1-1. Scope of Publication:

a. General Scope. This publication covers the law of armed conflict' applicable to air operations. Other matters of relevance to the Air Force, such as obligations toward civilians in occupied areas, air law and law of the sea are also surveyed. Legal-political matters, such as neutrality, are examined as they may affect aerial operations. As the law of armed conflict is often indivisible, whether applicable to land, sea or air operations, some generally applied legal rules and principles are discussed where appropriate. The subject matter of this publication is organized in chapters dealing separately with the legal status of aircraft and air space, the status of combatants, air to air and air to sea operations, aerial bombardment, weapons, uniforms and marking, perfidy, independent missions and enforcement measures. The 1949 Geneva Conventions Relative to The Protection of War Victims are surveyed in separate chapters, as are state responsibility and criminal responsibility.

The international law of armed conflict is constantly developing, as diplomatic conferences meet and as the nations of the world, individually or collectively, through such bodies as the United Nations, take action in specific disputes. This publication concentrates on current law and not possible prospective law.

b. Reason for Separate Publication:

(1) Historical Development. Much of the law of armed conflict was codified in the 1899 and 1907 Hague Peace Conferences, before air power had become a significant factor in warfare. Nevertheless, those conferences clearly intended that aerial warfare be covered by law, and some provisions of the resulting treaties dealt specifically with aerial operations. Extensive efforts were made in 1923 to adopt a Code of Laws specifically applicable only to air warfare;

however, the 1923 Draft Hague Rules of Aerial Warfare were never formally adopted by states. No convention applicable solely to aerial operations has since been prepared, although other conventions have included specific references to aspects of war in the air, such as protection for military medical aircraft in the 1949 Geneva Conventions for the Protection of War Victims. During the 20th century new principles and concepts have arisen to govern all armed conflict including that applicable to air warfare. Nevertheless, the law affecting aerial operations cannot be understood without some concurrent references to the law applicable to land and sea environments.

(2) General Principles. The principles of the law of armed conflict are the same in land, sea or air warfare. However, there are differences in particulars when applied. 3 For example, the 1949 Geneva Conventions recognize different applications in land, air, and sea environments. Yet, the Conventions establish and confirm rules and principles applicable to all environments in which armed conflict might occur. In short, there are common principles in the law of armed conflict but differences in application.

1-2. The Law of Armed Conflict: Its Context.

a. Scope of Chapter. This chapter discusses sources, explains terms, and evaluates the significance of the law of armed conflict. It addresses questions frequently asked. What is international law? What is the law of armed conflict? Why is there a law of armed conflict? Why is this law important for the US, DOD, and the individual serviceman? What are the basic principles of this law? When is the law applicable?

the use of armed force to achieve its aims. It may also embrace conflict between a state and organized, disciplined and uniformed groups within the state such as organized resistance movements.

attacks acts of violence committed against an adversary whether in defense or offense.

belligerent a state or other entity engaging in armed conflict, also combatants in some contexts.

civilian-any person other than one of the categories of persons referred to in Article 4 A(1), (2), (3), and (6), GPW.4 Civilians have general immunity from being the object of attack if not taking a direct part in hostilities.

combatant-a direct participant in an armed conflict, traditionally a member of an armed force as specified in Article 4A(1) (2) and (3), GPW.

convention a multilateral treaty.

Geneva Conventions of 1949-Four separate Conventions protecting the wounded and sick (GWS), wounded and sick at sea (GWS-SEA), prisoners of war (GPW) and civilians (GC). These are reprinted in AFP 110-20.

Hague Conventions and Regulations— various Conventions and rules adopted by international Diplomatic Conferences at The Hague in 1899 and 1907. These are reprinted in AFP 110-20.

hors de combat-a combatant who, having laid down his arms, no longer has any means of defense or has surrendered. These conditions are fulfilled by an adversary who abstains from any hostile act, is not attempting to escape, and who is unable to express himself or clearly expresses an intention to surrender.

law of war-see law of armed conflict. law of armed conflict-the international law regulating the conduct of states and combatants engaged in armed hostilities, often termed law of war.

reprisal an act, otherwise unlawful under the international law regulating armed conflict, utilized for the purpose of coercing an adversary to stop violating the recognized rules of armed conflict. (See chapter 10 for analysis.)

c. International Law. 5

(1) Definition. International law, as opposed to municipal law, may seem to be without definition, precision or authority. However, civilized nations have in practice made and observed rules in their relations with one another. It has been termed the law of nations. Among the most descriptive definitions of international law is that by Hackworth.

International law. . . is a system of jurisprudence which, for the most part, has evolved out of the experiences and the necessities of situations that have arisen from time to time. It has developed with the progress of civilization and with the increasing realization by nations that their relations inter se, if not their existence, must be governed by and dependent upon rules of law fairly certain and generally reasonable. Whether international law is law in a strictly legal or Austinian sense, depends upon the meaning attributed to the word law. Although international law is readily distinguishable in many respects from domestic law, it is nonetheless a system of law possessing certain characteristics peculiar to itself as well as certain others common to municipal law. 6

Another useful definition is set forth by Whiteman.

International law is the standard of conduct, at a given time, for states and other entities subject thereto. It comprises the rights, privileges, powers, and immunities of states and entities invoking its provisions, as well as the correlative fundamental duties, absence of rights, liabilities and disabilities. International law is, more or less, in a continual state of change and development."

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(2) Sources of International Law. The varied sources of international law include

treaties, such as multilateral conventions, the practice of states reflected as custom, and general principles. Decisions of national and international courts and tribunals and writings of qualified authorities are subsidiary sources of international law. 9 International law, like domestic law, is the product of a political process. Thus the law changes and develops as internationally accepted standards of conduct change. 10 An excellent discussion is provided by Whiteman:

"International law is based largely on custom, e.g., on practice, and whereas certain customs are recognized as obligatory, others are in retrogression and are recognized as nonobligatory, depending upon the subject matter and its status at a particular time.

