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AIR FORCE PAMPHLET 14- 210 Intelligence
1 FEBRUARY 1998
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A4.2. General Restrictions on Air Bombardment: The Immunity of Civilians. A4.2.1. Protection of the Civilian Population and Civilian Objects. The civilian population as such, as well as individual civilians, may not be made the object of attack. Acts of violence intended primarily to spread terror among the civilian population are prohibited. Neither may civilian property that is not a military objective be the object of attack.
A4.2.1.1. Non- participation in Hostilities . Civilian immunity carries with a strict obligation on the part of civilians not to take a direct part in hostilities-- they must not become combatants. Tak-ing a direct part in hostilities means engaging in acts of war directed toward enemy personnel or materiel. Civilians who take part in fighting (whether singly or as a member of a group) become combatants and lose their personal immunity.
A4.2.1.2. Requirement to Distinguish . The requirement to distinguish between combatants and civilians and between military objectives and civilian objects imposes obligations on all the parties to a conflict. This is true whatever the legal status of the territory on or over which combat occurs. For example, civilians may not be used in an attempt to render an area immune from mil-itary operations. Also, civilians may not be used to shield a defensive position, to hide military objectives, or to screen an attack. Neither may they be forced to leave their homes or shelters in order to disrupt the movement of an adversary.
A4.2.2. Military Objectives. Military attacks must be directed only against military objectives. Mil-itary objectives are those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization in the circumstances offers a definite military advantage.
A4.2. 2.1. Many objects are clearly military objectives -- for example, the enemy's military encampments or armament (such as military aircraft, tanks, antiaircraft emplacements, and troops in the field). Factories, workshops, and plants that directly support the needs of the enemy's armed forces are also generally conceded to be legitimate military objectives.
A4.2.2.2. Controversy exists over whether, and under what circumstances, other objects such as civilian transportation and communications systems, dams, and dikes can properly be classified as military objectives. Modern transportation and communications systems are deemed military objectives because they are used heavily for military purposes in intense conflicts.
A4.2.2.3. However, the inherent nature of an object is not controlling. Even a traditionally civil-ian object (such as a civilian house) can be a military objective when it is occupied and used by military forces during an armed engagement. The key factor is whether the object makes an effec- 147
A4.3. Precautions in Attack. Only a military objective is a lawful object of attack. Therefore, constant care must be taken when conducting military operations to spare nonmilitary objects and persons, and positive steps must be taken to avoid or minimize any civilian casualties or damage. The principle of pro-portionality must always be followed, which prohibits an attack when the expected collateral civilian casualties or damage to civilian objects is excessive or disproportionate to the military advantage antici-pated by the attack.
A4.3.1. Types of Precautions. The extent of danger to the civilian population varies with the type of military objective attacked, the type of terrain, the type of weapons used, the kind of weather, and whether civilians are nearby. It also depends on the combatant's ability and mastery of bombardment techniques, the level of the conflict, and the type of resistance encountered during the attack. There-fore the following steps must be taken:
A4.3.1.1. Identification of Military Objectives . Initially, those who plan or decide upon an attack must do everything feasible under the specific circumstances at the time to ensure military objectives, and not civilians or civilian objects, are in fact being attacked. Sound target intelli-gence enhances military effectiveness by showing that the risks undertaken are militarily worth-while.
A4.3.1.2. Incidental Civilian Casualties Must Be Minimized . Attacks are not prohibited against military objectives even though they may cause incidental injury or damage to civilians. In spite of precautions, such incidental casualties are inevitable during armed conflict.
A4.3.1.3. Cancellation or Suspense of Attacks in Case of Mistake . Target intelligence may be found to be faulty before an attack is started or completed. If it is apparent that a given target is not a military objective, or that the target is under the special protection of international law, the attack must be canceled or suspended. An example of such special protection would be a hospital protected under the 1949 Geneva Conventions.
A4.3.1.4. Warning Requirement . Under the Hague Regulations, a warning must be given prior to bombardment, when circumstances permit, to permit the civilian population an opportunity to avoid injury. The "Hague Rules", written at the Hague Peace Conference of 1907, deal largely with how to fight an enemy who is in the field, and is still fighting, while the Geneva Conventions 148
A4.3.2. Prohibition of Attack on Undefended Areas. Under the Hague Regulations, towns, vil-lages, dwellings, or buildings that are undefended may not be attacked or bombarded. An undefended place is any inhabited place near, or in, a zone where opposing armed forces are in contact, and which is open for occupation by an adverse party without resistance.
A4.4. Separation of Military Activities. A4. 4.1. International law generally gives civilians "immunity" from attack during armed conflict. However, the parties to a conflict must also take all the precautions practical to protect their own civil-ian population, individual civilians, and civilian objects. For example, they should remove civilians from military objectives and avoid locating military objectives in or near densely populated areas.
A4.4.1.1. Under the 1949 Geneva Conventions, safety zones or demilitarized zones may be cre-ated between the parties of the conflict. Although the creation of such zones is unlikely if past experience is any indication, if created they would be an effective measure to enhance protection of a state's own civilian population.
A4.4.1.2. Under these rules, persons who are combatants are required to wear uniforms, and facil-ities such as hospitals should be clearly marked. Similarly, international law also requires bellig-erents to locate military objectives away from hospitals and not to use civilians to shield military objectives from attack.
A4.4.2. Result of Failure to Separate Military Activities. A state's failure to segregate and sepa-rate its own military activities and to avoid placing military objectives in or near a populated area may greatly weaken protection of its civilian population. Such protection is also compromised when civil-ians take a direct part in hostilities or are used unlawfully in an attempt to shield attacks against mili-tary objectives .
