Just Cry Uncle?
Posted Jul 1, 2010 3:20 AM CST
By Ed Finkel
If you ever wondered about the legal ramifications of, say, protecting civilians from air raids or handling an enemy pilot who’s parachuted from an aircraft in distress, then the Manual on International Law Applicable to Air and Missile Warfare could be your beach reading this summer.
With chapters bearing titles such as “Weapons,” “Attacks” and “Direct Participation in Hostilities,” the manual is serious business for military lawyers and commanders, says Claude Bruderlein, director of the Program on Humanitarian Policy and Conflict Research at Harvard University, which coordinated the five-year-long research and writing effort.
Funded primarily by the Swiss government, the manual compiles existing national rules without attempting to expand upon them or elevate them to the level of a treaty, so it does not carry the same weight as, say, the Geneva Conventions do for land warfare, according to Bruderlein.
Given that the last such effort took place in 1923, “all the rules in air warfare are based on interpretation,” he says. “There are no specific rules on how a pilot surrenders. There are no specific rules about no-fly zones, or how you deal with the nature of civilian airliners that can be used as a weapon.”
More than 30 participants—including the U.S. Department of State, the International Committee of the Red Cross and the Kenyan Ministry of Defense—helped to research and write the manual, and more than 50 countries were consulted at some point during the process, Bruderlein says. Many government attorneys participated.
“This is not a legal document. It’s an academic one,” he says. “It’s not about what should the law be; it’s about what is the actual law. It’s a place to start when you want to improve the international law.”
Since no government was asked to endorse the manual, its compilation was a smooth and nonpoliticized process, Bruderlein says.
In addition to military lawyers, the manual is aimed at legislators and humanitarian organizations. It sorts through questions such as whether a bombing of a civilian area constitutes a disproportionate response. Now, such instances are labeled “clearly a war crime,” Bruderlein says, but “each time they add ‘clearly’ it’s because there isn’t a clear rule.”
There also still aren’t clear rules on issues like how a pilot should signal surrender. But it wasn’t for lack of trying. “Everyone had ideas on how a pilot should surrender,” he says. “But there’s no law on that, so the manual doesn’t say so.”