Surface-to-Surface Missiles and International Law

A.K. Sachdev, Research Fellow, IDSA

 

Background

Spectacular achievements in the realm of aviation and related technologies are, on the one hand, distending the upper limits of aero-space to indefinite dimensions, while on the other contracting the frontiers of surface confrontation; air power threatens to transport decisive battles to the hinterlands of antagonistic military powers. It is, therefore, that the world was witness--when all irenic endeavour had been baffled in Kosovo--to a military operation by the North Atlantic Treaty Organisation (NATO) that was based entirely on the projection of air power into the air space of a sovereign, albeit recalcitrant, nation. "Aerial bombing" hogged media headlines during the air campaign under "Operation Allied Force", perhaps because of the first ever use of the B-2 stealth bomber and the distasteful downing of an F-117. In contrast, the firing of a large number of Tomahawk cruise missiles by the US Navy suffered a lack of effulgent publicity. Employed in coordinated attacks on ground targets in Serbia, these missiles gave a good account of their credibility as a currency of military power. Future disclosures by NATO will, no doubt, consolidate and confirm their priceless potential as weapon platforms capable of delivering conventional payloads through hostile air space with no risk to the lives of valuable aircrew.

The modern age of surface-to-surface missiles (SSMs) may be deemed to have been ushered in by the German V1/V2 programmes.1 For various reasons, the Germans had to abandon these programmes and it is often convenient for some to draw the obvious (but not entirely accurate) surmise that their efficacy was equivocal. The 'war of the cities' saw generous use of SSMs between Iran and Iraq and so did the Afghanistan conflict. The Gulf War saw both sides using SSMs--the US Navy against targets in Iraq, and Iraq against Israel and Saudi Arabia. The proliferation of SSMs, in particular ballistic missiles (BMs), continues to irk the nuclear weapon states while gratifying the aspirations of a large number of nations, which cannot hope to acquire huge nuclear arsenals. In support of their proliferative efforts they iterate strategic motives which include the deterrent value of BMs against other nations possessing BMs, their real war-fighting value to achieve surprise, increased cost of intervention to the unsympathetic, a neutralising potential against nuclear force and, last but not least, self defence. This paper looks at SSMs and their locus standi in the realm of international law; in doing so it takes a brief look at the existing legal framework in reference to SSMs and critically appraises the letter, the spirit and the might of the UN Charter. As nuclear, biological and chemical weapons, premised largely on SSMs, are the subjects of considerable debate, discussion and dialogue, the stress here is more on the conventional aspects of the subject.

SSMs and Customary Law of Armed Conflict

The international law of armed conflict is generally believed to have its roots in the interactions of the belligerents of the Middle Ages although some aver that the law of war is as old as war itself.2 Hugo Grotius, often referred to as the 'father of international law', provided the basic foundations of the law of war in his De Jure Belli Ac Pacis in 1625. In that book, he made a distinction between the law of war (the rules of international law pertaining to the time of war) and the law of peace (the rules of international law pertaining to the time of peace). The jus ad bellum--the law of peace--governs whether a state or a people may go to war and deals with the prohibition of the use of force. On the other hand, the jus in bello--the law of war--regulates the relations of the antagonists when war has broken out and deals with the prohibition of use of specific weapons.3 This distinction is made here because it pervades the whole gambit of international law, as perceived by nations individually and by the United Nations collectively.

It may be pertinent to note that the terms 'law of war', 'law of armed conflict' and 'humanitarian law' have become more or less synonymous in use except in legally rigorous discussions; international humanitarian law has spread its tentacles and encompassed every aspect of warfare.4

Traditionally, Article 38 of the Statute of the International Court of Justice is accepted as the authoritative enumeration of the sources of international law, which are treaties, customs, general principles of law, judicial decisions and scholarly writings.5

The first attempt to codify the law of war was perhaps the Lieber Code of 1863 which was a US Army General Order promulgated during the American Civil War by President Lincoln of the US and entitled Instructions for the Government of Armies of the US in the Field.6 It dealt with, inter alia, the question of military necessity and reprisals and, although a purely internal document, provided a model for future efforts to codify the law of war. Important developments in the law of war prior to World War II include the St Petersburg Declaration (1868) and the Hague Conventions (1899, 1907). The conduct of nations during the two World Wars highlighted the need to revise and refine the law of war; the result was the Geneva Conventions. Spectacular growth in military technology and developments in international relations led to further impetus to reform in the shape of the 1977 Additional Protocols. The present state of the international law of armed conflict may be seen to incorporate certain customary principles of law; let us weigh the use of SSMs against their backdrop.

