On the 1st of July 2016, Barack Obama issued an Executive Order to address civilian casualties in US operations involving the use of force. Together with this Executive Order, a report was published with information on the number of civilian casualties of US counterterrorism strikes. Referring to areas ‘outside active hostilities’, the document listed an estimate of 64-116 non-combatant deaths in counterterrorism strikes between January 2009 and December 2015. This number is noteworthy in many ways. First, an estimate of anything between 64 and almost twice that number is already a clear suggestion that counting civilian deaths is fraught with difficulties. Second, this estimate is far lower than those compiled by investigative journalists and nongovernmental organisations. Third, focusing on the death toll is perhaps less significant than the fact the US is dropping bombs outside of war zones in the first place.

These debates about who is counted as a civilian in aerial strikes reveal that the principle of distinction remains immensely contested and problematic.[1] This principle states that combatants and civilians must be distinguished and that attacks must be directed only against combatants. That combatants and civilians are recognisable and must be distinguished is seen by many international lawyers as an idea that has somehow been present throughout history.[2] Our era is claimed to be the culmination of civilian protection through its incorporation in international treaties. Against this progressive view of history, I draw attention to how international law was shaped by aerial interventions in the colonies and mandated territories throughout the 1920s and 1930s.

This is a period that has been generally overlooked both in histories of aerial warfare and of international law. In his acclaimed book on the fire-bombing of German cities during the Second World War, Jörg Friedrich states that ‘the decision to use the unprecedented and unusual tactic of bombing cities and civilians was made by a small number of men…’.[3] What is striking here is that this decision can only be considered unprecedented and unusual if one is blind to what was going on outside Europe.

Aerial bombardment was from its inception a colonial enterprise. Before European states started using airplanes against each other, they were already using them to conquer and maintain domination over colonies in Africa, Asia and the Middle East. Perhaps nowhere was air power as important during the interwar period as in Britain’s extensive empire. Having been the first national air force to acquire independence from the army and the navy, the Royal Air Force (the air force of the United Kingdom), needed to justify its continuing existence as a separate service. It found its justification in imperial policing.[4]

In Iraq, the British devised the practice of aerial bombing as a method of colonial administration known as ‘air control’. The architects of this scheme were at various moments, if not simultaneously, theorists of air power, military strategists, politicians, diplomats and colonial administrators. On a practical level, Iraq served as ‘a splendid training ground’ for bombing, providing Royal Air Force pilots most of their experience under war conditions.[5]

Air control was never as straightforward as initially assumed. It was often criticised for consisting solely of indiscriminate bombing. That such methods could be used in Iraq without the condemnation they would bring in Europe was partly a result of deeply held convictions and ideas about ‘Arabia’ as a place that was ‘somehow exempt from the worldliness that constrained human activity elsewhere’. Aerial warfare was the seamless complement to ‘a place in which indiscriminate violence did not matter’, as all news and information emerging from it was fallible and uncertain. In such context, the term civilian population, it was claimed, ‘has a very different meaning in Iraq from what it has in Europe’ given ‘the whole of its male population are potential fighters as the tribes are heavily armed’.[6]

What did international law and international lawyers of the interwar period have to say about aerial warfare and the idea of distinction between combatants and non-combatants? The main attempt of the period to regulate aerial warfare – the 1923 Hague Draft Rules of Aerial Warfare – marked a shift from The Hague Regulations’ distinction between defended and undefended places to the concepts of military objectives and the emerging notion of a civilian population. While consolidating the distinction between military objectives and the civilian population, the 1923 Rules, which were in any case never adopted in legally binding form, afforded little protection to the latter.[7] They also had little to say about colonial bombing. Looking solely at formal documents and treaties fails to explain how colonialism shaped the geography of international law.

Instead, we should also look at the practice of bombing during the interwar period. One revealing instance was the bombing of Damascus by the French in 1925. The bombing of the city was discussed at the Permanent Mandates Commission (PMC) of the League of Nations on its eighth session. It was also central to the disagreement chronicled in the American Journal of International Law between Quincy Wright, a professor of international law from the University of Chicago, and Captain Elbridge Colby, a US army lawyer and an early apologist for aerial warfare. On both those occasions, how the population of Damascus and the Syrian rebels were qualified was crucial to determining whether the laws of war were applied and whether the bombing was considered legitimate.

