A 1907 unwilling/unable doctrine?


I’ve been doing some work on the Vietnam War, and was exploring how the Law of Armed Conflict applied at the time, with Additional Protocol I to the Geneva Conventions only coming out in 1977. I was going through the 1907 Hague Regulations (IX) that applied the Naval bombardment, and according to the US Department of Defense at the time, this convention also applied prima facie to aerial bombardment (A Rovine, ‘Contemporary Practice of the United States Relating to International Law’ AJIL, Vol.67, No.1 (Jan 1973), p.118-126, 123), and found something interesting, although perhaps not of real-world impact.

Whist I was reading Article 2, it struck me as sounding very similar to modern Unwilling/Unable doctrine that the US has been using to justify drone strikes in territories where they are not explicitly allowed to conduct lethal counterterrorism operations, such as Somalia and Syria. The doctrine says that if a terrorist, or terror group, threatening the citizens of country A is residing, or operating, in a country B, and the government of country B is either unwilling or unable to deal with the terrorists threatening country A, then country A has the right to intervene and deal with the terrorists themselves. For example, country B may be unwilling to combat the threat to A, because they are ideologically aligned with the terrorists (such as the Taliban and al-Qaeda in 2001), or their military and security forces simply do not have the ability and capacity, and are therefore unable to deal with the threat (such as the Syrian government being unable to effectively combat ISIS until the Russian intervention on their side).

The first two articles of the 1907 Hague Regulations, however, are here:

Article 1. The bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden.
A place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour.

Article 2. Military works, military or naval establishments, depots of arms or war ‘ matériel, ‘ workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbour, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed.
He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances.
If for military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph l, and that the commander shall take all due measures in order that the town may suffer as little harm as possible.

This means that a military commander could request enemy authorities to destroy military-linked industry, and provide them with sufficient time to carry this out. However, if those authorities were unwilling/unable to destroy the installations, the commander would have legitimate recourse to destroy them using his forces, ‘if all other means are impossible.

It is this requirement, and if ‘immediate action is necessary’ that links to unwilling/unable doctrine. For it to legitimise a use of force, all other peaceful means of dealing with the threat, i.e. diplomatic, and law enforcement options, must have been exhausted before lethal force is the only option. I.e. all other means are impossible for dealing with the threat.

USS Saint Paul bombarding Wonsan, Korea, on 27 July 1953 (Photo: US Navy)

I thought these links were interesting, as despite the progression, and increased awareness of humanitarian issues since 1907, military necessity appears to trump it in relation to targeting.

However, there are two important differences. The Hague regulations refer to targeting zones of an enemy city, whereas unwilling/unable doctrine is related to targeting of individuals. Thus, whilst the logic of military necessity being of greatest importance, the risk of civilian death has been reduced due to increased precision in targeting. Second, the Hague regulations were intended to regulate actions within an armed conflict, whereas unwilling/unable doctrine could be seen as enabling the beginning of an armed conflict, or at least extending it. Thus, they reside in separate bodies of law, and don’t really interact. Therefore, whilst there are similarities, they don’t really exist in practice. But, I thought it was interesting, and thought it worth sharing.

Until next time!

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