Military necessity was cited in the Lieber Code as a concept thus:

Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.7

The Lieber Code included a list of actions permitted by military necessity; implicit therein was an acceptance of death and destruction--including those of non-combatants--that was incidentally unavoidable in war. That the Lieber Code is anachronistic in its own country of origin is proved by the fact that the present US Field Manual does not list the permitted actions but rather refers to the activities not justified under military necessity. It defines military necessity as the principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible (emphasis added). The perceptible escalation of Operation Allied Force from attacks on purely military targets in Serbia to those related to control of operations by Milosevic rested heavily on this principle; collateral civilian deaths thus gained tentative acceptance--at least within NATO. Tomahawks were used with pinpoint accuracy, if the images so selectively disseminated by NATO sources are to be taken at face value. Nevertheless the fact that their targets frequently lay right in the middle of populated urban estate highlighted the military necessity aspect of international law.

Closely related and in a complementary juxtaposition to the principle of military necessity is that of humanity. This latter principle finds articulation in the 1868 St Petersburg Declaration, the Hague Conventions, the Geneva Conventions and the 1977 Protocols. While the principle of military necessity addresses actions indispensable to the aims and objectives of war, the principle of humanity attempts to disallow measures, which are not necessary for the attainment of a definite military advantage. Following from these two principles is that of proportionality which seeks to stipulate that the losses resulting from a military act should be proportional to the anticipated military advantage i.e. these losses should not exceed the military advantage that accrues from that military act. These three principles are sometimes collectively referred to as the principle of humanitarian law the proportionality aspect of which is specifically significant in the context of civilian protection. The very fact that SSMs traverse large distances to their targets and can have large Circular Error Probabilities (CEPs) tends to shroud them in a penumbra inasmuch as collateral damage to civilian life and limb is a high certainty with BMs and a matter of chance in the case of cruise missiles. However, the actual conduct of armed conflict in the past is witness to the fact that this very collateral damage aspect has been a critical factor in the decision by belligerent nations to use missiles; the use of Scuds by Iran and Iraq against each other and by Iraq during the Gulf War are instances of illustration.

Another principle of international law of armed conflict is that of distinction, sometimes also referred to as the principle of discrimination, which distinguishes between combatants and non-combatants as also between civil objects and military objectives. This principle has been codified in several international treaties/conventions and crystallised as UN General Assembly Resolution No 2444 in 1969.8 A majority of the nations of the world accept this resolution as declaratory of customary international law; implicit to this acceptance is the prohibition of attacks by aerial bombing and missiles on civilian objects and population. It is, however, noteworthy that, despite the general acceptance of this principle, the record of nations bent on war is not a happy one as far as strict observance of the principle is concerned. Between September 1944 and March 1945, the Germans launched a total of 518 V2 rockets at London. Their very large CEP of 17 km would have made any pretence of targetting only military objectives open to ridicule; the V2 attacks destroyed 2,00,000 homes and inflicted 21,380 civilian casualties.9 In contrast to the 17 km CEP of the V2 rockets, the Iraqi Scuds had a CEP of 1km--much less than that of the V2 but not small enough to target military targets (say a military HQ or a military installation). Even the Tomahawk with an advertised accuracy of less than 50 metres has the potential to infract the principle of distinction; the incidence of civilian casualties due to a missile hitting 300 metres short of its intended target during Operation Allied Force is a case in point.10

