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Published online by Cambridge University Press:  17 January 2008


No place is safe-no place is at peace. There is no place where a woman and her daughter can hide and be at peace. The war comes through the air, bombs drop in the night. Quiet people go out in the morning, and see air-fleets passing overhead-dripping death-dripping death!1

Research Article
Copyright © British Institute of International and Comparative Law 2005

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2 Media also have a deep impact on Western public opinions, especially when they report about civilian killings (the so-called ‘CNN factor’).Google Scholar

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9 In the aftermath of the events of 11 09 2001, the US-led campaign against the Taliban regime in Afghanistan started on 7 Oct 2001 with air strikes against Kabul, Kandahar and terrorist training camps near Jalalabad. Kabul fell on 13 Nov and a new interim government led by Hamid Karzai took office on 22 Dec.Google Scholar

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11 The preamble of the 1868 St Petersburg Declaration generically states that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’. Similarly, Art 25 of the Regulations annexed to the IV Hague Convention of 1907 respecting the Laws and Customs of War on Land and Art 1 of IX Hague Convention concerning Bombardment by Naval Forces in Time of War prohibit the bombardment of undefended localities.Google Scholar

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18 Department of the Air Force, IL The Conduct of Armed Conflict and Air Operation (19 11 1976) [hereinafter 1976 USAF Pamphlet] para 5–3. The Pamphlet is not directive in nature and does not promulgate official US Government policy, although it does refer to US Department of Defense and Air Force policies (i).Google Scholar

19 US Air Force Intelligence Targeting Guide Air Force Pamphlet 14–210 Intelligence (1 02 1998) [hereinafter 1998 USAF Intelligence Targeting Guide] paras A4.2.1. and A4.2.2.Google Scholar

20 Joint Doctrine for Targeting Joint Publication 3–60 (17 Jan 2002) [hereinafter 2002 US Joint Doctrine for Targeting] <> Appendix A, at A-2. However, the United States does not consider that the prohibition on reprisals reflects customary law (Matheson, MJ (1987) 2 American University Journal of International Law and Policy 426Google Scholar). This is criticized by the ICTY in Kupreškić et al Case No IT-95–16-T, Trial Chamber II 14 Jan 2000, para 527 et seq.

21 UK Ministry of Defence The Manual of the Law of Armed Conflict (OUP Oxford 2004) [hereinafter 2004 UK Manual] 315–16.Google Scholar

22 Legge italiana di guerra, approved by Royal Decree no 1415 of 8 07 1938.Google Scholar

23 The preamble to this Resolution states that these fundamental humanitarian law principles apply ‘in all armed conflicts’, meaning both international and internal. The UN Security Council also declared that the deliberate targeting of civilians in armed conflict is a threat to international peace and security and triggers Council action (Resolution 1296/2000).Google Scholar

24 1976 USAF Pamphlet 5–7.Google Scholar

25 Dod Final Report to Congress 610.Google Scholar

26 Amnesty International ‘Collateral Damage’ or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force (June 2000) AI-Index EUR 70/18/00, 14–15.Google Scholar

27 Quoted in Roberts, ANATO's “Humanitarian War” over Kosovo’ (1999) 41 (3) Survival 112.CrossRefGoogle Scholar

28 Final Report by the Committee established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (8 06 2000) [hereinafter ICTY Final Report] para 90 (2000 39 ILM 1257 ff).Google Scholar

29 ICJ Reports (1996) para 78.Google Scholar

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31 Voon, TPointing the Finger: Civilian Casualties of NATO Bombing in the Kosovo Conflict’ (2001) 16 American University International Law Review 1104–5.Google ScholarThe same tactic was adopted by B-52s during the 1991 Gulf War (Lippman, MAerial Attacks on Civilians and the Humanitarian Law of War: Technology and Terror from World War I to Afghanistan’ (2002) 33 California Western International Law Journal 46).Google Scholar

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35 See Taft, WH, IV ‘The Law of Armed Conflict After 9/11: Some Salient Features’ (2003) 28 Yale Journal of International Law 322. Art 51 (4) (c) qualifies as indiscriminate those attacks ‘which employ methods or means of combat the effects of which cannot be limited as required by this Protocol’.Google Scholar The bombing of the village of KoriSa (14 May 1999) seems to fall within the provision. Night bombing was also carried out in Operation Iraqi Freedom (Amnesty International Iraq-Civilians Under Fire (04 2003) AI Index MDE 14/071/2003, 4Google Scholar).

