Bombardment

The term bombardment is used to define an aerial or naval attack on a military objective. It is an accepted method of warfare that is regulated by international humanitarian law (IHL).

The rules of IHL limiting the use of bombardment are clearly enumerated in article 51(5)(a) of the Additional Protocol I to the 1949 Geneva Conventions (API), which elaborates on earlier provisions of the Geneva Conventions (GCI, art. 50, GCII; art. 51, GCIII; art. 130 and GCIV, art. 147) and of the Hague Regulations of 1907 (see arts. 25 to 27 of the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land). These provisions put forward that “extensive destruction […] not justified by military necessity and carried out unlawfully and wantonly” constitutes a grave breach of the Conventions.

These rules are considered part of customary IHL (CIHL), which applies in a similar way to both international and non-international armed conflicts, even for those countries that have not ratified the two 1977 Additional protocols to the four Geneva Conventions.

IHL prohibits direct bombardment and attacks on civilians and other protected persons and objects listed in IHL, such as:

•the civilian population as such (API, art. 51(2); APII, art. 13(2) and CIHL, rules 6 and 10);

•medical units (GCI, art. 19; GCII, art. 23; GCIV, art. 18; API, art. 12 and APII, art. 11 and CIHL, rules 25, 28 to 30);

•cultural objects and places of worship (API, art. 53 and APII, art. 13);

•objects indispensable to the survival of the civilian population (API, art. 54 and CIHL, rule 54);

•works and installations containing dangerous forces (API, art. 56; APII, art. 15; and CIHL, rule 42);

•non-defended localities and demilitarized zones (GCIV, arts. 14 and 15; API, arts. 59 and 60 and CIHL, rules 35 to 37).

For the full list of persons and objects protected from deliberate attack by IHL see ➔ Attack ▸ Military Objectives ▸ Protected object and Property ▸ Protected persons

IHL also prohibits indiscriminate bombardments and attacks because they violate fundamental principles of IHL, such as the principle of distinction between civilians and combatants, the principle of proportionality between military advantage and civilians casualties, and the principle of precaution to minimise civilian casualties.

IHL provides the following precise definition of what constitutes an indiscriminate bombardment or attack:

1. those which are not directed against a specific military objective;
2. those which employ a method or means of combat which cannot be directed against a specific military objective; or
3. those which employ a method or means of combat the effects of which cannot be limited as required;

and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. (API, art. 51(4) and CIHL, rules 11 and 12).

The following types of attack, among others, shall be considered indiscriminate and prohibited:

1. an attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects (API, art. 51(5) and CIHL, rule 13); and
2. an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or any combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. (API, art 51(5) and CIHL, rule 14).

Furthermore, those planning bombardment and attack on legitimate military objectives are obliged to take precautions to ensure that they effectively spare civilians population and civilian objects. These precautions include five distinct obligations on those planning and carrying out bombardment and attack, provided for in article 57 of API and, in rather similar terms, in rules 15 to 21 of CIHL.

-They must do everything feasible to verify that the target they are attacking is not civilians and/or civilians objects, or objects subject to a special protection, such as hospitals, for instance, and that the target is a legitimate military objective (according to the IHL definition provided in article 52(2) of API). In case of doubt as to the civilian of military nature of the target it will be presumed to be civilian (API, arts. 50(1) and 52(3);

-They must take all feasible precautions in the choice of means and methods of attack to avoid, and in any event minimize, loss of civilian life, injury to civilians and damage to civilian objects;

-They must refrain from deciding to launch an attack which can be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

-They must cease or suspend such bombardment or attack if it becomes apparent that the objective is non-military or is subject to a specific IHL protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

-They must provide effective advance warning, in case of bombardments or attacks likely to affect the civilian population, unless circumstances make this impossible.

If they have a choice between several military targets to achieve a similar military advantage, they must choose the one that is likely to cause the least danger to civilian lives and to civilian objects when attacked.

These various prohibitions and rules raise numerous questions of interpretation and application in concrete situations of armed conflict. The relevant caselaw of the International Criminal Court (ICC) is discussed in more detail in the following chapters ➔ Attack ▸ Duty of commander ▸ Military necessity ▸ Military objective ▸ Proportionality

In addition to these obligations relating to the use of armed forces, IHL recalls the obligations of parties to a conflict acting as a detaining power. They must ensure that persons in their custody are protected from the effects of hostilities. For example, camps for prisoners of war and places of internment must have shelters against aerial bombardment and other hazards of war (GCIII, art. 23; GCIV, arts. 84 and 88 and CIHL, rule 121).

The Rome Statute of the ICC, which was adopted on 17 July 1998 and entered into force on 1 July 2002, reaffirms that such attacks constitute war crimes when committed in international or non-international armed conflicts. It should be noted, however, that the Rome Statute only refers to the word “bombardment” in relation to its definition of crimes applicable to international armed conflicts and not to those applicable to non-international armed conflicts (art. 8(2)(b)(v) of the Rome Statute).

The Rome Statute also states that in some circumstances, such indiscriminate bombardment could lead to the commission of crimes against humanity when committed either in an international or a non-international armed conflict. Indeed, widespread or systematic destruction of civilians objects (including housing) can also triggers the crimes of deportation or forcible transfer of population (art. 7(2)(d) of the Rome Statute) if it is demonstrated that “one or more acts that the perpetrator has performed produced the effect to deport or forcibly transfer the victim” ( Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang , Case no. ICC-01/09-01/11, Decision on Confirmation of Charges , 23 January 2012, para. 245). Furthermore, the intentional and severe deprivation of the fundamental right to housing in violation of international law through the forced displacement (or transfer) of a population, can also satisfy the criteria for the commission of the crime of persecution outlined in article 7(2)(g) of the Rome Statute (see also CIHL, rule 129).

With the urbanisation of war, the destruction of civilian objects as a result of armed conflict has been on the rise. Systematic, or widespread bombardment of housing, civilian objects and infrastructure are strictly prohibited by IHL, international criminal law and human rights law. In his July 2022 report, the United Nations Special Rapporteur on adequate housing called for the recognition of such severe violations of international law, which have been committed in a number of conflict-affected countries in various regions of the world as a distinct crime under international criminal law that he labelled as “domicide”. The crime of domicide would refer to the deliberate destruction of the physical structures of homes and basic infrastructures in a manner that renders them uninhabitable, but also to the systematic violation of the right to housing in violation of international law. The Special Rapporteur emphasised that the destruction of houses in violent and armed conflicts goes beyond mere collateral damage and that it is not only systemic but systematic. Consequently, there is a need to consistently prohibit and punish the destruction of homes. Referring to the tactics used during the Holocaust and the wars in Bosnia and Herzegovina, as well as in Rwanda, the Special Rapporteur explained how domicide and genocide are inextricably linked when the destruction of homes, for example through bombing, is used to bring about the physical destruction of the victim group. The crime of domicide constitutes a violation of human rights in itself and can be a collaborative process with other crimes such as genocide.

➔ Attacks ▸ Deportation ▸ Duty of commanders ▸ Genocide ▸ Methods (and means) of warfare ▸ Military necessity ▸ Military objectives ▸ Persecution ▸ Population displacement ▸ Proportionality ▸ Protected objects and property ▸ Protected persons ▸ War ▸ War crimes/ Crimes against humanity ▸ Weapons