About the Project
The. HPCR Manual on International Law Applicable to Air and Missile Warfare provides the most up-to-date restatement of existing international law applicable to air and missile warfare, as elaborated by an international Group of Experts. As an authoritative restatement, the HPCR Manual contributes to the practical understanding of this important international legal framework. While the HPCR Manual restates current applicable law, the Commentary clarifies the prominent legal interpretations and indicates differing perspectives.
The HPCR Manual and its Commentary are the results of a six-year-long endeavor led by the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), during which it convened an international Group of Experts to reflect on existing rules of international law applicable to air and missile warfare. This Group of Experts has conducted, since 2004, a methodical and comprehensive reflection on international legal rules applicable to air and missile warfare, drawing from various sources of international law. The Black-letter Rules of the HPCR Manual were adopted by consensus by the Group of Experts in Bern, Switzerland on 15 May 2009. The Commentary on the Black-letter Rules was drafted by selected experts from the original Group.
This project would not have been possible without the substantial financial support and generosity of its donors, primarily the Swiss Federal Department of Foreign Affairs. In addition, several governments supported the convening of the Group of Experts in their various meetings, as well as regional consultations, namely Australia, Belgium, Canada, Germany, the Netherlands, and Norway. The International Society for Military Law and the Law of War also facilitated consultations with military experts at regular intervals during the project. In addition, the Fritz Thyssen Foundation and the Max Planck Institute for Comparative Public Law and International Law supported the project by hosting Group of Experts meetings.
By providing a scientifically authoritative reference on international law applicable to air and missile warfare, HPCR hopes to stimulate legal reflections and discussions among legal advisors, military officers, and humanitarian practitioners on the international legal framework applicable to air and missile warfare, and thereby improve the protection of civilians in armed conflict.
B. The Background of the Project
Following a series of informal consultations with scholars and governmental experts, the Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR) launched in 2003 a multi-annual Project, with a view to restating the existing law of air and missile warfare. This initiative, based on the work of renowned international legal experts, culminated in the formulation of the present HPCR Manual on International Law Applicable to Air and Missile Warfare (hereinafter: the HPCR Manual).
Exactly 80 years earlier, in 1923, the famous Rules of Air Warfare were informally drafted at The Hague by a Commission of Jurists (established in 1922 by the Washington Conference on the Limitation of Armament). The Hague Rules, albeit not binding, have had considerable impact on the development of the customary law of armed conflict. Still, much has happened in the intervening 80 years in air warfare, which was in its infancy when the Hague Rules were drawn up. Air power has become a central component of the military arsenal of States and plays a critical role in modern warfare. As for missiles, they were not even conceived in 1923. The exponential changes brought about in air and missile technology in the last few decades have transformed the face of the modern battlefield, revolutionized military strategy, and created a series of distinct challenges to the protection of civilians in time of armed conflict.
Recent hostilities (in Kosovo, Afghanistan, Iraq, etc.) have amply demonstrated that there are currently bones of contention regarding the scope and content of the rules regulating the use of aircraft and missiles in warfare. Although, since the drafting of the 1923 Rules of Air Warfare, a number of international treaties have been adopted in response to developments in modern warfare (in particular, the four 1949 Geneva Conventions for the Protection of War Victims and the two Additional Protocols of 1977, as well as diverse conventions regarding cultural property, biological weapons, chemical weapons, etc.), it must be taken into account that (i) these instruments, although containing rules relevant to air and missile warfare, do not address a number of important aspects of air and missile operations; and (ii) while the Geneva Conventions are universal in their scope of application, other instruments (especially AP/I) are not binding on all States: non-Contracting States (primarily the United States) explicitly contest some of their rules. It is for that reason that the Commentary on the HPCR Manual has endeavoured to identify US practices and positions which are consistent with the rules of AP/I.
It is important to bear in mind that the current daunting challenges to the law of air and missile warfare are not derived merely from the rapid pace of development of new technologies. There is also an urgent need to confront new methods of warfare (however gruesome), introduced by international terrorism. At least since 11 September 2001, the law of armed conflict has been forced to consider, e.g., the use of a hijacked civilian airliner as a weapon (cf. Rule 63 (b) of this Manual).
The lack of a contemporary methodical restatement of the law regulating air and missile warfare has become particularly glaring in light of the successful effort to restate the law applicable to sea warfare, culminating in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (published by the International Institute of Humanitarian Law in 1995). Most of the rules of the San Remo Manual, while non-binding, have gained overtime extended support from leading maritime powers. The San Remo Manual covers - to some extent - aerial elements of naval warfare, which are mentioned in the Commentary on the HPCR Manual. But, naturally, this was not the main thrust of the San Remo text.
