A Critical Appraisal of the Air and Missile Warfare Manual

Article excerpt

SUMMARY

I. DELIMITING AND DYSFUNCTIONAL DEFINITIONS ...................................... ....278

A. Attack .......................................................................................................... .278

B. International Armed Conflict ..................................................................... 279

II. RESTRICTIVE, REGRESSIVE, AND REPREHENSIBLE RULES ........................... 282

A. Loss of Protection for Civilians and Civilian Aircraft. ........................ ....282

B, United Nations Forces Are Bound by the Laws of War ..........................288

C. The Absolute Prohibition of Terroristic Targetings of the Civilian Population.............................................................289

D. Legitimate Self-Defense Prevails Over Neutrality ....................................290

CONCLUSION ................................................................................................................... 291

My task during this symposial discourse is to offer a critical appraisal of the Manual on International Law Applicable to Air and Missile Warfare (AMW Manual).1 Although the AMW Manual was adopted by consensus after "extensive consultations" among a notable group of experts over a six-year period2 and allegedly "restates current applicable law,"3 there are a number of provisions that do not reflect current international law (especially the laws of war), are highly problematic and, if actually implemented, could result in war crime responsibility. Additionally, there are a number of provisions that are too limiting in their reach or focus or too inattentive to developments in the laws of war.

I. DELIMITING AND DYSFUNCTIONAL DEFINITIONS

A. Attack

The first set of troubling provisions is in the section on definitions. Instead of analyzing each definition offered, the focus here will be on those that are patently problematic. The first troublesome definition is the definition of "attack," an important conditioning or contextually limiting word that is used throughout the AMW Manual. An attack is defined in the AMW Manual as "an act of violence, whether in offence or in defence."4 It is problematic because limiting the word "attack" to an act of violence is too restrictive, archaic, and insufficiently related to other provisions of the AMW Manual. For example, use of the limiting word "violence" in the general definition of attack is facially inconsistent with the AMW Manual's definition of "computer network attack," which is otherwise sensible and addresses "operations to manipulate, disrupt, deny, degrade or destroy information ... or the computer network itself, or to gain control over the computer or computer network."5 Presumably, computer jamming and disarmament would be covered by the definition of "computer network attack," but would not constitute an attack under the general definition and, therefore, wherever the word "attack" appears without the conditioning phrase "computer network." Similarly, the redirection or destruction of foreign aircraft and missiles through computer hacking and control (which are not acts of violence) would not constitute an "attack" even if there were violent consequences. For the same reason, the definition of "attack" is inconsistent with the AMW Manual's definition of "electronic warfare," which is defined as "any military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy,"6 although the phrase "or to attack" found in this definition is presumably limited by the general definition of "attack" noted above.

Also inconsistent is the AMW Manual's rule 6. It rightly recognizes the absolute prohibition of the use of certain weapons during air or missile combat operations, including any use of "[biological, including bacteriological, weapons," "[cjhemical weapons," and "[pjoison, poisoned substances and poisoned weapons. …