Aerial Warfare in Domestic Conflicts – Legal and Ethical Parameters

| by Dr. Ruwantissa Abeyratne
( January 4, 2013, Montreal, Sri Lanka Guardian) As this article was being written, it was reported that fighters in Syria battled to seize an air base in northern Syria,  which was clearly part of a campaign to fight back against the air power that has given President Bashar al Assad’s forces free rein to bomb fighter-held towns. Fighters have been besieging air bases across the north of Syria  in recent weeks, in the hope this will reduce the government’s power to carry out air strikes and resupply loyalist-held areas.  Simultaneously, fierce fighting went on near the international airport in Aleppo, compelling authorities to close the airport to civilian traffic. Flights from Egypt, which were to touch down in Aleppo on their way to Damascus, by passed Aleppo.  At the core of this issue is the daunting power of aerial bombings on those on the ground, which is a terrifying phenomenon that has repeatedly demonstrated its devastative force, from Hiroshima and Nagasaki during World War 2 to Desert Storm in 1990 to the damage caused to the Libyan Air Force by NATO aircraft and artillery during the Arab Spring.
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Two facts emerge from this long standing trend:  airpower is the tool to win a war by hook or by crook; and without an airfield, that air power is impotent.  At the core of this unsettling situation is the strategic value of an airport, which, if it falls into the hands of ground fighters, would almost guarantee them victory over minority government forces.

Airpower as  a Weapon of Warfare
In modern warfare, aerial bombardment is the most effective means of attack since, although  land and water military vehicles are capable of destroying enemy targets, military aircraft are most often the first choice for use because of the speed and accuracy in which they can reach the target.  Aerial targeting has always been an issue of controversy.  The first instance of legislation against this threat was at the Hague Peace Conference in 1899 which peremptorily prohibited the dropping of bombs from balloons.
There are three fundamental tenets of aerial targeting.  Firstly, there must be a military necessity for the use of force against a target; secondly, the use of force employed on a target must be proportional; to the military value of the target, and finally, the act of military bombardment must be consistent with principles of humanitarian law and unnecessary suffering must be prevented as a result of the bombardment. The first principle is important in that any aerial attack must have a military objective.  In this sense it is arguable whether an attack on a power station which provides electricity to a civilian population has a military objective.  It is also a recognized principle of military warfare that an aerial attack, which is justified on the abovementioned grounds cannot be impugned simply because of an attendant risk of incidental injury or collateral damage.
A military objective, for the purpose of an aerial attack are primarily enemy combatants or places or installations that by their nature, location and purpose make an effective contribution to military action directed against combatants who may be prompted to use aerial targeting. The targeting of an installation by military attack should result in a definite military advantage to the initiator of the aerial offensive. Some examples of military objectives are military aircraft and airfields, weapons, armour, artillery, warships, military headquarters, military fuel storage areas and any installation used to conduct or assist in military operations.
The inherent danger of aerial targeting is that air strikes invariably portend damage to third parties on the ground, whether or not the attackers would deliberately target civilians (which is rare in modern warfare). Aerial attacks, however well planned they might be in accordance with the ethics of military warfare, inevitably involve the  law of unidentified consequences (collateral damage).  There have  been many instances in  human conflict where civilians and their property have been destroyed by explosives deployed from aircraft.  It is well known that during World War II, the number of civilian deaths outnumbered military deaths by 16 million (not including the Holocaust victims).
The law pertaining to warfare encompasses two  fundamental tenets of international humanitarian law.  They pertain to  civilian immunity and the principle of distinction.  Collectively, they impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former.
Under any circumstances, international law prohibits the carrying out of direct attacks against civilians; as to do so intentionally is a war crime. The parties to a conflict are also required to refrain from threats or acts of violence, the primary purpose of which is to terrorize the civilian population. They are prohibited from attacking  the civilian population or civilians by way of reprisals. International humanitarian law also makes direct attacks against civilians and civilian objects a crime. Indiscriminate attacks are those that are not directed against a military objective; those that employ a method or means of combat that cannot be directed at a specific military objective; or those that employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.  In each such case, these attacks are of a nature to strike military objectives and civilians or civilian objects without distinction.
Strategic Value of the Airport
Ironically, in desperate situations, it is the airport that has brought solace to those in need of assistance. On July 27, 2011, the flight bringing first aid to famine stricken Somalia landed in Mogadishu carried 10 tonnes of plumpy nuts – enough to offer 3500 children suffering from starvation a respite from death.  According to the Economist, famine is declared when 30% of the children are actually malnourished, 20% of the population is without food and deaths are running at 10,000 adults or four per 10,000 children every day.
On Tuesday 12 January 2010, at 16.53 local time, an earthquake with a magnitude of 7.0 Mw on the Richter scale hit Haiti at a depth of 13 kilometers.  Its epicenter was near Leogane, which was approximately 25 Kilometers or 16 miles west of the country’s capital Port-au-Prince.  The International Red Cross estimated the people affected by the earthquake at around 3 million.  It was estimated that around 100,000 to 200,000 people would have perished as a result of the catastrophe.
The quake damaged many important buildings including the Presidential Palace, The National Assembly and the Cathedral of Port-au-Prince.  The headquarters of the United Nations Stabilization Mission in the city collapsed killing many UN workers including the Chief of Mission. The disaster also caused severe damage to communication systems, air, land, and sea transport facilities, hospitals, and electrical networks, drastically hampering rescue and aid efforts.
Many countries responded to appeals for humanitarian aid, pledging funds and dispatching rescue and medical teams, engineers and support personnel. Communication systems, air, land, and sea transport facilities, hospitals, and electrical networks had been damaged by the earthquake, which hampered rescue and aid efforts.  From an aeronautical perspective,  there was considerable confusion over who was in charge of the relief efforts and of flights in and out of Haiti, and the problem was compounded by air traffic congestion and problems with prioritization of flights which in turn hampered relief work. Several nations that pitched in with relief in the early aftermath of the disaster may not have pondered the legalities concerned with entering the airspace over Haiti or landing therein.  This would doubtless have provoked some members of the legal profession to question issues of sovereignty and legal rights of Haiti in this instance.
At the end of the day, the question for resolution is “what is the purpose of an airport”.  The answer is simple.  An airport is a conduit that connects the world in peace and friendship and provides  facilities to aircraft  that bring in necessities for the people of a country as well as connects people of the world.. President Roosevelt, when he invited States to Chicago for an international conference in 1944 said in his letter of invitation
“I do not believe that the world today can afford to wait several years for its air communications.  There is no reason why it should. Increasingly, the aeroplanes will be in existence.  When either the German or Japanese enemy is defeated, transport planes should be available for release from military work in  numbers sufficient to make a beginning.  When both enemies have been defeated, they should be available in quantity.  Every country has its airports and trained pilots; practically every country knows how to organize airlines.
You are fortunate to have before you one of the great lessons of history.  Some centuries ago, an attempt was made to build great empires based on domination of great sea areas.  The lords of these areas tried to close the areas to some, and to offer access to others, and thereby to enrich themselves and extend their power.  This led directly to a number of wars both in the Eastern and Western Hemispheres.  We do not need to make that mistake again.  I hope you will not dally with the thought of creating great blocs of closed air, thereby tracing in the sky the conditions of future wars.  I know you will see to it that the air which God gave everyone shall not become the means of domination over anyone”
This is the most fundamental truth – that air power and aerodromes must not be used to dominate others, but to provide connectivity and mutual assistance.  Unfortunately, circumstances have compelled us to see things upside down.
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Author: Sri Lanka Guardian

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