Shooting At Paratroopers Is It A War Crime

Shooting at paratroopers while they are descending has been a contentious issue in the realm of international humanitarian law (IHL) and the laws of war. The question of whether such actions constitute a war crime is not straightforward and depends on a nuanced understanding of the applicable legal principles and the specific circumstances of each situation. This article delves into the complexities surrounding this issue, examining the relevant legal frameworks, historical precedents, and the arguments for and against considering such acts as war crimes.

Understanding the Laws of War and War Crimes

To determine whether shooting at paratroopers is a war crime, it's essential to first understand the fundamental principles of the laws of war, also known as international humanitarian law. This body of law seeks to minimize human suffering during armed conflict by establishing rules governing the conduct of hostilities. The primary sources of IHL are the Geneva Conventions of 1949 and their Additional Protocols, as well as customary international law.

Key principles of IHL include:

• Distinction: Parties to a conflict must distinguish between combatants and civilians, and attacks may only be directed at military objectives. This principle is enshrined in Article 48 of Additional Protocol I to the Geneva Conventions, which states that parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
• Proportionality: Even if an attack is directed at a legitimate military objective, it must not be disproportionate, meaning the anticipated military advantage must outweigh the expected incidental harm to civilians or civilian objects. Article 51(5)(b) of Additional Protocol I prohibits attacks which 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.
• Military Necessity: Actions taken during conflict must be necessary to achieve a legitimate military objective. However, military necessity is not a blank check, and it must be balanced against the principles of humanity and proportionality.
• Humanity: This principle prohibits the infliction of suffering, injury, or destruction not actually necessary for the accomplishment of legitimate military purposes.

War crimes are serious violations of the laws of war that incur individual criminal responsibility under international law. The Rome Statute of the International Criminal Court (ICC) defines war crimes in Article 8, encompassing a wide range of acts, including grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict.

The Specific Case of Paratroopers: A Legal Grey Area

The question of shooting at paratroopers is a complex one because it sits at the intersection of several legal principles. On one hand, paratroopers are combatants, and combatants are generally legitimate targets during armed conflict. On the other hand, paratroopers descending by parachute are in a particularly vulnerable position, and the act of shooting at them could be seen as inhumane or unnecessary.

The key legal document that addresses this issue is Article 42 of Additional Protocol I to the Geneva Conventions. This article states:

1. No person parachuting from an aircraft in distress shall be made the object of attack during his descent.
2. Upon reaching the ground in territory controlled by an adverse Party, a person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act.

This article provides a clear prohibition against attacking paratroopers who are parachuting from an aircraft in distress. The rationale behind this provision is that individuals forced to parachute due to an aircraft malfunction or other emergency are in a helpless situation and should not be targeted. However, the article does not explicitly address the situation of paratroopers who are jumping from an aircraft as part of a military operation.

This omission has led to considerable debate and differing interpretations. Some argue that the silence of Article 42 on this point implies that paratroopers involved in military operations are legitimate targets during their descent. They contend that these paratroopers are combatants actively participating in the conflict and, therefore, do not fall under the protection afforded to those parachuting from aircraft in distress.

Others argue that shooting at paratroopers during their descent is a violation of the principles of humanity and military necessity. They argue that paratroopers in the air are unable to effectively defend themselves and pose no immediate threat. Therefore, targeting them during this vulnerable phase of their operation is unnecessary and inflicts undue suffering. This view often emphasizes that once the paratroopers land and have the opportunity to fight, they become legitimate targets, but not before.

Arguments for and Against Considering Shooting at Paratroopers a War Crime

To fully grasp the debate, it’s important to consider the arguments from both sides:

Arguments Against Shooting at Paratroopers

• Vulnerability and Incapacity: Paratroopers in descent are exceptionally vulnerable. They lack maneuverability and cannot effectively return fire, rendering them nearly defenseless. This vulnerability raises questions about the necessity and humanity of targeting them during this phase. Shooting at them is seen as akin to shooting fish in a barrel.
• Principle of Humanity: Opponents of shooting at paratroopers emphasize the principle of humanity, which prohibits inflicting unnecessary suffering. They argue that targeting individuals who cannot defend themselves violates this principle. The act of shooting at a defenseless paratrooper is seen as a gratuitous act of violence.
• Surrender Opportunity: Some legal scholars argue that, similar to Article 42's provision for those parachuting from aircraft in distress, paratroopers involved in military operations should also be given an opportunity to surrender once they land. This perspective suggests that targeting them during descent preempts any chance of surrender and violates the spirit of the laws of war. Providing an opportunity to surrender aligns with the principles of minimizing harm and unnecessary violence.
• Military Necessity: Critics question the military necessity of shooting paratroopers in the air. They argue that the military advantage gained by eliminating a paratrooper during descent is minimal compared to the potential violation of humanitarian principles. The military necessity argument often clashes with the ethical considerations of targeting defenseless individuals.

Arguments For Shooting at Paratroopers

• Combatant Status: Proponents of targeting paratroopers emphasize their status as combatants actively involved in a military operation. They argue that combatants are legitimate targets under the laws of war, and paratroopers do not lose this status simply because they are in the air. Combatant status is a key determinant in the legality of targeting individuals during armed conflict.
• Military Objective: Paratroopers are typically deployed to achieve specific military objectives, such as seizing territory, disrupting enemy operations, or conducting reconnaissance. Their mission directly contributes to the enemy's war effort, making them legitimate military targets. Achieving military objectives often justifies the targeting of combatants, according to this viewpoint.
• Risk Mitigation: Shooting paratroopers during descent can reduce the risk they pose once they land and become fully operational. Eliminating them in the air can prevent them from engaging in combat, capturing territory, or causing other harm. Mitigating risks to one's own forces is a common justification for targeting enemy combatants.
• Lack of Explicit Prohibition: Supporters of this view point out that there is no explicit prohibition in international law against shooting at paratroopers involved in military operations. Article 42 of Additional Protocol I specifically protects those parachuting from aircraft in distress, but it does not extend this protection to paratroopers jumping as part of an operation. The absence of explicit prohibition is a significant legal argument in favor of allowing the targeting of paratroopers.

Historical Precedents and State Practice

The historical practice of states on this issue is mixed, and there is no clear consensus. During World War II, for example, there were instances of both sides shooting at paratroopers, and there were also instances of refraining from doing so. The practice varied depending on the specific circumstances, the policies of the military commanders involved, and the prevailing norms of the conflict.

Some military manuals and legal opinions suggest that shooting at paratroopers is permissible under certain conditions. For example, the U.S. Army's Law of Land Warfare states that