The Applicability of the Laws of Land Warfare to U.S. Amy Aviation

• Author: Captain Steven P. Gibb
• Pages: 02

I. INTRODUCTION

Article 1 of the 1907 HagueConventionRespecting theLaws and Customs of War on Land, to which the United States is a high contracting party, requires that "The Contracting Powers shall issue instructions totheirannedlandforceswhich shall beinconformity with the Regulations respecting the Laws and Customs of War on Land. . . ."'Therearetwopossibleinterpretationsofthisrequire.ment. The fust is that it requires that any instructions or orders given to troops must be in conformity with the law ofland warfare. The second interpretation is that the troops must be instructed an the subject of the law of land warfare. Regardless of the proper in. terpretation, it is not possible to comply fully with Article 1 of the Hague Convention of 1901 unless certain questions can be answered.

This article is primarily concerned with the following question: Are the existing customary and codified rules of land warfare suf. ficient to regulate the conduct of combat operations of Army Avia. tion forces? Significant issues subsumed by this larger question in. elude whether a policy or theoretical basis exists that would justify any deviation from the principles underlying the law of land war. fare when formulating doctrine or drafting rules for air combat;

Uni-

versity of Southern California Member afthe Bars ofthe Stateof0hioandtheU.S.

Court of Mihtari Appeals From 1969 ta 1970 the authoreemed aaacombatanator in Southeast Asia and from 1970 u, 1972 flew bardel m~ssmns 10 the Federsl Repvblie of Germany.

' HaweConventionNo IVRPspectmg theLaws sndCuatomsafWaronLand,Od.16, 1907. art. 1. 36 Stat 2217, TS.

Na 539.

**JAGC.

U.S. Army B S I 1968, J D , 1975. Ohm State Unweraity: M.S ,1972,

MILITARY L A I REVIEW [VOI. 73

whether air warfare poses any unique problems in the application or enforcement of standards inherent in the principles underlsing the law of land warfare; and whether the practice of states, with respect to air warfare, has established customary law in air warfare inconsistent with the rules of land warfare.

These issues will be analyzed in the following manner. First. a brief statement about the purposes and sources of the law of war is necessary to provide basic assumptions and definitions for this inquiry. The body of this article will then be devoted to an analysis of justifications given for separate or different rules and standards for air warfare. Although an attempt will be made to deal separate. ly with justifications which stem from different theoretical bases, from practical problems ofapplication and enforcement or from the practice of states, frequently these justifications involve a mixture of concepts. Finally, the article will present conclusions concerning haw the United States Army should respond to the fact that a substantialportian ofits combat operationsseemsnottobecoveredby its manual on the law of land warfare.

1. PAST ARMY POLICY

   ThepolicyoftheUnited Statee Army, atleest since the Civil War, has clearly recognized that the law of land warfare is legally binding on the operations of U.S. forces. The famous Lieber Code was promulgated in 1863 as General Order No. 100, entitled "Instructions for the Government of the Armies of the United States in the Field."* This code was one of the first efforts to draft a system of specific ales of conduct for the soldier in the field that embodied the existing customary law of war. The Lieber Code was widely ad. mired by European scholars and was partially integrated into the Hague Conventions of 1899 and 1901.5 Spaight, one of the earliest English writere on the law of aerial war, commented in 1911:

   elevated and humane I B. PRESENT ARMY DOCTRINE

   Mare recently, other instructions on the law ofland warfare have been drafted and issued to field commanders. The current United

   States Army statement of the rules which comprise the law of land warfare is contained in a field manual entitled The Law of Land Warfare.5

   The Manual was drafted and issued a relatively short time aher the US. Army Air Corps was separated from the Army to become the US. Air Force. Consequently, the Manual statee:

   Althouaheertainof thelesalmineides setforth hereinhaveaooiicationra warfar; ~n the sir .a &I1 & to hoatllities on land. {hie Manuai otherwise concerns itself wlth the mles peculiar to. . anal warfare onlyto the extent that snch d e s have some direct bearing on the aetimties ofland forceIt is difficult to conceive of a more ambiguous statement regarding the relationship of the law of land warfare to aerial warfare. It is likely that the Army intentionally avoided a clear and definitive formulation of this relationship in order to forestall doctrinal disputes with the Air Force. Moreover. the small number of aircraft operated by the Army in the early 1960's probably did not seem to present a substantial legal problem for those persons concerned with insuring the Army's adherence to the law of war.