Wright noted that the Arabs looked at the situation as one of warfare and argued that it was forbidden to bomb an undefended town.[8] In a scathing reply to Wright’s article, Colby took an essentialised difference between Europeans and ‘savages’ as his starting point, sustaining that ‘among savages, war includes everyone… there is no distinction between combatants and non-combatants’.[9] By the time the bombing of Damascus was discussed at the Permanent Mandates Commission, reports from Syrian nationalists were seen as misrepresentations while the French representative was taken for his word.[10] When interrogated about the use of airplanes for bombing villages accused of harbouring rebels, he noted that ‘the repressive measures taken by aeroplanes were not exceptional’ and insisted it ‘was not a particularly barbarous method of repression’.[11]

In a period when the application of the laws of war to colonised and mandated people was contested, it is noteworthy that the French representative had no qualms in referring to the events as war operations. He added that ‘a war in which the operations were being conducted against people who were not in uniform might involve very unfortunate consequences’.[12] At the tenth session of the PMC, its conclusions on the matter read: ‘there is no reason to affirm that the suppression of the revolt was carried out in an abnormal manner or was accompanied by reprehensible excesses’.[13] In this sense, aerial bombardment of civilians in the mandated territories was being progressively normalised. International oversight, instead of condemning aerial warfare, sanctioned the practice.

How could the idea of distinction be reconciled with the normalisation of bombing undefended villages? Part of the answer, I argue, lies in the ideas disseminated by air power theorists and in the practice of bombing in the colonies and mandated territories. Military thought and strategy of the interwar period supported a notion of the moral effect of bombing that portrayed it as a more effective and ‘cleaner’ form of war when compared to the bloodbath of trench warfare. Moreover,  in the practice of bombing mandated territories and colonies, ideas about the moral effect of bombing combined with narratives about places (‘Arabia’) and people (‘savage tribes’) in such a way that the concept of the civilian was interpreted in a distinct manner from the discussions predominant in Europe about whether factory workers deserved immunity or not.

A look into the history of bombing shows that distinction was not shattered but shaped by aerial warfare, acquiring different meanings and informing different policies over time and space. If today’s idea of a ‘good war’ is one that prioritises the protection of civilians, one may look at our contemporary approach to international law as radically different than that of the interwar period. Yet a focus on how the idea of distinction was used in that period in relation to colonial bombing yields a different image, one which emphasises continuities between the contemporary use of drones and earlier uses of air power. It highlights why we still avoid or disagree on counting civilian deaths in certain places, even if the idea of protecting civilians has acquired such a central place in international law. Recently, the idea of counting the death toll itself has been questioned as the US has revoked allegedly ‘superfluous reporting requirements’ that ‘distract intelligence professionals from their primary mission’.

References

[1] See: Helen Kinsella, The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Cornell University Press, 2011) (‘The Image before the Weapon’).

[2] Nils Melzer, ‘The Principle of Distinction Between Civilians and Combatants’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press, 2014).

[3] Jörg Friedrich, The Fire: The Bombing of Germany 1940-1945, tr Allison Brown (Columbia University Press, 2006) 50.

[4] RJ Overy, The Birth of the RAF, 1918: The World’s First Air Force (Allen Lane, 2018).

[5] Jafna L Cox, ‘A Splendid Training Ground: The Importance to the Royal Air Force of Its Role in Iraq, 1919–32’ (1985) 13(2) The Journal of Imperial and Commonwealth History 157 (‘A Splendid Training Ground’).

[6] Priya Satia, ‘The Defense of Inhumanity: Air Control and the British Idea of Arabia’ (2006) 111(1) The American Historical Review 16.

[7] Amanda Alexander, ‘The “Good War”: Preparations for a War against Civilians’ [2016] (first published online on May 31, 2016) Law, Culture and the Humanities 1 (‘The “Good War”’).

[8] Quincy Wright, ‘The Bombardment of Damascus’ (1926) 20(2) American Journal of International Law 263.

[9] Elbridge Colby, ‘How to Fight Savage Tribes’ (1927) 21 American Journal of International Law 279.

[10] Susan Pedersen, The Guardians: The League of Nations and the Crisis of Empire (Oxford University Press, 2015) 165 (‘The Guardians’).

[11] Permanent Mandates Commission, Minutes of the Eighth Session (Extraordinary) Including the Report of the Commission to the Council (No C 174 M 65 1926 VI, League of Nations, March 1926) 148.

[12] Ibid 151.

[13] Permanent Mandates Commission, Minutes of the Tenth Session (No C 632 M 248 1926 VI, League of Nations, December 1926) 186.

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