Some Specific Provisions in Law

Having had a look at the general principles of the law of armed conflict, let us examine some specific provisions of treaty and convention law. Perhaps the first attempt at codifying legal provisions for aerial warfare was the Hague "Declaration (IV.I) to Prohibit For The Term of Five Years the Launching of Projectiles and Explosives From Balloons, and Other Methods of A Similar Nature" (emphasis added) of 1899. Speculation about possible use of aircraft in war led to the Hague "Declaration (XIV) to Prohibiting the Discharge of Projectiles and Explosive From Balloons" in 1907; this declaration renewed the expired declaration of 1899 and retained most of its content--including the "other methods" clause. Interestingly, the Contracting Parties agreed to adhere to its provisions for a period extending to the close of the Third Peace Conference; as that conference never took place, the declaration is still legally in force today.11 It must be noted, however, that of the then Great Powers, only Great Britain and the United States ratified the declaration; France, Germany, Italy, Japan and Russia neither signed nor ratified it.

These attempts to regulate or rather prohibit the discharge of projectiles from the air also found articulation in Article 25 of the Regulations Respecting the Laws and Customs of War on Land, 1899 which read as follows:

The attack or bombardment of towns, villages, habitations or buildings that are not defended, is prohibited.

Significantly, the corresponding Article of the 1907 renewal of the 1899 Regulation had the clause "by whatever means"12 inserted in it to cover attack or bombardment from the air. Thus, while the first heavier than air vehicles were getting air-borne, there were already premonitions of death and destruction travelling far and fast on wings. Surely, "whatever means" embrace the modern day SSMs in all their myriad shapes and sizes; the common thematic thread seems a destructive capability that can deter, dissuade and, if required, fight a war.

The Washington Conference of 1922 on the Limitations of Armaments resolved to appoint a Commission of Jurists to prepare rules relating to aerial warfare. This commission met from December 1922 to February 1923 and did indeed prepare rules of air warfare but these rules were never adopted in a legally binding form. Some of its provisions roughly correspond in spirit to those of "Draft Convention for the Protection of Civilian Populations Against New Engines of War" which was prepared by the International Law Association and approved in principle at its Fortieth Conference in 1938. Article 3 reads:

The bombardment by whatever means of towns, ports, villages or buildings that are defended is prohibited at any time (whether at night or day) when objects of military character cannot be clearly recognised.

The International Conferences of the Red Cross (ICRCs) during the 1920s and the 1930s also took steps towards laying down rules for the protection of civilians during war, but World War II came in the way of any meaningful convention. The experience of the war showed the disastrous consequences of not having rigorous laws in relation to the protection of civilians; V1 and V2 attacks by the Germans and the indiscriminate bombing of cities by both sides exposed the weaknesses of the existing legal framework. The 1949 Geneva Convention endeavoured to combat this by addressing the protection of civilian populations in times of war. In the same vein, the spirit of Resolution XXVIII adopted at the XXth ICRC in 1965 entitled "Protection of Civilian Populations Against the Dangers of Indiscriminate Warfare" is to lay down the principles of prohibiting attacks on civilian populations and distinguishing between civilians and military personnel; this resolution was affirmed by UN General Assembly Resolution No 2444 (mentioned earlier). At first look, these general provisions seem to circumscribe the use of SSMs somewhat but in the light of the record of nations in adhering to the provisions of international law, there does not seem to be a strong enough demotivating impetus to discourage the proliferation and the subsequent use of SSMs. The provisions of the 1899 and 1907 Hague Conventions left the question of defining the distinction between a defended and an undefended one unaddressed. Thus, during World War I, the "prohibition" of bombardment was a feeble whip against nations bent on twisting the fine print to their convenience. During World War II also, there was extensive use of bombardment, including the use of missiles and rockets, against civilian populations for the express purpose of intimidating the enemy into surrender; the use of the atom bomb was the ultimate unsavoury chapter in the history of attacks on civilian populations. The development and deployment of weapons of mass destruction (WMDs) has since then obfuscated the matter further; this paper does not address WMDs per se but it is pertinent to note that SSMs are fast becoming the preferred means of delivery for WMDs as well as conventional payloads. The proliferation in the development and possession of ballistic as well as cruise missiles are proof of the fact that SSMs are considered not only instruments of deterrence but also of giving military advantage in armed conflict.