A4.5. Special Protection. In additional to the general rules for protecting civilians and civilian popula-tions, there are specific rules for protecting certain persons and facilities. Under the 1949 Geneva Con-ventions, the following persons and objects must be protected from attack:
A4.5.1. Wounded and Sick, Medical Units and Hospitals, and Medical Means of Transport.
A4.5.3. Prisoner of War (PW) Camps. Prisoners of war may not be the object of attack. They may not be kept in a combat zone or used to render an area immune from military operations. When mili-tary considerations allow it, prisoner of war camps are identified by the letters "PW" or "PG" placed so they are clearly visible from the air. The use of PW camp markings for any other purpose is pro-hibited.
A4.6. Weapons: The Distinction Between an Unlawful Weapon and Unlawful Use of a Weapon. International law may prohibit completely the use of a specific weapon or may prohibit a specific use. A weapon is illegal per se if international law has forbidden its use in all circumstances. Poison as a gas, as a coating on munitions, or as a contaminant of water is an example of such an illegal weapon. However, any weapon may be used unlawfully; for example, firing a rifle at civilians or at combatants who have sur-rendered.
A4.7. General Principles Applicable to Weapons. A4.7.1. Unnecessary Suffering. It is forbidden to employ any method or weapon of warfare which causes superfluous injury or unnecessary suffering. This firmly established rule, incorporated into the Hague Regulations, is a concrete expression of the general principles of proportionality and humanity. All weapons cause suffering. Whether particular weapons or methods of warfare cause unnecessary suffering (and hence are unlawful per se) is best determined by the practice of states. The critical fac-tor is whether the weapon has been designed, or is used, so that it will cause suffering or aggravation of wounds as a separate element in the attack, and not the degree of suffering itself. Treaties banning specific weapons, such as gas and toxin weapons, also give specific content to this principle. The rule against unnecessary suffering also prohibits the infliction of suffering for its own sake, or for mere indulgence in cruelty. International law has condemned the use of expanding bullets against combat-ants and determined that it is illegal per se to use:
A4.7.2. Indiscriminate Weapons. The law of armed conflict also prohibits the use of any weapon that cannot be directed at a military target. However, a weapon is not unlawful simply because its use may cause incidental civilian casualties. An indiscriminate weapon is one that cannot be controlled, through design or function. Some weapons are considered indiscriminate because, although they can be directed at a military objective, they may have otherwise uncontrollable effects that cause dispro-portionate civilian injuries or damage. Biological weapons are an example. 150
A4.8.2. Chemical Weapons. The 1993 Convention on the Prohibition of the Development, Produc-tion, Stockpiling, and Use of Chemical Weapons And on Their Destruction (Chemical Weapons Con-vention), entered into force on 29 April 1997 and bans the use of chemical weapons as a method of warfare. The Chemical Weapons Convention corrects a shortfall in the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, which prohibits the use of chemical weapons in combat, but not their develop-ment, production, stockpiling or transfer.
A4.8.3. Herbicides and Riot Control Agents. US policy on herbicides and riot control agents in war is set forth in an Executive Order: The United States renounces, as a matter of national policy, first use of herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within US bases and installations or around their immediate defensive perimeters and first use of riot control agents in war except in defensive military modes to save lives, such as:
A4.8.4. Poison. Article 23( a) of the Hague Regulations forbids states to employ poison or poisoned weapons. The prohibition against poison is based on its uncontrolled character, on the fact that it is inevitably disabling or fatal, and on the traditional belief that it is treacherous to use poison.
A4.9. Nuclear Weapons. The US does not regard the use of explosive nuclear weapons, whether by air, sea, or land forces, as a violation of existing international law. Nuclear weapons can be directed against military objectives as can conventional weapons. However, the authority of United States forces to employ nuclear weapons resides solely with the President. Moreover, the United States is a party to numerous treaties that regulate the use of nuclear devices. Some examples are the Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, the Outer Space Treaty, and a treaty prohibiting nuclear weapons on the seabed. 151
A4.10.2. Fragmentation Weapons. The use of explosives and fragmentation particles, such as those contained in projectiles, mines, bombs, rockets, missiles, and hand grenades, is not prohibited under the law of armed conflict. Cluster bomb units, a more recent development in warfare, are only a refinement or special type of fragmentation munition.
A4.10.3. Incendiary Weapons. Incendiary weapons, such as incendiary ammunition, flame throw-ers, napalm, and other incendiary agents, have widespread uses in armed conflict. They are clearly regarded as lawful in situations requiring their use. Any controversy over their use arises from a con-cern for the medical problem in treating burn injuries and from arbitrary attempts to analogize their use to the use of prohibited means of chemical warfare. The potential danger of spreading fire has also raised concerns about civilian protection. Their use should be avoided in urban areas, to the extent that other weapons are available and are equally effective.
A4.10.4. Delayed Action Weapons. Air- dropped mines and other delayed action weapons are legal. However, mines are unlawfully used when they are attached as booby traps to any object that is pro-tected under international law, such as to wounded and sick personnel, dead bodies, or medical facili-ties. Also objectionable are portable booby traps, such as fountain pens, watches, and trinkets, that would expose any civilians who might be attracted to the object, to an injury. Mines must not be used to prevent the rescue of wounded and sick persons, or to deny civilians protection. Under the Hague Convention VIII, there are specific treaty restrictions on the use of mines in sea warfare. 152
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