military objectives from attack or impede military operations.

b. Result of Failure to Separate Military Activities. The failure of states to segregate and separate their own military activities, and particularly to avoid placing military objectives in or near populated areas and to remove such objectives from populated areas, significantly and substantially weakens effective protection for their own population. A party to a conflict which places its own citizens in positions of danger by failing to carry out the separation of military activities from civilian activities necessarily accepts, under international law, the results of otherwise lawful attacks upon valid military objectives in their territory.

c. Protection Gained Through Separation. Existing international law recognizes and encourages the right of states to separate military activities from population centers in order to gain effective protection during armed conflict. Both the 1923 Draft Hague Rules and the 1949 Geneva Conventions recognize the right of states, by agreement, to create safety zones or demilitarized zones. Doubtless the creation of such zones would be one of the most effective measures to enhance protection of one's own civilian population, and if the conditions required to make a zone were fulfilled and maintained, virtually all civilian casualties would be avoided in this zone.

5-5. Special Protection. In addition to the general international law rules protecting civilians and civilian populations, specific protections are applicable to certain facilities.

a. Wounded and Sick, Medical Units and Hospitals and Medical Means of Transport. 29 The law of armed conflict has traditionally provided special protection to the wounded and sick and to persons, facilities and transports caring for wounded and sick. The following persons and objects must be respected and protected from attack pursuant to the 1949 Geneva Conventions.

(1) Hospitals and other fixed or mobile medical establishments.

(2) Medical personnel and chaplains.

(3) Medical transport. (4) Medical aircraft.

(5) Hospital ships and, to the extent possible, sick bays of warships.

(6) Wounded, sick and shipwrecked. The protection accorded to the foregoing persons and objects means they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper function. The accidental injury of such personnel, or damage to objects, due to their presence among or in proximity to military targets actually attacked, by fire directed against the latter, gives no just cause for complaint.

b. Special Hospital and Neutralized Zones. 30 The Geneva Conventions of 1949 provide for protected or safety zones established by agreement between the parties to the conflict. Safety zones established under the Geneva Conventions of 1949, or by other agreement among parties to a conflict, are immune from bombardment in accordance with the terms of the agreement.

c. Religious, Cultural, and Charitable Buildings and Monuments. 31 Buildings devoted to religion, art, or charitable purposes as well as historical monuments may not be made the object of aerial bombardment. Protection is based on their not being used for military purposes. Combatants have a duty to indicate such places by distinctive and visible signs. When used by the enemy for military purposes, such buildings may be attacked if they are, under the circumstances, valid military objectives. Lawful military objectives located near protected buildings are not immune from aerial attack by reason of such location but, insofar as possible, necessary precautions must be taken to spare such protected buildings along with other civilian objects.

d. Prisoner of War Camps. 32 Prisoners of war and prisoner of war camps enjoy a protected status under the law. PWs may not be the object of attack, detained in combat zones or used to render areas immune from military operations. Parties to a conflict must convey to all other nations concerned all useful information regardi

the geographical location of their PW camps. Wherever military considerations permit, PW camps are identified during the daytime by the letters "PW" or "PG" placed so as to be clearly visible from the air. Parties to a conflict may also agree upon any other system of markings. However, only PW camps may be so marked, and the use of PW camp markings for other purposes is prohibited. PWs are required to have shelters against air bombardment and other hazards of war to the same extent as the civilian population.

b. Propaganda for the purposes of inducing enemy combatants to rebel, desert, or surrender is not prohibited. Inducements may take the form of monetary rewards. In World War I, Austrian airmen dropped leaflets over Italian lines inviting desertion with the promise of compensation for every airplane surrendered intact. In the Korean conflict, an award was offered to any enemy flier who would defect with his plane intact to the United Nations Command. In fact $100,000 was paid to a North Korean pilot for such a defection. Although the international law regulating armed conflict sanctions the use of military aircraft and aircrews to deliver propaganda, not all forms of propaganda are lawful. Propaganda which would incite illegal acts of warfare, as for example killing civilians, killing or wounding by treachery or the use of poison or poisonous weapons, is forbidden.

Air to air and air to sea operations are discussed in chapter 4; aerial weapons are discussed in : chapter 6; independent missions (espionage and i sabotage) are discussed in chapter 9.

