The legality of targeting civilians

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The legality of targeting civilians

Post by Ostfront Enthusiast » 05 Aug 2005 06:39

Hello all.

I would like to know (assuming it exists, that is) the legal basis in the Laws of War for being able to bomb undefended civilian towns (that is, towns with no garrison or defence of any kind).

I have heard that the only way to ensure that, legally, a town can not be bombed is by declaring it "open". What is the legal basis for this claim if any?

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Post by Ostfront Enthusiast » 05 Aug 2005 11:21

Ok, I mya as well start I guess.

Annex to the Convention With Respect To The Laws And Customs Of War On Land (Hague, II) (29 July 1899)
Regulations Respecting The Laws And Customs Of War On Land :

Article 23:
Besides the prohibitions provided by special Conventions, it is especially prohibited:
To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.

Article 25
The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.


Wouldn't this tend to imply that it is unlawful to bomb completely undefended towns, or am I missing something?

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Post by Sean_Lamb » 05 Aug 2005 11:25

What is an undefended town?

A town which is behind the frontline? Or a town which has been declared open by the army that had been defending it?

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Post by paracollector » 05 Aug 2005 12:39

Using the American withdrawl from Manila PI as a model, all military forces in and around the city were pulled out, and if I remember right, broadcast were made open air that the town had been evacuated and was undefended, hence "open".

As you can guess, this is not a common occurrance. Usually retreating armies destroy stratigic assets on their way out, and leave behind "presents" in the form of boobytraps, snipers etc. In this situation the town isn't "open" and can be attacked.

As with most of the "Laws of Warfare" most armies will bend what they can bend, and ignore the rest. In the end we tend to judge an army after the fact not by wether they broke any laws, but how often they did.

John

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Post by Ostfront Enthusiast » 05 Aug 2005 14:12

What is an undefended town?
I am very confused about this exact problem.

The definition appears not to be given in the Convention itself. How, then, should a definition be derived. Do we use a positivist method, that looks for the definiton that gives meaning to the purpose of the articles, or a literalist method that uses ordinary meanings exclusivly.

If we take a literalist approach, what meaning do we give to "defended".

Or am I missing something completely?

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Post by paracollector » 05 Aug 2005 14:31

Ah my Aussie friend. Law are written by Lawyers to keep themselves in bussiness. Its been a while since I have read all the way through the conventions (something like 9 of them give or take), and buried in all the mishmash I belive they do define most of the terms like "Defended". Taking a literalist view, like the US in the Manila example, undefended means the removal of all military forces in and around. This means not one soldier guarding the approach, or in the town proper, or just on the outskirts. This also implies a promise that you won't use something like airpower to start bombing the town the moment the enemy occupies it (of course this implied promise has a shelf life, it does not imply that you will never bomb it, just that "some" time will go by before you feel its OK).

The "open city" concept is more out of sparing the local population the razing of their town for no practical military purpose.

It's pretty much like most modern laws, written in such a way that it could be interpeted to death by people who wish to do so.

John

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Post by David Thompson » 05 Aug 2005 15:36

Ostfront Enthusiast -- You asked:
I would like to know (assuming it exists, that is) the legal basis in the Laws of War for being able to bomb undefended civilian towns (that is, towns with no garrison or defence of any kind).

I have heard that the only way to ensure that, legally, a town can not be bombed is by declaring it "open". What is the legal basis for this claim if any?
Before the late 19th century, it was not illegal to bombard undefended towns and cities, although there was a budding custom in land warfare which disapproved of the practice. The general trend of this budding custom was that the "undefended" place had to be undefended in fact, and the attacker had to have notice of its status. I found examples of declarations of "open cities" going back to the US civil war, and posted links to some of the examples at: http://forum.axishistory.com/viewtopic. ... 825#221825

Article 25 of the Annex to the Hague II Convention of 1899
http://www.yale.edu/lawweb/avalon/lawof ... .htm#art25

prohibited the bombardment of undefended places, as did

Article 25 of the Annex to the Hague IV Convention of 1907
http://www.yale.edu/lawweb/avalon/lawof ... .htm#art25

The term "undefended" was undefined in the Annexes to both conventions, which caused a problem. There is a running discussion of the question of whether a city which has been declared "open" is actually undefended at:

Belgrade 6 Apr 1941: Tactics or war crime?
http://forum.axishistory.com/viewtopic.php?t=73365

The problem became more serious with the development of bombardment by aircraft, but was never really resolved by the start of WWII. There is a review of the history of attempts to limit aerial bombardments by international treaty at
http://forum.axishistory.com/viewtopic. ... 983#608983

See also the Draft Rules for Aerial Warfare (1923 Hague Rules, etc.)
http://forum.axishistory.com/viewtopic.php?t=71763

which were not formally adopted.