"Over varying periods of time certain international practices have been found to be reasonable and wise in the conduct of foreign relations, in considerable measure the result of a balancing of interests. Such practices have attained the stature of accepted principles or norms and are recognized as international law or practice. Accordingly, there are in the field of international law, public and private, certain wellrecognized principles or norms.

"The recognized customs prevailing between states and other subjects of international law are reflected not only in international practice per se but also in international treaties and agreements, in the general principles of law recognized by states, in judicial and arbitral decisions, and in the works of qualified scholars. Based largely on custom, thus reflected and recognized, international law is, to considerable extent, unwritten in form and uncodified.

"International law is evidenced by international agreement, by international custom or practice, and by the general norms of civilization. As evidence of such agreements, custom or practice, and norms, resort may appropriately be had to treaties and agreements and, secondarily, to their subsequent interpretation and application; to the practice and custom of states and other entities subjects of international law, as set forth in

primary sources and, secondarily, as reported elsewhere; and to accepted standards as revealed in agreements or in practice or in authoritative pronouncements. Decisions of international judicial tribunals and international arbitral bodies, depending upon their competence, constitute an important evidentiary source of international law. Decisions of local courts and tribunals bearing upon aspects of international law or international custom or practice may, according to their competence, also be resorted to for evidence of international law. The teachings of universities and the writings of publicists may constitute a secondary source of evidence as to the standard of conduct properly denominated international law, depending upon their merit." 11

(3) International Law as a System. 12 International law as a legal system differs in many substantial respects from domestic legal systems. One primary difference is the lack of a central enforcement authority equipped to resolve disputes similar to the domestic enforcement mechanisms of states. Instead, states are expected to enforce international law themselves although some centralized institutions exist. 13 Another difference is that the subjects of international law are primarily states rather than persons. A third major difference is the sources of law. Domestic law is frequently derived from an acknowledged superior legislative or executive competence. International law derives its basis primarily from state practice and state consent represented in the form of treaties, custom or general principles of law acknowledged by all states or by all principal legal systems. Domestic law is often precise particularly when enacted by legislatures or adjudicated by courts over an extended period of time. 14 The methodology, substance, sources, subjects and enforcement mechanisms of international law thus vary substantially from domestic law.

Yet nations have many of the same reasons to obey international law as individuals do to follow domestic law. 15 Positive benefits include foreseeability, reciprocity, approbation and efficiency. Foreseeability

refers to a nation's ability to expect that certain behavior will or will not occur. Reciprocity is an adjunct of illegal behavior-if one nation breaks the rules it might expect that others will reciprocate. Approbation refers to pressures from other states or from a state's own population. Efficiency refers to the fact that failures to observe and follow the law frequently cost more in economic resources than observance. 16 Within the context of the international law of armed conflict, there are certain pressures for observance which are examined in depth elsewhere 17 as well as certain measures which a state may use to enforce the law. 18 The Air Force view on international law is expressed in the following:

(W)hile it is easy to perceive the shortcomings of a system of law that frequently relies on the coercive power of individual states or groups of states for its execution, we also need to recognize the inestimable value of international law, which introduces norms of behavior and establishes identifiable parameters of acceptable actions; and we must continue to strive to substitute the rule of law for the rule of force in international relations. As Thomas Baty, a well known publicist, noted in 1954 (International Law in Twilight), 'International law is the last stronghold of true law' since its permanence is 'based on a general consciousness of stringent and permanent obligation.' This is, indeed, a major consideration. International law is not promulgated by decree, but, rather, by reasoned consent and cooperation. This,' he states, 'is its outstanding merit.'

We in the Air Force constantly benefit from the existence of international law, are sensitive to its changes, and contribute to its formulation in many functional areas. Above all, we actively support it in the hope that it will lead mankind to a peaceful world. 19

d. Law of Armed Conflict:

(1) Explained. The law of armed conflict is a part of the international law primarily governing relationships between

states. 20 The term refers to principles and rules regulating the conduct of armed hostilities between states. Traditionally known as the law of war, the term "law of armed conflict" is preferred. Since World War II, states have avoided formal declarations of war. Recent multilateral conventions, notably the 1949 Geneva Conventions, refer to armed conflict rather than war. 21 International law regulating armed conflict applies if there is in fact an international armed conflict. 22 It may also apply to armed conflicts that traditionally have not been viewed as "international" but which clearly involve the peace and security of the international community. 23

(2) Related topics. International law includes many areas of interest to the Air Force other than the law of armed conflict. Such topics include the law of the sea and aviation law which are surveyed in chapter 2. Other topics which are relevant include the international law affecting forces overseas, e.g., base rights agreements and status of forces agreements. However, these are beyond the scope of this publication.

(3) Equal Application. 24 The law of armed conflict applies equally to all parties to an armed conflict, whether or not the international community regards any participant as the "aggressor" or "victim". Its application is not conditioned by the causes of the conflict. This principle is vitally necessary. Events since World War II have demonstrated that it is frequently impossible to obtain international consensus on the reasons for a particular conflict. Obtaining agreement on who is the aggressor and who is the victim is even more difficult. Thus, the issues of whether aggression has been committed, and if so, by whom, and determining the consequences resulting from aggression are independent of the equal application of the law of armed conflict to the conduct of the conflict.

The individual victims of conflict, notably civilians, PWs, and wounded, sick and shipwrecked are the beneficiaries of much of the law of armed conflict. Indeed all military members of nations involved in armed con