Lawyer 527 (1971); Rolland, "Les Pratiques de la Guerre Aerienne" (The Practices of Aerial Warfare), Review of International Law 552 (1916); Royce, supra at 193; Spaight, supra at 224-229. Military objective test and WWII. Spaight, supra note 3, at 265-271; Goda, supra note 4. Military objective test and Vietnam, infra note 23. On economy of force and aerial bombardment, see Possonny, Strategic Air Power 63-73 (1949) and other authorities, supra note 5.

23 For discussion, see Carnahan, supra note 5. On Korea, compare 10 Whiteman, supra note 14, at 140, 422 with 138-139. On Vietnam, compare 10 Whiteman, at 425-429 [US regarded roads, railroads, petroleum facilities, barracks and supply depots in North Vietnam as legitimate targets and denied bombing hospitals, textile plants, fruit canning plants and dikes]; with Freymond, "Confronting Total War: A 'Global' Humanitarian Policy," 67 Am. J. Int'l. L. 672 (1973) quoting a letter from N. Vietnam accusing US of indiscriminately bombing hospitals, schools, road transport stations, markets, villages, fishing vessels, churches and pagodas. Only in the case of "road transport stations" might there be a direct conflict between US and N. Vietnam as to legitimacy of targets. The 1923 Draft Hague Rules fully recognized that lines of communications and transportation used for military purposes were military objectives. Article 8b of the Hague Convention on the Protection of Cultural Property in the Event of Armed conflict, 14 May 1954, (as a condition for special protection for cultural property) requires separation "from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defense, a port or railway station of relative importance or a main line of communication." 249 UNTS 216. The US is a signatory but not a party to this Convention.

24 On precautions, see U.N. Res. 2675, supra note 19 (which suggested "all necessary precautions" as the rule).

Incidental Casualties. The recognition that incidental civilian casualties are permissible if not excessive in relation to the distinct military advantage attempted to be secured is confirmed by authorities. note 21 supra. See also Rovine, supra note 18 at 124-125, quoting letter of DOD General Counsel to Senator Kennedy which reads, in part, "I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian populations or civilians as such, but there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule which has applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that the 'loss of life and damage to property must not be out

of proportion to the military advantage to be gained'." The proportionality requirement is so basic it applies to internal struggles. Bond, The Rules of Riot 93, 87, 110 (1974).

Advance Warning. Warnings are frequently useful for psychological purposes in addition to serving the function of avoiding or minimizing civilian casualties. When given, they have usually been general (i.e. not specific as to time and place of attack) in the interest of preventing the enemy from using the warning to his military advantages. See various warnings reproduced in 10 Whiteman, supra note 14, at 140-141; Spaight, supra note 3, at 240. Judicial Authorities. The legal problems involved in an air raid are very similar to those raised when land or naval forces raid behind an enemy's lines. For discussion, see Carnahan, supra note 5, who discusses US Civil War cases. The warning requirement as to air warfare was also adjudicated before the Greco-German Mixed Arbital Tribunal in two cases holding liability for failure to give warning. See Schwarzenberger, supra note 4, at 144. 25 For historic development, see proceedings, 1972 Am. Soc. Int'l. L; President Nixon's News Conference of 27 July 1972, 62 State Dept. Bull. 173, 201, 203 (1972); Secretary General's Reports, supra note 20.

26 The historical record confirms that the words "by whatever means" were added to specifically include attacks by aircraft. The meaning of this requirement has been subject to prolific argument for generations among legal scholars. See Carnahan, supra note 5; Greenspan, supra note 4, at 332; Note, "Open Towns," 22 Brit. Y.B. Int'l. L. 258, 261 (1945); Spaight, supra note 3, at 221; Williams, "Legitimate Targets in Aerial Warfare," 23 Am. J. Int'l. L. 570, 573 (1929); 10 Whiteman, supra note 14, at 434. The protection of open cities, while causing difficulty in application, has always been a firm requirement of international law. Past arguments usually involved whether the area was in fact open to unopposed occupation or whether combatants and mobile military equipment had been removed.

27 Westlake, International Law-War 314.

27a The rest of the quotation from Article 2, Hague IX, is reprinted in paragraph 5-2, this publication. 28 This principle [of distinguishing between civilians and combatants and military objectives and civilian objects] recognizes the interdependence of the civilian community with the overall war effort of a modern society. But its application enjoins the party controlling the population to use its best efforts to distinguish or separate its military forces and war making activities from members of the civilian population to the maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military objectives, will be minimized as much as possible." DOD. General Counsel, quoted supra note 18, at 123.

Article 14 and 15, GC, provide for neutralized zones by agreement between states in peace or in times of armed conflict. The principle was used successfully in the Sino-Japanese conflict. Spaight, supra note 3, at 256. Military advantages secured by separation are discussed in Kissinger, Nuclear Weapons and American Foreign Policy (1957).

29 Hospitals/Mobile medical (Art 19, GWS; Art 18, GC).

Medical transport (Art 35, GWS; Art 21, GWSSEA; Art 21, GC) Discussed in chapter 12.

Medical Aircraft (Arts 36 & 37, GWS; Arts 39 & 40, GWS-SEA; Art. 22 GC). Discussed in Chapter 4.

Hospitals ships & Sick bays (Art. 20, GWS; Arts 22-35, GWS-SEA; Art 21, GC.) For discussion on abuse of markings, see chap 8; for Convention, see chapter 12.

Wounded and sick-medical personnel, see chapters 3, 4, and 12.

30 Art. 23 and Annex 1, GWS; Arts 14 and 15, GC. 31 This requirement is derived from Article 27, HR, and Article 5, Hague IX. World War II practice is discussed in Spaight, supra note 3, at 286. The relationship between the law of armed conflict and effective military action was noted in the statement. "If the Germans go on long enough bombing

[cultural objects] while we bomb essentially military objectives, Germany will lose the war even quicker that she is bound to do anyway" cited by Spaight, supra note 3, at 287, quoting Mr. Herbert Morrison. This principle has been reaffirmed by other international agreements. Treaty on the Protection of Artistic and Scientific Institutions, and Historic Monuments, 15 April 1935, 49 Stat 3267, TS 899; 3 Bevans 254; 167 LNTS 279 (1935) [known as Roerich Pact].

32 Article 23, GPW. PG Stands for the French "Prisonniers de Guerre"

33 Crew members are not bound to know the contents of propaganda that is distributed since it is frequently in a different language. For historical development of rule sanctioning this use of military aircraft and requirement that members of the crew must not be deprived of their rights because they have distributed propaganda, see Article 21, Draft Hague Rules of Air Warfare, supra note 4; Garner, "Proposed Rules for the Regulation of Aerial Warfare," 18 Am. J. Int'l. L. 64 (1924) and authorities cited in 10 Whiteman, supra note 14, at 339-401. Spaight, supra note 3, at 318-319, 330-334 and Greenspan, supra note 4, at 324, discuss restrictions on propaganda.