After WWII the practice of bombardment was clarified by the August 12, 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, at:
http://www.yale.edu/lawweb/avalon/lawofwar/geneva07.htm

and Protocol I: Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977
http://www.globalissuesgroup.com/geneva/protocol1.html

which contain the latest provisions of international law.

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Post by DXTR » 05 Aug 2005 18:09

Let me just add to David Thompsons post, that the idea of defended/undefended was established according to the hague, in the context of the military strategy as well as the restrain enduced by the technological achivements at the time. In 1907 aeroplanes was just a new invention and with its technological limits a force not fully recognised at the time of the Hague 1907. Bombings from balloons was forbidden at the time. So the idea of a defended city was firmly limited to landwarfare, since airbombings was technically limited at the time to ballons and therefore forbidden. Since frontline cities can be fortified and therefore be defended (or closed) how about 'behind the lines' cities? Since they are not under an immediate threat of being attacked by a landforce, how do they fare in a time of aerial bombardement? Writers have argued that those cities was only to be attacked if they were defended by AAA. If a city was not defended by antiaircraft artillery it was not to be attacked. But an airborne attack against enemy production is not intended to 'take' the city as the classic situation of a defended city normally would suggest.

So the question was then, should one warmonging country be prevented from attacking a city that had no AAA (if so everybody could just remove its AAA to prevent the advisary from bombing it), some writers believe that war production upgrades a city to 'defended' and thereby a legitimate target, (see A.P.V Rogers Law on the Battlefield Manchester U.P. 1996).

regards

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Post by walterkaschner » 05 Aug 2005 23:29

One other point.

Against bombardment by air, a city can be defended not only by local AA batteries, but also quite effectively by fighter aircraft or long range missles located many miles away. And given the speed and armament of modern naval vessels, seaports can be defended against land attack by a fleet of capital ships stationed far over the horizon. In my view, present technology renders the concept of "undefended" virtually meaningless, and the only means of preventing a city from being attacked is to declare it an "open city" which will not be defended, and remove all possible means of defense far enough away from the city so as to demonstrate that there is no intent to defend it. Even then, misunderstandings or failure of timely communication may result in an attack, such as appears to have been the case in the German attack on Rotterdam in WWII.

Regards, Kaschner

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Post by DXTR » 06 Aug 2005 17:50

let me just follow on walterkaschner's lead here

Technology vs. ethics....

The issue of course with the laws of war is that they are made by states with individual motives for regulating warfare, Russia started the Hague proces, but their motive was not from a humane point of view instead they had an arms reduction in mind, knowing that they eventually would have a problem with future German technological advantages. The same could be said about notably german reluctance for signing the Hague in regards to forcing civilians of occupied territory to furnish the enemy (in this case germany) with information on enemy movenment.

States make the laws, and when they seldom agree on something in regards to the laws of war, I would argue that they have pondered whether the said law would seriously restrain their war capability. USA have not signed the anti-personel mine treaty since they rely on minefields in protecting the north/south korean border. We could open yet another discussion on aerial bombardement, and whether that is a war crime or not, but interestingly enough the attempt in Hague in 1922 for implementing a convention regarding what constitute a legitimate target in warfare, was in vain. Why? Because the powers at be, was fascinated with the promises of a quick victory from above. After 4 years of trench warfare who would give up a weapon that might bring a war to an end simply by bombing the hell out of the enemys industrial capability and the defensive spirit of the population? As I said the laws of war might have a humane outlook, but I would argue that being signed by states, they are agreed upon as long as the laws does not seriously restrain that particular state in its war fighting capability. Therefore the driving force in international law making are states, and I wonder if US. officials will, in the face of terror, be able to change the laws of war in regards to POW's so that the definition of 'war' can be changed, so that terorists can be retained indefinately....

Hope that I didn't stray to far off the topic... maybe I did...

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Post by JamesL » 07 Aug 2005 01:29

An undefended 'civilian' city may still be a legitimate military target.

If I remember correctly Rome was declared an 'open city'. However, Rome was still a transportation center for German military supplies. Maybe the city did not have AA or combat troops, but heaps of military supplies moving thru the city would make it a legitimate military target.

Hiroshima was a communications center for the Japanese Home Army.

And so on .......

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Post by Jari » 07 Aug 2005 17:28

walterkaschner wrote:One other point.

Against bombardment by air, a city can be defended not only by local AA batteries, but also quite effectively by fighter aircraft or long range missles located many miles away. And given the speed and armament of modern naval vessels, seaports can be defended against land attack by a fleet of capital ships stationed far over the horizon. In my view, present technology renders the concept of "undefended" virtually meaningless, and the only means of preventing a city from being attacked is to declare it an "open city" which will not be defended, and remove all possible means of defense far enough away from the city so as to demonstrate that there is no intent to defend it. Even then, misunderstandings or failure of timely communication may result in an attack, such as appears to have been the case in the German attack on Rotterdam in WWII.

