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Many contemporary armed conflicts are shaped by the reliance on airstrikes using traditional fighter planes or remotely piloted drones. As accounts of civilian casualties from airstrikes abound, the ethics and legality of individual airstrikes and broader targeting practices remain contested. Yet these concerns and debates are not new. In fact, a key attempt to regulate aerial warfare was made 100 years ago. In this article, we approach the regulation of aerial warfare through an examination of the 1923 Hague Draft Rules of Aerial Warfare and the contemporary scholarly discussion of these rules. While the Draft Rules have never been converted into a treaty, they embody logics of thinking about civilians, technologies of aerial warfare, and targeting that are still resonating in contemporary discussions of aerial warfare. This article argues for a contextualized understanding of the Draft Rules as an attempt to adapt International Humanitarian Law (IHL) to the new technological realities while maintaining distinctions between different kinds of spaces and non-combatants. We argue that the Draft Rules prefigure later debates about the legality of aerial bombing by tacitly operating with a narrow understanding of the civilian and by offering a range of excuses and justifications for bombing civilians.
The First World War is a good example of the dialectic of norm, conflict and revision and of the passions and polemics that accompany it. During the war, the habitual charge that the enemy-committed atrocities was translated into charges that could be tried under international law. The norms of warfare in the pre-war period served to judge the escalating violence of the war but also to blame the enemy for the worst transgressions, which occurred in various contexts, war on land, invasions and occupations, the home front, war at sea and war in the air. Land warfare immediately revealed that the protected status of the legitimate combatant, the soldier or sailor who was wounded or taken prisoner, was far from secure. The French accused the Germans of using the Red Cross flag as a ruse in battle and of executing an immense number of wounded soldiers.
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