2 Declaration Prohibiting Launching of Projectiles and Explosives from Balloons, signed at The Hague July 29, 1899, 32 Stat. 1839; TS 393 (entry into force 4 Sept 1900, expired Sept 4, 1905). Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons, October 18, 1907, 36 Stat. 2439; TS 546; 1 Bevans 739 (1909). Principal states which are parties to the 1907 Declaration include Australia, Brazil, Canada, China, India, the United Kingdom, and the United States among some 28 states. The USSR, Germany, and Japan are not parties. Background to the Declaration is discussed in Higgins, The Hague Peace Conferences 488, 491,521 (1909); Scott, The Hague Peace Conferences of 1899 and 1907 (1907); Spaight, Air Power and War Rights 42 (1947); Garner, "Some Questions of International Law in the European War," 9 Am. J. Int'l. L. 72, 96 (1915).

32 Oppenheim's International Law 229 (Lauterpacht ed. 1952); Spaight, Air Power and War Rights 198 (1947); Stone, Legal Controls of International Conflict 551 (1973); The International Military Tribunal at Nurenberg noted “. . . by 1939, these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the Laws and Customs of War ...' quoted in UN War Crimes Commission, History of The United Nations War Crimes Commission 221 (1948).

4 For full text of the rules, see Greenspan, The Modern Law of Land Warfare 650 (1959); 1 The Law of War 437 (Friedman ed. 1972). For discussion, see Moore, International Law and Some Current Illusions 182-288 (1924). Spaight, supra note 2, at 42, notes they have the authority which the eminence of the jurists who prepared them conferred upon them. 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 154 (1968) confirms they are not binding custom. See also DeSaussure, "The Laws of Air Warfare: Are There Any?." 5 Int'l. Lawyer 527, 531 (1971); Stone, supra note 3, at 609. Greenspan, supra at 352, argues they have strong persuasive authority.

5 Legal issues: 2 Lauterpacht, supra note 3, at 527530; Carnahan, "The Law of Air Bombardment in its Historical Context," 17 AFLR 39 (Summer 1975); Goda, "The Protection of Civilians from Bombardment by Aircraft: The Ineffectiveness of the International Law of War,” 33 Mil. L. Rev. 93 (1966); as well as standard sources on the law of armed conflict. Effects of US and allied aerial

bombardment are exhaustively covered in National Fire Protection Assoc., Fire and the Air War, (Bond ed. 1946). US preference for daylight precision bombing is discussed in Ambrose, The Supreme Commander 372 (1970); Calvoceressi and Wint, Total War 498 (1972); Glines, The Compact History of the United States Air Force 216 (1963); and USAF, The Army Air Forces in WW II Vol 1, at 597 (1962). Effect on morale is discussed in Pacific, The Effects of Strategic Bombing on Japanese Morale (1947) and The Effects of Strategic Bombing on German Morale (1947) in US Strategic Bombing Survey.

6 Churchill, The Hinge of Fate 279 (1950).

7 Various other appeals of a similar nature were also made. 6 Hackworth, Digest of International Law 267 (1943).

8 For an excellent discussion of this, see Carnahan, supra note 5, at 39. See also Lauterpacht, supra note 3, at 527; Higham, Air Power: A Concise History 104, 131 (1972); Spaight, supra note 3, at 53; 2 Wheaton, International Law 351 (7th ed. Keith 1944).

9 Greenspan, supra note 4, at 336. Target area bombing of broad industrial complexes was practiced by various belligerents on selected occasions throughout WW II. The term target area bombing should not be confused with selective pattern bombing over narrow areas to eliminate specific military objectives. Resort to target area bombing is invariably linked to failures to separate military activities from population centers and complex defense and concealment techniques. Since World War II, increased emphasis upon protection of civilians, the civilian population, and civilian objects, coupled with advancements in bombing accuracy and technology, have led to reduced reliance upon target area bombing as a useful technique. Legal controversy surrounds bombing techniques and tactics in Vietnam. Air War Study Group, Cornell University, The Air War in Indo China 147 (Littaur & Uphoff ed. 1972); Mallison & Mallison, "The Concept of Public Purpose Terror in International Law: Doctrines and Sanctions to Reduce the Destruction of Human and Material Values," 18 How. L.J. 12, 25 (1974). In fact, the use of target area bombing in populated areas has always been controversial, as noted by Spaight, supra note 3, at 272; Stone, supra note 3, at 627. Higham, supra note 8, at 131, notes: "Area attacks while perhaps justifiable as retaliation, were a complete violation of the principles of war strategically. They vitiated forces rather than concentrating them against the decisive point, they were uneconomical of force, and they strengthened the enemy will to resist."

10 Carnahan, supra note 5, at 57. For contrasting

discussions of the Japanese campaign, see Caiden, A Torch to the Enemy (1960); Lemay and Kantor, Mission with Lemay 352 (1965); Truman, 1 Memoirs by Harry S. Truman, Year of Decisions 417-420 (1955); Spaight, supra note 3, at 276. Shimoda v. State, 32 I.L.R. 626 (District Ct. of Tokoyo, Japan 1963), reported in 8 Japanese Annual of Int'l. Law 212 (holding atomic bombing of Hiroshima and Nagasaki to be unjustified) is discussed in Falk, "The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki,” 59 Am. J. Int'l. L. 759 (1965).

