Before and during World War II (1939–1945), international law relating to aerial bombardment rested on the treaties of 1864, 1899, and 1907, which constituted the definition of most of the laws of war at that time – which, despite repeated diplomatic attempts, was not updated in the immediate run-up to World War II. The most relevant of these treaties is the
Hague Convention of 1907 because it was the last treaty ratified before 1939 which specified the laws of war regarding the use of
bombardment. In the Hague Convention of 1907, two treaties have a direct bearing on the issue of bombardment. These are "Laws of War: Laws and Customs of War on Land (Hague IV); 18 October 1907" and "Laws of War: Bombardment by Naval Forces in Time of War (Hague IX); 18 October 1907". It is significant that there is a different treaty which should be invoked for bombardment of land by land (Hague IV) and of land by sea (Hague IX). Hague IV, which reaffirmed and updated Hague II (1899), contains the following clauses: Although the 1907 Hague Conventions
IV – The Laws and Customs of War on Land and
IX – Bombardment by Naval Forces in Time of War prohibited the bombardment of undefended places, there was no international prohibition against indiscriminate bombardment of non-combatants in defended places, a shortcoming in the rules that was greatly exacerbated by aerial bombardment. The attendees of the
Second Hague Conference in 1907 did adopt a "Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons" on 18 October 1907. It stated: "The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature." The foreshadowed "Third Peace Conference" never took place, and the Declaration remains in force. The United Kingdom and the United States ratified the Declaration. With the rise of aerial warfare, non-combatants became extremely vulnerable and inevitably became
collateral targets in such warfare – potentially on a much larger scale than previously. bombing
Warsaw in 1914
World War I (1914-1918) saw the first use of
strategic bombing when German
Zeppelins and aircraft indiscriminately dropped bombs on cities in Britain and France. These nations, fighting against
Germany and its allies in the war, retaliated with their own air-raids (see
Strategic bombing during World War I). A few years after World War I, a draft convention was proposed in 1923:
The Hague Rules of Air Warfare. The draft contained a number of articles which would have directly affected how militaries used aerial bombardment and defended against it: articles 18, 22 and 24. The law was, however, never adopted in legally binding form as all major powers criticized it as being unrealistic. The
Greco-German arbitration tribunal of 1927–1930 arguably established the subordination of the law of air warfare to the law of ground warfare. It found that the 1907 Hague Convention on "The Laws and Customs of War on Land" applied to the German attacks in Greece during World War I: This concerned both Article 25 and Article 26. Jefferson Reynolds in an article in
The Air Force Law Review argues that "if international law is not enforced, persistent violations can conceivably be adopted as customary practice, permitting conduct that was once prohibited." Even if the Greco-German arbitration tribunal findings had established the rules for aerial bombardment, by 1945, the
belligerents of
World War II had ignored the preliminary bombardment procedures that the Greco-German arbitration tribunal had recognized. that called for the protection of civilian populations against bombardment from the air. In response to the resolution passed by the League of Nations, would have provided specific definitions of what constituted an "undefended" town, excessive civilian casualties and appropriate warning. This draft convention makes the standard of being undefended quite high – any military units or anti-aircraft within the radius qualifies a town as defended. This convention, like the 1923 draft, was not ratified – nor even close to ratification – when hostilities broke out in Europe in 1939. While the two conventions offer a guideline to what the belligerent powers were considering before the war, neither of these documents came to be legally binding. At the start of World War II in 1939, following an appeal by
Franklin D. Roosevelt, President of the then neutral United States, the major European powers, including Britain and Germany, agreed not to bomb civilian targets outside combat zones: Britain agreeing provided that the other powers also refrained (see
the policy on strategic bombing at the start of the World War II). However, this was not honored, as belligerents of both sides in the war adopted a policy of indiscriminate bombing of enemy cities. Throughout World War II, cities like
Chongqing,
Warsaw,
Rotterdam,
London,
Coventry,
Stalingrad,
Hamburg,
Dresden,
Tokyo,
Hiroshima, and Nagasaki suffered aerial bombardment, causing untold numbers of destroyed buildings and the deaths of tens of thousands of civilians. After World War II, the massive destruction of non-combatant targets inflicted during the war prompted the victorious
Allies to address the issue when developing the
Nuremberg Charter of August 1945 to establish the procedures and laws for conducting the
Nuremberg trials (1945–1946). Article 6(b) of the Charter thus condemned the "wanton destruction of cities, towns or villages, or devastation not justified by military necessity" and classified it as a violation of the laws or customs of war, therefore, making it a
war crime. This provision was similarly used at the
Tokyo Trials of 1946–1948 to try Japanese military and civilian leaders in accordance with the
Tokyo Charter (January 1946) for illegal conducts committed during the
Pacific War of 1941–1945. However, due to the absence of
positive or specific
customary international humanitarian law prohibiting illegal conducts of aerial warfare in World War II, the indiscriminate bombing of enemy cities was excluded from the category of war crimes at the Nuremberg and Tokyo Trials, therefore, no
Axis officers and leaders were prosecuted for authorizing this practice. Furthermore, the
United Nations War Crimes Commission received no notice of records of trial concerning the illegal conduct of air warfare. Chris Jochnick and Roger Normand in their article
The Legitimation of Violence 1: A Critical History of the Laws of War explain that: "By leaving out morale bombing and other attacks on civilians unchallenged, the Tribunal conferred legal legitimacy on such practices." In 1963 the atomic bombings of Hiroshima and Nagasaki became the subject of a Japanese
judicial review in
Ryuichi Shimoda et al. v. The State. In
obiter dictum comments, the Court drew several distinctions which were pertinent to both conventional and atomic
aerial bombardment. Relying on the Hague Convention of 1907
IV – The Laws and Customs of War on Land and
IX – Bombardment by Naval Forces in Time of War, and the
Hague Draft Rules of Air Warfare of 1922–1923, the Court drew a distinction between "Targeted Aerial Bombardment" and indiscriminate area bombardment (which the court called "Blind Aerial Bombardment"), and also a distinction between a defended and an undefended city. The court ruled that blind aerial bombardment was permitted only in the immediate vicinity of the operations of land forces and that only targeted aerial bombardment of military installations was permitted further from the front. It also ruled the incidental death of civilians and the destruction of civilian property during targeted aerial bombardment was not unlawful. The court acknowledged that the concept of a military objective was enlarged under conditions of
total war, but stated that the distinction between the two did not disappear. The court also ruled that when military targets were concentrated in a comparatively small area, defense installations against air raids were very strong, and the destruction of non-military objectives was small in proportion to the large military interests, or necessity, such destruction was lawful. Not all governments and scholars of international law agree with the analysis and conclusions of the Shimoda review, because it was not based on positive
international humanitarian law. Colonel Javier Guisández Gómez, at the
International Institute of Humanitarian Law in
San Remo, points out:
John R. Bolton,
Under Secretary of State for Arms Control and International Security Affairs (2001–2005) and
U.S. Permanent Representative to the United Nations (2005–2006), explained in 2001 why the USA should not adhere to the
Rome Statute of the International Criminal Court: ==International law since 1945==