager. The 675 Allied raids produced 746 fatal German casualties, but the British lost 352 aircraft downed and 264 crewmen killed in the process - 1 dead airman for 3 dead Germans. Frederick Taylor, Dresden, February 13, 1945 (HarperCollins, 2004) at 81-2, citing Stephen A. Garrett, Ethics and Airpower in World War II: The British Bombing of German Cities (New York, 1996) p.3f.

Regards, Kaschner

David Thompson · Post by **David Thompson** » 01 Mar 2005 04:25

Signatories to the Hague IV Convention of 1907
http://forum.axishistory.com/viewtopic. ... 802#625802

walterkaschner · Post by **walterkaschner** » 01 Mar 2005 08:14

Thanks David, I'm embarrassed that I don't keep track of all the excellent information you furnish in this Section, and will try to use the search key more often. The ICRC site you linked to on the thread you cited to is exceedingly useful; I greatly appreciate the reference and have added it to my Favorites. I've been ineptly Googling around for a list of treaty signatories for some time with no success. I'm surprised that Yale's Avalon Project does not carry that information (were it Harvard's I'm sure it would be included). We are extremely fortunate to have you as a moderator; you are a gushing fountain of excellent information.

I was relieved to see that my memory was correct in that neither Greece nor Italy were signatories to the 1907 Hague (IV) Convention but were signatories to the 1899 Hague (II), which also contained an "all-belligerents" proviso and terms similar to those in 1907 Hague (IV) although somewhat different as to bombardments.

But my recollection that the Soviet Union early on proclaimed a blanket renunciation of all treaties Czarist Russia had entered into, including 1907 Hague (IV), may be faulty, as I note your view on the thread you cited that the Soviets were a party to that one. I no longer have access to a good law library, but will try to do further research on the point. However that may be, the major combatants in WWI nor those in WWII obviously did not feel prohibited either by treaty provision or by customary law from engaging in indiscriminate bombing of civilian targets.

Regards, Kaschner

Curioso · Post by **Curioso** » 01 Mar 2005 09:49

(snip)

Regards, Kaschner

Mr. Kaschner,

thank you for your thought-provoking input. I have to say I disagree with you, because you considered only one of two ways to international law; the voluntary cession of parts of national sovereignty by the ratification of binding international treaties.
The other one, which was pointed out in the other thread by another poster, and which made me want to pursue this issue, is of course the establishment of customs. I did say I do not believe that the Hague Draft Rules became binding international law in this way - but that is my position because there is not a pattern of recognized actual customs supporting those rules. Quite the contrary.

On the other hand, it could certainly be argued that the 1907 Convention IV _already_ was customary; remember its preamble, it states it was intended to organize and set forth what were already the "laws and customs" of war on land. And after 1907, the Convention as a whole was largely respected in most wars. There were violations, but these were regularly decried and denounced as such. War crimes - violations of the existing customs of war, which were basically summed up by the 1907 Conventions (the IV and the others) - were a serious issue in the settlement agreements of WWI.
I need to do more research on this issue, but for the time being I deem that what was argued with regard to the Hague Draft Rules, and proven unapplicable to them, could very well be argued, and proven applicable, with regard to the 1907 Conventions.

Of course the 1907 Convention IV, regardless of the outcome of the above issue, _would_ be applicable, in any case, to aerial bombing missions between countries that had ratified that Convention and never renounced it.

David Thompson · Post by **David Thompson** » 01 Mar 2005 16:04

Thanks, Walter. You said:

However that may be, the major combatants in WWI nor those in WWII obviously did not feel prohibited either by treaty provision or by customary law from engaging in indiscriminate bombing of civilian targets.

I wholeheartedly agree:

http://forum.axishistory.com/viewtopic. ... 671#608671
http://forum.axishistory.com/viewtopic. ... 983#608983

I had so much trouble running down information on these international treaties that I had to assemble a "cheat sheet," which I posted at: http://forum.axishistory.com/viewtopic.php?t=26829
I keep updating it (and the other announcement threads here) as I find more sources and links -- otherwise, I couldn't find anything either.