Implementation

An inherent weakness of the international legal system has been the matter of implementation i.e. the apparatus to take punitive action against nations that violate the porovisions of international law. Indeed, this issue has gained prominence in international relations as well as in the internal politics of nations--the latter increasingly so during the last two decades. The formal mechanisms for implementation have had no preventive significance and hardly any punitive accomplishment to its credit. The intended and the actual mechanisms are beset with problems--not all related to the meandering course of the evolution of contemporary law. Let us take a brief look at these.

The 1899 and 1907 Hague Conventions and the regulations connected to them lack the precision that would rationally be expected from legal documents; perhaps that is because of the circumstances that were prevalent at the time of their drafting. Even where the conventions speak of liability to compensation or refer to legal proceedings, the exact mechanism for these compensations or proceedings is conspicuous by its omission. The absence of formal provisions, it was presumed, would be compensated for by the responsible behaviour of states in ensuring that rules were observed and offenders brought to justice. However, the states belied these fond hopes through pursuit of national interests and, in the post-1945 period there have been many other efforts to rectify the situation in respect of implementation.

Article 1 of the 1949 Geneva Conventions calls on states to "ensure respect for the present Convention in all circumstances" and thus seems to imply a universal obligation on all states as well as regional and international organisations to implementation and enforcement. This implication, though the subject of discourse, is yet to find satisfactory consummation at either the state level or the international organisational one.

The 1977 Geneva Protocol I provides, under its Article 90, the establishment of a permanent International Fact Finding Commission to "enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol" and to "facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol". The International Humanitarian Fact Finding Commission became operational in July 1992 but states have preferred ad hoc arrangements under the auspices of the UN Security Council, perhaps because of the very fact that they are ad hoc and thus more suited to the circumstances of a particular case.

Adam Roberts lists five consideration that help to explain why the subject of implementation and enforcement of the laws of war has been a central and difficult issue in international diplomacy. These are:

The scale and frequency of serious infractions of existing rules in the last two decades by state and non-state belligerents.

Some of the atrocities have been executed in conflicts with at least some element of civil war.

Despite the fact that, in several cases, the legal imperative was clearly discernible, the critical issue remained as to what needed to be done when states (and non-states) persistently violated the law and then refused to investigate the matter(s).

There has been an increase in the role of the UN Security Council in the implementation of the laws of war, including through an involvement in several arms control and laws of war treaties.

There has been a harsh conflict between the two choices: the first is the desire to punish those guilty of war crimes and the second, the larger process of peace-keeping.13

The UN and the Laws of War

Notwithstanding the irreverent sidelining of the UN by NATO during the Kosovo crisis, the UN is the apex international agency to address matters of international law of armed conflict. Its theoretical powers and roles in enforcement include Security Council and General Assembly Resolutions, monitoring and investigative work by the secretary general and by other UN bodies, decisions of the International Court of Justice, authorisation of certain uses of force to repress violations, the creation of international tribunals and the Statute of the International Criminal Court. Treaties on Laws of War and related fields have also involved the UN in the context of implementation. In practice, however, the role of the UN has been diluted by the US domination of UN affairs, lack of funds and an inadequate Charter. The International Court of Justice has a role in respect of implementation but that role is limited in the type of cases that may be brought to it and by whom. There is also doubt about its capacity to reach satisfactory conclusions on contentious factual matters and to persuade states to abide by its decisions.