3. RECENT GROWTH OF ARMY AVIATIONAfter the creation of the United Stetes Air Force, the Army ofthe 1950's kept only a few small aircraft which were to be used mainlyfor medical evacuation of combat casualties and the adjustment of artillery fire by aerial observers. The Manual's avoidance of corn menton aerialwarfaredidnatanticipatethelatergrowth ofunited States Army aviation. By 1975 the United States Army operated9,469 aircraft of various types, a number which approaches the total number of aircraft held by its sister service, the UnitedstatesAir Force.' Casualty statistics during theVietnam war are another measure of the growth of aviation in the Army. By the end of 1971 the Army had suffered 2,226 air related deaths, while the Air Force hadsuffered 746, theNavy 217andtheMarineCorps586.~Itseemsclear that the extent of the Army's concern with aviation operations has radically changed since Field Manual 27-10 WBS

   issued.

   j

   bereinafter cried BJ Manual in text and FM 27-10 m footnotes1

   US DEFT OF Anhlr. FIELD MAhUAL N O 27-10.

   THE hw

   OF I*ND

   S~RIARE

   (1956)

4. THE PROBLEM: THE TREATMENT OF AERIAL WARFARE IN FM 27-10

   Onemight arguethat therereally isnosubstantial legal problem for Army Aviation because the Manual does concern itself with the rules of aerial warfare "to the extent that such rules have Some direct bearing on the activities of land There are several difficulties with this argument.

   First,itbegathequestion astowhethertherules of aerialwarfare are somehow different from those which apply to land combat. If there m e differences, do they lie in the formulation of the rules or in the application of the rules, or are the rules based on different underlying standards? The Manual's only specific reference to a subject that would generally be thought of as aerial warfare is where it states that there "is no prohibition of general application against bombardment from theairofcombatanttroops,defended places.or other legitimate military objectives."'0

   Second, the Manual's approach becomes doubly confusing whena brief review of literature on air warfare reveals the existence of wholly contradictory opinions. For example, shortly after the closeof World WarI1,thechiefofthewartimeBritishBomberCommandconcluded "In the matter of the use of aircraft in war, there is, it so happens, no international law at all."" This view stands in direct opposition to the new that althoughthe determination of what in specific conteita may leglfmately be regarded ab B mililaly objecfi\,e involves some difficulties 811 warfarewould not amem to present any unwue ~srues. the P Y ~ D D ~ and lewl of

   desmetmn obtained are of prime imponanceto legal pollci , notthe modali ty of dehuew A

   Third, manyaftheoperationsor activities ofunited States Army aviation elemente no longer fit in the original concept that they be "directly related to the activities of land forces." A few of the tasksthat Army airmaft elements are capable of performing and have performed thatarenomore"direct1y related to theactivities of land forces" than the ordinary combat operations of the Air Force include: 1. Firing missiles and other air launched munitions at targets of

   19761 LAWS OF WARFARE

   opportunity discovered during reconnaissance flights over hostile areas; 2. Adjusting the impact of close air support munitions, ground launched missiles, artillery fire and naval gunfire by direct observation from the air; 3. Gathering radar, infrered and photographic data to he used for bombardment of targets located at great distances from friendly ground farces;

   4. Rescue of dawned air crew members from hostile areas; 5. Plotting the location ofradio transmitting sites for intelligence assessments and possible destmction by aerial bombardmen6 6. Providing transportation for cargo and personnel in the com hat zone.

   With the exception of maintaining air superiority over the combat zone,'J it is difficult to see a substantive legal difference in the nature of the air related tasks performed by the United States Air Force and the United States Army. The differences that exist are ones of degree rather than kind.

   Fourth, even if the position of the United States Amy were clarified by a declaration that those activities of aviation that are directly related to the activities of land forces are governed by the law of land warfare as it appears in the Manual and those aviation activities that are not directly related to the activities of land forces are governed by the laws of air warfare, Army air crewmen would still be without clear guidance. While some activities would clearly fall in the "directly related to" or in the "not directly related to" category, many Army aviation missions would not be so clearly categorized, particularly where a single mission includes different kinds of activities.

   Fifth, assuming the doubtful proposition that a rational distinc. tioncan bedrawnon thehasisofwhetheraparticularactivityisin. clu&d within the ambit of the Manual's language "have some dired bearing on the activities of land forces," those...