11 For background, see UN War Crimes Commission, supra note 3, as well as authorities in chapter 15, footnote 37. A trial of interest to lawyers is US vs Alstoetter (Justice Trial), a trial of lawyers, discussed in Miles, "The Justice Trial," 17 AFLR 16 (Spring 1975). During the war, Japan tried and executed American Airmen who were captured in the first Dolittle raid. The US protested this, noting the Airmen were ordered to attack only military objectives. After the war, the Japanese personnel responsible for this trial were likewise tried. Spaight, supra note 3, at 59.

12 15 Law Reports of Trials of War Criminals 110 (1947-1949). In fact all of the examples listed were in occupied territory. But see Lauterpacht, supra note 3, at 529.

13 US vs. Ohlendorf, 4 US Trials Before the Nuremberg Military Tribunal 466-467 (1948). For discussion of bombing in other trials, see Carnahan, supra note 5.

14 In fact, aerial bombardment stirred considerable controversy, including attempts to ban military aircraft or aerial bombardment or adopt definitive rules in the late 1920's and 1930's. For discussion see Spaight, supra note 3, at 244; Stone, supra note 3, at 624.

Post World War II practice is illustrated by the following:

a. "The air activity of the United Nations forces in Korea has been, and is, directed solely at military targets of the invader. These targets are enemy troop concentrations, supply dumps, war plants and communication lines. It is well known that the communist command has compelled helpless civilians to labour on these military sites. Peaceful villages are used to cover the tanks of the invading Army. Civilian dress is used to disguise soldiers of aggression." The United Nations air forces in fact exerted particular care to confine their attacks in Korea to military objectives. Statement, Secretary of State Acheson, September 6, 1950, quoted in 10 Whiteman, Digest of International Law 140 (1968) [herein Whiteman].

b. Radio program to North Korea: "Remember, we are asking you please to (sic) leave any areas in North Korea where there are military targets, because the bombers will be back again and again.

The United Nations planes have no desire to harm individuals who are not engaged in war work at military targets. Military targets are: railroads and railroad facilities, docks and harbours, bridges, power plants, factories helping the war, ships and boats, air fields and supply warehouses.

If you work and live near any of these areas, get out now before it is too late. Refuse to endanger your lives." 10 Whiteman 140.

c. US Secretary of Defense (McNamara) June 16, 1962, "The U.S. has come to the conclusion that to the extent feasible, basic military strategy in a possible general nuclear war should be approached in much the same way that more conventional military operations have been regarded in the past. That is to say, principal military objectives should be the destruction of the enemy's military forces, not of his civilian population." 10 Whiteman 149.

d. "Resistance was encountered, but operations appear to be proceeding as planned, although no very detailed report of their progress is yet available. Repeated warnings have been given to the civilian population of Port Said to keep away from defined areas of danger. During Sunday air attacks continued. They were, as before, entirely restricted to military targets." A Statement by the British Minister of Defense (The Earl of Gosford) on November 5, 1956, during the Suez crisis, quoted in 10 Whiteman 425. See also 10 Whiteman 426-430 for various statements related to North Vietnam bombing.

e. In the Arab-Israel conflict of October 1973, the International Committee of the Red Cross (ICRC) attempted to obtain the agreement of belligerents to apply the 1973 ICRC Draft Protocol to the conflict. Syria, Iraq and Egypt accepted, but on October 19, 1973 the government of Israel's reply was construed not to be an acceptance. It did note "In response to the ICRC Appeal the Government of Israel notes it has strictly respected and will continue so to respect the provisions of public international law which prohibits attacks on civilians and civilian objects." ICRC Press Releases No. 11716 (Oct 11, 1973) and No. 11766 (Oct 20, 1973). 15 See footnote 23, infra.

16 For example, see ICRC, Draft Rules For the Limitation of the Dangers incurred by the Civilian Population in Time of War, Sept 1956; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, 249 UNTS 215 (US is signatory but has not ratified, hence not in force for US). Discussion is found in Bailey, Prohibitions and Restraints in War (1972); Carnegie Endowment, Conferences on Contemporary Problems of International Law, The Law of Armed Conflicts (1971); Schwarzenberger, "From the Law of War to the Law of Armed Conflict," in International Law and Order 169 (1971); Kunz,

"The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision," 45 Am. J. Int'l. L. 37 (1951). For Administration views before Congress, see "International Protection of Human Rights," Hearings Before the Subcommittee on International Organizations and Movements, Committee Print, May 1974, at 100. See also 1971 Proceedings, Am. Soc. Int'l. L., at 218 (1971).