Article 51 of the UN Charter deals with self-defence and recognises the inherent right of individual or collective self-defence in case of an armed attack against a member nation. Incidentally, the right of self-defence was also adopted in Article 12 of the Draft Declaration on Rights and Duties of States by the International Law Commission at its first session in 1949.14 Neither the letter nor the spirit of Article 51 grants a member nation an anticipatory right of self-defence (as was claimed--quite erroneously--by the US in the case of air attacks on Libyan targets during April 1986). As it turned out, this blatant misinterpretation of the Charter was found unpalatable even to the most loyal of the US' traditional allies. In this context, the possession and control of significant number of SSMs by a wide variety of nations, some of whom have not displayed desirable levels of international responsibility in the past, is a matter of concern today. The matter of rolling back the sizeable proliferation, however, concerns disarmament and is not in the purview of jus de bello. In an extra-judicial manner the Missile Technology Control Regime (MTCR) continues to do what the UN has been unable to in the realm of checking proliferation. However, the MTCR's vigilante role is only a partial answer to the problem inasmuch as it addresses only the supply aspect and does not attempt to provide any incentives for compliance with the objectives of the regime.

The recent missile tests by India and Pakistan elicited from UN Secretary General Kofi Annan the statement that these tests "underscored the need for multinationally negotiated norms against development of such weapons". He lamented the non-existence of a treaty regulating missiles and called for an international accord on norms to improve prospects for future progress on existing bilateral and multilateral disarmament and arms control treaties.15

Collective and regional settings also tend to confuse matters further as is evident from the Kosovo crisis wherein NATO used missiles and aircraft against Serbian targets. It is not at once clear whether legal responsibility can be apportioned to any nation for the attacks and the consequent death and destruction of civilian personnel and assets. Discounting for a moment the fact that the entire NATO action had no legal sanctity under international law and presuming the opposite to be the case, would the collateral damage attributable to SSM attacks have been pardonable or even justified?

Conclusion

Having sauntered through some of the provisions of international law that impinge on the use of SSMs today, it is easy to see that there do seem to be generally accepted provisions of law to prohibit their use against civilian populations but that these provisions are unable to restrain nations effectively. The overwhelming weakness of the international legal system is the absence of an international enforcement agency. There seems to be no means of ensuring adherence to the law except a war--a self-defeating option in the context that we are addressing.

More than a century has elapsed since the first Hague Conventions were articulated. Since then the world has seen phenomenal development in the field of missiles. Perhaps it is time that the international community re-addressed the provisions of law as it relates to the use of missiles--and bombs for that matter--against civilian peoples and places. Meanwhile, SSMs continue to be the favoured and coveted acquisitions of Third World nations, including India, which find these to be an economically cost-effective, militarily apt and politically pro-active means of defending, at once, territorial integrity and national prestige. The history of Kosovo may have been dramatically different had Belgrade had access to the option of launching a few SSMs of its own on US/NATO targets in retaliation to the Tomahawk attacks on Serbia. In this context India's manifestation of the desire to develop an indigenous missile capability is an eloquent zeitgeist national emotion that needs to be seen against the backdrop of its national security concerns.

 

NOTES

1. Roger Parkinson, Encyclopaedia of Modern War, Suffolk, (Granada Publishing Limited, first published 1979). p. 268.

2. Edward Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application, (Dordrecht: Kluwer Academic Publishers, 1992), p. 9.

3. SIPRI, The Law of War and Dubious Weapons, (Stockholm: SIPRI, 1976), pp. 1-2.

4. S.G. Chitnis (ed.,), Proceedings of Seminar on Laws of War, (Pune: Centre for Advanced Strategic Studies, 1998) p. 13.

5. Anthony Clerk Arend/Robert J. Beck, International Law and the Use of Force, (London: Routeledge, 1993, p. 5.

6. Dietrich Schindler/ Jiri Toman (eds.,), The Laws of Armed Conflict, (Geneva: Henry Dunant Institute, 1981, pp. 3-23.

7. Kwakwa, p. 38.

8. Ibid., p. 40.

9. CDISS Site http://www.cdiss.org/V2campaign.htm.

10. NATO Briefing as televised live on BBC World News on April 9,1999.

11. Schindler/Toman, n. 6, p. 141.

12. Ibid., p. 78.

13. Ian Brownlie, International Law and the Use of Force by States, (Oxford: Oxford University Press, 1983), p. 254.

15. Times Of India, April 17, 1999, p. 17.