36 The assessment, however, has to be made on a case-by-case basis. In some situations, night bombing could be less dangerous for civilians, for instance in working places.Google Scholar

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149 Emphasis added. However, aerodromes are considered military objectives by the Convention regardless of their ‘relative importance’.Google Scholar

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155 Middle East Watch above n 127 at 224–7. See also the German Joint Services Regulations, para 443.Google Scholar

156 Para A4.2.2.2. See also the 2002 US Joint Doctrine for Targeting, at A-3.Google Scholar

157 APV Rogers above n 58 at 63 (emphasis added).Google Scholar

159 Woods, M ‘Flipper goes to war’ (27 03 2003) <>. Dolphins and other marine mammals (sea lions, pilot and killer whales) can also carry cameras and hunt for enemy scuba divers. Operation Desert Storm was the first major war in which the military made an effort to keep animals from harm and help alleviate their suffering after the end of the hostilities..+Dolphins+and+other+marine+mammals+(sea+lions,+pilot+and+killer+whales)+can+also+carry+cameras+and+hunt+for+enemy+scuba+divers.+Operation+Desert+Storm+was+the+first+major+war+in+which+the+military+made+an+effort+to+keep+animals+from+harm+and+help+alleviate+their+suffering+after+the+end+of+the+hostilities.>Google Scholar

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161 Animals are mentioned in the ICRC Commentary of Art 35 (3) (para 1443).Google Scholar

162 Art 6 (3). Natural heritage means ‘natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty’ (Art 2).Google Scholar

163 Art II. Animals are also explicitly taken into account in Part XI of the Convention (‘Investigations in cases of alleged uses of chemical weapons’).Google Scholar

164 Para A4.3.1.2.Google Scholar

165 This has been acknowledged by the US Department of State's Legal Adviser, WH Taft, IV above n 35 at 322.Google Scholar

166 Human Rights Watch above n 49 at 20.Google Scholar

167 The principle of proportionality is also contained in Art 24 (4) of the 1923 Hague Draft Rules on Air Warfare.Google Scholar

168 The United States acknowledges that Art 51 of Additional Protocol I reflects customary law (Matheson, MJ 2 American University Journal of International Law and Policy (1987) 426Google Scholar). However, the 1998 USAF Intelligence Targeting Guide (para A4.3) does not qualify the military advantage as ‘concrete’ or ‘direct’.

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170 Oeter, S above n 51 at 173. Accordingly, the balance could hardly be made by a court: see R v Secretary of State, ex p Thring, Court of Appeal (Civil Division), 20 07 2000 (the text can be read at <www.icrc.orgihl-nat>).).>Google Scholar

171 See the interpretative declarations issued by Germany, Belgium, Italy, the Netherlands and Spain. The ICTY Final Report suggests that the balance between the military advantage and the collateral damage must be made according to the standards of the ‘reasonable military commander’ (para 50).Google Scholar

172 According to Resolution 3318 (XXIX) adopted by the UN General Assembly on 14 12 1974, ‘[a]ttacks and bombings on the civilian population, inflicting incalculable suffering, especially on women and children, who are the most vulnerable members of the population, shall be prohibited, and such acts shall be condemned’ (emphasis added).Google Scholar

173 1998 USAF Intelligence Targeting Guide para A4.3.1.2.Google Scholar

174 Kupreškić Judgment above n 20 para 526. According to the Tribunal, this interpretation follows from the application of the Martens clause codified in Art 1 (2) of Additional Protocol I.Google Scholar

175 See also para 444 of the German Joint Services Regulations and the 2002 US Joint Doctrine for Targeting (at A-2).Google Scholar

176 According to a report of the United Nations Under Secretary-General for Administration and Management, the Gulf War had ‘near-apocalyptic results upon the economic infrastructure’ and relegated Iraq ‘to a pre-industrial age’ (quoted in M Lippman above n 31 at 42).Google Scholar

177 WJ Fenrick above n 66 at 74.Google Scholar

178 Quoted in Glick, CBArcheological Shields, Saddam holds Iraq's antiquities hostageWall Street Journal (27 03 2002) <>.Google Scholar

179 ICJ Reports (1996), para 30.Google Scholar

180 Quotations from, respectively, NATO Secretary General and General Wesley Clarke, NATO Press Conference,11 Apr 1999 (reported in P Rowe above n 144 at 147–8).Google Scholar

181 Quoted in Hoffman, MHPeace-Enforcement Actions and Humanitarian Law: Emerging Rules for Interventional Armed Conflict’ (2000) 82 International Review of the Red Cross 195.Google Scholar

182 Bothe, MLegal Restraints on Targeting: Protection of Civilian Population and the Changing Faces of Modern Conflicts’ (2001) 31 Israel Yearbook on Human Rights 43, 48–9Google Scholar; H DeSaussure above n 90 at 514; Roberts, AThe Laws of War after Kosovo’ (2001) 31 Israel Yearbook on Human Rights 91.Google Scholar

183 Bothe, M above n 182 at 43.Google Scholar

184 ICTY Final Report para 32.Google Scholar

185 At A-1 (emphasis added).Google Scholar

186 See, for instance, NATO Press Conference (26 03 1999) <>..>Google Scholar

187 Para 208.Google Scholar

188 Dinstein, Y above n 16 at 4.Google Scholar

189 UNEP/UNCHS above n 122 at 33.Google Scholar

190 UNEP/UNCHS above n 122 at 39–40.Google Scholar

191 UNEP/UNCHS above n 122 at 62–4. The ICTY Final Report has argued that there are no conventional provisions prohibiting the use of depleted uranium munitions (para 26).Google Scholar

