International Law and the Politics of Urban Air Operations

By Matthew C. Waxman | Go to book overview
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Chapter Two
THE LAW OF ARMED CONFLICT AND
URBAN AIR OPERATIONS

The law of armed conflict1 is the body of norms regulating the conduct of states and combatants engaged in armed hostilities. International law generally derives from both treaties (conventions and agreements among states) and custom. The contemporary law of armed conflict regime draws heavily from the Hague Conventions, negotiated at the peace conferences of 1899 and 1907, and the Geneva Conventions,2 as well as numerous agreements that limit the means and conduct of hostilities.3 Equally, and in some instances more, important for regulation of air operations is “customary law.”4

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1
The term “law of war” is often used interchangeably with “law of armed conflict,” even though the legal requirements placed on parties sometimes depend on the type of conflict or operation being waged. This report is concerned with the legal norms that apply across the spectrum of conflict and, for clarity's sake, employs throughout the term “law of armed conflict.” On the applicability of the law of armed conflict to military operations other than war, and some ambiguities surrounding this issue, see Timothy P. Bulman, “A Dangerous Guessing Game Disguised as Enlightening Policy: United States Law of War Obligations During Military Operations Other Than War,” Military Law Review, Vol. 159 (1999).
2
The 1977 Protocols Additional to the Geneva Conventions of 1949 (often referred to simply as Protocol I and Protocol II) spell out specific sets of rules to govern international and internal conflicts. The United States has not ratified the Protocols; it has declared its intention to be bound by them to the extent that they reflect customary law. See Michael J. Matheson, “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy, Vol. 2 (1987), pp. 419–431.
3
For example, the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare (“Gas Protocol”) prohibits the use of some types of chemical weapons.
4
Theodor Meron, “The Continuing Role of Custom in the Formation of International Humanitarian Law,” American Journal of International Law, Vol. 90 (1996). The growing importance of customary law in the law of armed conflict regime is highlighted by a decision of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadic, where the court emphasized, among other things, that certain customary rules of warfare apply in internal as well as international armed conflicts. (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, available at http://www.un.org/icty/tadic/appeal/decision-e/510002.htm.)

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