The present Project uses the San Remo Manual as a model. Like the San Remo Manual, the HPCR Manual must not be confused with a draft treaty, prepared as the ground-work for a future diplomatic conference. The goal is rather to present a methodical restatement of existing international law on air and missile warfare, based on the general practice of States accepted as law (opinio juris) and treaties in force. No attempt has been made to be innovative or to come up with a lex ferenda (however desirable this may appear to be): the sole aim has been to systematically capture in the text the lex lata as it is. Since the authors of the HPCR Manual have no power to legislate, it is freely acknowledged that the emerging restatement must be evaluated not on the basis of logic, expediency or policy considerations. The only test is whether the text of the HPCR Manual is an accurate mirror-image of existing international law. For its part, existing international law is presented with no attempt to conceal any blemishes or inadequacies.
All too frequently, due to the immense proliferation of international law - and the inability of any single expert to be familiar in detail with all its divergent branches - there is a growing tendency of over-specialization in the field. In the preparation of the HPCR Manual, it was deemed indispensable to tie together separate strands of the law, going beyond the strict law of armed conflict to incorporate norms of air law (the Chicago Convention of 1944 and its subsequent annexes), maritime law (the 1982 UN Convention on the Law of the Sea), etc., insofar as they are relevant to air and missile operations.
C. The Process
The genesis of the present Project was in the first Informal High-level Expert Meeting on Current Challenges to International Humanitarian Law (so-called "Alabama 1" meeting), co-organized by HPCR and the Swiss Federal Department of Foreign Affairs in January 2003. A key recommendation of government representatives at the meeting focused on the importance of addressing potential gaps in the present law of armed conflict applicable to high-tech warfare. The theme of air and missile warfare was identified as a high-priority area for the restatement of existing international law. HPCR emerged as the facilitator of this new Project (directed by Professor Yoram Dinstein as Program Advisor).
Following consultations with key Governments and representatives of the ICRC, HPCR convened a Group of Experts, which ultimately grew to approximately 30 qualified international scholars and practitioners, including selected experts from government circles (military and civilian) and from the ICRC, all of them participating in the Project in their purely personal capacity (the names of all the experts appear Appendix I, A). Government representatives of donor countries (a roster that grew over the years to include Switzerland, Germany, Norway, Belgium, Sweden, Australia and Canada) were also invited in their official capacity to observe the deliberations of the Group of Experts (see Appendix I, B). It ought to be made clear that the views expressed in the HPCR Manual do not necessarily reflect those of the Governments or institutions for which some of the experts participating in the Project are working.
The first meeting of the Group of Experts took place at Harvard University in January 2004, and it came up with a Plan of Action: more than 20 topics were selected and assigned to individual experts, with a view to the preparation of research papers (roughly matching the various Sections of the emerging HPCR Manual). It is hoped that the principal research papers will ultimately be published in a revised form: they lie at the root of the HPCR Manual and explain many of the decisions taken by the Group of Experts.
The Group of Experts met several times, in order to examine the research papers and debate legal issues. After thorough examination of the papers, the Group of Experts drew up a first version of the HPCR Manual (consisting of Black-letter Rules) in Brussels in March 2006. A final text of the Black-letter Rules of the HPCR Manual was adopted by the Group of Experts in Bern on 15 May 2009. A list of all sessions of the Group of Experts is produced in Appendix II.
From the onset of the Project, it was perceived that - if the HPCR Manual is to have any impact in the world of reality - it cannot be finalized without prior consultations with Governments. While HPCR did not seek the endorsement of Governments for the Manual, it believes that their views as to the applicable law are indispensable to the elaboration of both the Black-letter Rules and the Commentary. The first consultation took place when the Brussels draft Manual was presented to representatives from approximately 25 States at the Third Informal High-level Expert Meeting on Current Challenges to International Humanitarian Law (so-called "Alabama 3" meeting), held in Montreux, Switzerland, in May 2006. Participating government representatives provided many critical comments and observations. These were subsequently reviewed by the Group of Experts, leading to a considerable revision of the HPCR Manual.
The HPCR Manual (in a number of updated versions) was also submitted to a series of regional and bilateral informal meetings with State representatives (for a complete list of meetings, and States taking part in these consultations, see Appendix III). In all, most of the leading States in the sphere of air and missile warfare have been consulted. Although participation of States in any of the consultation meetings does not imply official endorsement of the specific formulation of any given Black-letter Rule of the HPCR Manual, it is to be hoped that the final text of the HPCR Manual will be put to actual use by their respective armed forces.