Regards, Kaschner
IMHO this doesn't render the city as 'defended' in the sense that level bombing it would make sense militarily - because the defences are not inside the city, attacking the city harms only the civilians.

Unfortunately, these rules are difficult to uphold at a time of total war. If a city is declared open but there is an important bridge that goes through, does it count as a legitimate target? My interpretation is that no, but the bridge itself is, so bombing the bridge's vicinity (considering the limitations of contemporary air bombardment accuracy) is allowable. BUT nuking the whole locale off the map is out of bounds.

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Post by walterkaschner » 07 Aug 2005 19:52

Jari wrote:
walterkaschner wrote:One other point.

Against bombardment by air, a city can be defended not only by local AA batteries, but also quite effectively by fighter aircraft or long range missles located many miles away. And given the speed and armament of modern naval vessels, seaports can be defended against land attack by a fleet of capital ships stationed far over the horizon. In my view, present technology renders the concept of "undefended" virtually meaningless, and the only means of preventing a city from being attacked is to declare it an "open city" which will not be defended, and remove all possible means of defense far enough away from the city so as to demonstrate that there is no intent to defend it. Even then, misunderstandings or failure of timely communication may result in an attack, such as appears to have been the case in the German attack on Rotterdam in WWII.

Regards, Kaschner
IMHO this doesn't render the city as 'defended' in the sense that level bombing it would make sense militarily - because the defences are not inside the city, attacking the city harms only the civilians.

Unfortunately, these rules are difficult to uphold at a time of total war. If a city is declared open but there is an important bridge that goes through, does it count as a legitimate target? My interpretation is that no, but the bridge itself is, so bombing the bridge's vicinity (considering the limitations of contemporary air bombardment accuracy) is allowable. BUT nuking the whole locale off the map is out of bounds.
It seems to me that the traditional motive for attacking a city was rarely simply to annihilate its defenders. It was far more likely that the city being attacked was conceived as serving some strategic or tactical military purpose: a manufacturing center, a ship yard, a vital transportation link, a marshalling yard, a potential center of resistance if left unoccupied, or of such vital symbolic importance to the enemy that it's injury or loss was thought to have a devastating effect on the enemy's morale. Unfortunately, with the growing general acceptance of the concept of "total war" and the dramatic technological developments in the ability of weaponry to cause widespread death and destruction, the latter motive became increasingly prevalent in the last century, and culminated in some of the horrors of WWII.

Traditionally, declaring a city "open" has meant that it will not be defended, is open to occupation by enemy forces without resistance, and will refrain from serving any further military purpose in opposition to the enemy. So I don't understand the problem with the important bridge - if the city is truly "open" what would be the enemy's motive for destroying it?

Regards, Kaschner

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Post by DXTR » 07 Aug 2005 19:52

jari wrote:
If a city is declared open but there is an important bridge that goes through, does it count as a legitimate target? My interpretation is that no, but the bridge itself is, so bombing the bridge's vicinity (considering the limitations of contemporary air bombardment accuracy) is allowable. BUT nuking the whole locale off the map is out of bounds.

The problem with defended/undefended or open city is was I pointed out before outspoken in WWII because the rules of war did not match the conduct of war... in other words it would be fruitless to look through the rules of war as they were in world war two to find an adequate rule that either permits or forbids an attack on a city from the air defended/undefended since that rule applied to a situation before industrial warfare as well as the advent of long range bombers. After WWII the rule of proportion was included in the laws of war:

The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977:
Art 57. Precautions in attack

1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.

2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.

3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.

5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects
(source: http://www.icrc.org/Web/Eng/siteeng0.ns ... onventions)

So the general guideline today (and note that not all states have ratified the protocols), is that the loss of civilian life shall not be in excess as compared to the military advantages resulting from the attack. A bit of a problem since what is a not in excess as compared to the advantage of taking out a military target? Everyone can agree that nuking a kindergarten just because a single soldier hid there is in excess, but what about taking out a residential block because intelligence suggested that Saddam was having a dinnerparty in the restaurant on the first floor? (not that this is up for discussion) we can all agree on the extreme cases but how about the other more difficult cases?... I find it frustrating this 'rule of proportion', since on one hand it is a slippery slope towards all-out war, on the other hand we can't fight a war if civilians are not to be harmed in any way....

kind regards

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Post by walterkaschner » 07 Aug 2005 23:24

DXTR, IMHO you have precisely defined the dilemma, and the criterion articulated in the Protocol really serves no practical purpose. A "proportionality" test is bound to be viewed differently in the eyes of the attacker than in the eyes of the victim! Indeed, it may be worse than having no rule at all.

Regards, Kaschner

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