17 The ICRC, the International Committee of the Red Cross, is an organization separate from the League of Red Cross Societies and was primarily responsible for the 1949 Geneva Conventions for the Protection of War Victims. The ICRC held conferences of Government Experts in 1971, 1972 and 1973, to prepare for the Diplomatic Conference now considering the issues, which met in 1974, 1975, and again in 1976. For discussion, see paragraph 11-2, this publication; Forsythe, "The 1974 Diplomatic Conference on Humanitarian Law: Some Observations," 69 Am. J. Int'l. L. 77 (1975); Miles, "Current Initiatives in the Laws of Armed Conflict," 16 AFLR 69 (Winter 1974).

18 Rovine, "Contemporary Practice of the United States Relating to International Law," 67 Am. J. Int'l. L. 118, 122-125 (1973) (quoting DOD, General Counsel, Letter to the effect that Resolution 2444 is "declaratory of existing customary international law.") The initial draft of that resolution included a fourth principle "that the general principles of the law of war apply to nuclear and similar weapons." The Soviet delegation moved to delete this fourth principle on the ground that it did not conform to earlier UN resolutions condemning nuclear weapons. The US opposed the Soviet amendment. The US Representative, Mrs. Jean Picker, stated on 10 December 1968.

The four principles set out in the resolution constitute a reaffirmation of existing international law . . .

(3) There are indeed principles of law relative to the use of weapons in warfare, and these principles apply as well to the use of nuclear and similar weapons. The United States believes that the above principles are statements of existing international law on this subject.

At the conclusion the sponsors of the resolution accepted the Soviet amendment, but only on the understanding that the remaining principles were applicable in all armed conflict regardless of their nature or the kinds of weapons used.

19 This resolution provided, inter alia,

**1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.

2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in hostilities and civilian populations.

3. In the conduct of military operations every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be made to avoid injury, loss or damage to civilian populations." G.A. Res. 2675 (XXV), Resolution On Protection of Civilians, found in 1 The Law of War 755 (Friedman ed. 1972).

20 Report on Human Rights in Armed Conflict, Report of Secretary General, 20 Nov 1969, A/7720; 18 Sept. 1970, A8052 [excerpted in Friedman supra note 19, at 701 and 732]; 5 September 1975, A10195; 21 October 1975, A10195 Corr. 1.

21 The immunity of the civilian population or individual civilians not taking a direct part in hostilities has long been a cornerstone of the law of armed conflict and of conventions regulating hostilities. On historic development, see Vattel, The Law of Nations, bk. III, sec. 145-147 (1817); Wheaton, Elements of International Law 394-395 (3rd ed. 1846); Lieber Code, Instructions For The Government of Armies of the United States In The Field by Order of The Secretary of War, Art 15, reprinted in 1 Friedman, supra note 19, at 161. It applies also to all forms of armed conflict including aerial bombardment. Lauterpacht, supra note 3, at 24; Spaight, supra note 3, at 43-48; Stone, supra note 3, at 623; Mc Dougal and Feliciano, Law and Minimum World Public Order 640 (1961); Petrowski, "Law and the Conduct of the Vietnam War," in 2 Am. Soc. Int'l. L., The Vietnam War and International Law 438 (1969); Hearings, supra note 16; and Rovine, supra note 18. Article 28, GC, reflects the prohibition against using civilians to render areas immune from military operations.

22 The key factor in the definition is the military advantage secured from the attack. For development of the military objective test, a fundamental doctrine of air power, see Royse, Aerial Bombardment 192 (1928); Spaight, supra note 3, at 220, 269 (1947); US Naval War college, 1955 International Law Studies 147 (Tucker ed. 1957). The military objective test is implicit in Hague IX, which does not prohibit certain types of naval bombardments even against undefended towns, in the 1923 Draft Hague Rules, and in the 1949 Geneva Conventions (for example, "In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives." Art 18, GC.). Also of interest is Greenspan, The Modern Law of Land Warfare 333-334 (1959); Greenspan, Soldier's Guide to the Law of War 5 (1969); Kelsen, Principles of International Law 122 (Tucker ed. 1970); 10 Whiteman 144, 441-442 (1968); Adler, "Targets in War, Legal Considerations,' 8 Houston L. Rev. 15 (1970). Military objective test and World War I; DeSaussure, "The Laws of Aerial Warfare: Are There Any?" 5 Int'l.