192 Other relevant provisions may be found in the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects and its Protocol i n on the use of incendiary weapons, which forbid the use of such weapons on forests and other kinds of plant cover with the exception of military necessity (‘except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives’: Art 2 (4)). As far as international watercourses are concerned, the Convention adopted by the UN General Assembly in 1997 must be recalled, Art 29 of which states: ‘International watercourses and related installations, facilities and other works shall enjoy the protection accorded by principles and rules of international law applicable in international and non-international armed conflict and shall not be used in violation of those principles and rules’ (see Tanzi, A and Arcari, MThe United Nations Convention on the Law of International Watercourses (Kluwer Law International London-The Hague-Boston 2001) 6873Google Scholar). Finally, protection to the natural environment in time of armed conflict is also provided in some soft law instruments, such as the 1972 Stockholm Declaration (Principle 26), the World Charter for Nature (para 5), the 1992 Rio Declaration on Environment and Development (Principle 24), the Agenda 21 (para 39.6 (a)), General Assembly Resolutions 47/37 of 25 Nov 1992 and 49/50 of 9 Dec 1994. The 1976 Geneva Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, entered into force on 5 Oct 1978, is more aimed at the possible future achievements of military technology such as the control over earthquakes and hurricanes, than to environmental damages caused by bombardments with existing weapons, and therefore will not be examined in depth here.

193 Art 35 (3): ‘It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’.Google Scholar

194 Art 55 (1): ‘Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.’Google Scholar

195 There are no provisions specifically protecting the environment in Additional Protocol n. The only protection comes indirectly from Art 14 (which protects the objects indispensable to the survival of the civilian population) and from Art 15 (prohibition to attack works and installations containing dangerous forces).Google Scholar

196 Unlike Art 8 (2) (b) (iv) of the ICC Statute, which requires that the attack be intentional.Google Scholar

197 Emphasis added. Unlike Art 35, Art 55 adds the further requirement of the prejudice to the health or survival of the population. ‘Health’ is used in a broad sense and the connection with ‘survival’ means that temporary, short terms and not serious effects are not contemplated within the provision (Bothe, MPartsch, KJSolf, WANew Rules for Victims of Armed Conflicts: Commentary to the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Nijhoff Publishers The Hague-Boston 1982) 346–7).Google Scholar

198 Emphasis added.Google Scholar

199 Rapport explicatif of the En-Mod Convention (understanding to Art I). According to the German Joint Services Regulations ‘“widespread”, “long-term”, and “severe” damage to the natural environment is a major interference with human life or natural resources which considerably exceeds the battlefield damage to be regularly expected in a war’ (paras 401, 403).Google Scholar

200 ICRC Commentary, para 1454. See also, as far as naval warfare is concerned, N Ronzitti ‘Le droit humanitaire applicable aux conflits armés en mer’ Recueil des cours de l'AcadÉmie de droit international de La Haye (1993-V) 109–10.Google Scholar

201 Bothe, M, Partsch, KJ, and Solf, WA above n 197 at 348; S Oeter above n 51 at 118.Google Scholar

202 E David above n 51 at 266.Google Scholar

203 However, the ICTY Final Report concluded that ‘[t]here is no specific treaty provision which prohibits or restricts the use of cluster bombs although, of course, cluster bombs must be used in compliance with the general principles applicable to the use of all weapons’ (para 27).Google Scholar

204 Para 17.Google Scholar

205 Schmitt, MNWar and the Environment: Fault Lines in the Prescriptive Landscape’ (1999) 37 Archiv des Volkerrecht 127.Google Scholar

206 Para 15. See also A Cassese above n 84 at 54Google Scholar

207 ICJ Reports (1996) para 31.Google Scholar

208 Remarks of Matheson, MJ (1987) 2 American University Journal of International Law and Policy 424.Google Scholar

209 2002 US Joint Doctrine for Targeting A-6; The Commander's Handbook on the Law of Naval Operations above n 85 para 8.1.3. No specific environmental considerations appear in the 1976 USAF Pamphlet.Google Scholar

210 2004 UK Manual 315.Google Scholar

211 Council decision 2003/222/CFSP of 21 Mar 2003.Google Scholar

212 In any case, in the most recent conflicts the precise number of civilian casualties has proved impossible to establish, due to difficulties in obtaining independent verification.Google Scholar

213 Human Rights Watch above n 49 at 16.Google Scholar

214 The only exception is the 1977 Additional Protocol I, Art 1 (4) of which takes into account ‘armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’. The Protocol, however, does not provide for specific rules for this kind of conflict, but submit them to the same provisions as those for international ones.Google Scholar

215 See, eg, the 2002 US Joint Doctrine for Targeting at A-4.Google Scholar

216 Kupreškić Judgment above n 20 para 525.Google Scholar

217 Bothe, M, Partsch, KJ, and Solf, WA above n 197 at 325.Google Scholar

218 See the Rules of engagement distributed to the US military forces in Iraq, according to which attacks on the enemy infrastructure, lines of communication and economic objects must be aimed at disabling and disrupting, avoiding distraction if possible (reported in Human Rights Watch above n 49 at 138–9).Google Scholar

219 Garden, T above n 56 at 709–10.Google Scholar

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