P59∼77
P5∼20
Korean Civilians as a Permissible Cost of War: International Humanitarian Law on Aerial Bombardment in the Korean War* ∗
Vincent Hsia**
Abstract
In 2007 and 2008, the Truth and Reconciliation Commission of the Republic of
Korea (Commission) claimed that the United States had violated International Humanitarian Law (IHL) in three cases of aerial bombardment of South Korea: Wolmi-do, Sansung-dong, and Gokgyegul Cave. Legal analysis, as conducted in this research paper,
however, shows that the United States did not violate the law of war. A detailed analysis
of the law of war during the Korean War reveals that certain modern legal principles,
like the principle of proportionality in regards to civilian casualties, cannot be applied
to incidents during the Korean War. Furthermore, an analysis of the three cases indicates that military necessity permitted the United States to conduct the three aerial
bombardments. The research aim here is to provide additional information before the
likely requests that will be issued by the Commission at the end of 2009 for compensation and an apology from the United States.
Keywords: Law of War, International Humanitarian Law, Aeriel Bombardment, Truth
and Reconciliation Commission, Korea War
I. Legal Analysis
As we begin the legal analysis, there needs to be an understanding of what IHL is.
There are two types of IHL, Jus ad Bellum (just war) and Jus in Bello (law in war). For
the most part, we will be working with law in war, which deals with restraint in war,
especially through the restriction of permissible means and methods of warfare (Best,
1994). It is a fundamental principle of the law of war that the right of a belligerent to
inflict damage is not unlimited (Best, 1994: 253). The law in war, however is in no way
* I would like to cordially thank Dr. Steven Kim, Miss Alexandra Kim, and Dr. Hee-Kyung Suh from the
Truth and Reconciliation Commission of the Republic of Korea for their continual support during my research.
** Vincent Hsia is a dual degree M.A. candidate at Korea University and American University. E-mail: [email protected].
60 • Korea Review of International Studies intended to prevent war but is intended to limit the effects of armed conflict when war
does occur (Murphy, 2006: 455). As we will show, the law of war also does not unconditionally protect civilians. Instead, it takes into account the practical application of the
law in war. The success of the law of war and its ability to limit civilian casualties lies
in a state’s willingness to comply with IHL. A state follows the law of war not necessarily for moral reasons but because of the military advantage that it provides (Keith,
1999: 1127). Such a military advantage may be critical to winning wars in a more expedient, militarily effective, and therefore less costly manner, especially in regards to the
loss of civilian and military lives.
This section aims to establish the applicable IHL regarding aerial bombardment
during the Korean War. IHL applicable to aerial bombardment can be divided into two
sections, that of military necessity and proportionality. The purpose of this legal analysis
is to provide an objective evaluation of IHL and to create a logical step by step method
for determining IHL violation in the aforementioned three cases of aerial bombardment.
1. Military Necessity
IHL regarding aerial bombardment is not complex, and particularly in the period
of time when the Korean War took place, few laws existed that were applicable. The
1907 Regulations is still the most recent conventional law regarding aerial bombardment, with Article 25 remaining as the only conventional law specifically designed to
include aerial bombardment (Carnahan, 1975). Article 25 of the 1907 Fourth Hague
Convention states, “attack or bombardment; by whatever means, of towns, villages,
dwellings or buildings which are undefended is prohibited”. The “by whatever means”
applies directly to aerial bombardment (Carnahan, 1975: 43). Especially relevant to this
research paper is also the key word “undefended”. A village or town, according to British and American military law, is considered defended if there is simple occupation by
enemy forces or even the presence of such forces in transit through the town (ibid).1 A
defended town would therefore be a legitimate military objective. Under Article 15 of
the Lieber Code of 1863, bombing, including aerial bombardment, of towns housing or
giving aid to enemy troops is also considered permissible. Particularly in the case where
troops still in the vicinity are capable of “defending” said village, damage incurred by
civilians due to being among or in close proximity to enemy troops is permitted (Royse,
1930). In short, Article 25 of the 1907 Fourth Hague Convention is the single most important IHL regarding aerial bombardment, and its negative definition leaves for a wide
scope of permissible behavior.
The key to “defended” towns being permissible for bombardment is not whether
there were actually troops in the towns at the time of bombardment but rather if, following reconnaissance, to the best of the United States’ knowledge, there were enemy
1
Carnahan cited “10 Whiteman, 1968. Digest of International Law 145, at 414-5 (quoting 1958 British Manual of Military Law); US Dept of the Army, FM 27-10, The Law of Land Warfare, para 40 (1956).” Carnahan stated that “The Legal Advisor of the Department of State adopted the US Army definition of ‘defended town’ in a memorandum of Aug 5, 1943, 10 Whiteman, 1968. Digest of International Law 145, at
434.”
Korean Civilians as a Permissible Cost of War • 61
troops defending the area. Some factors that affect the effectiveness of bombing an
enemy are inaccuracy of bombs and the limits of aerial reconnaissance. The question of
intent is extremely important in aerial bombardment, and what is accidental may actually be excused (Best, 1994: 50). The intention of destroying a “defended” town, and not
whether the town was actually “defended” at the time of bombardment, is the most important argument to make in the defense of each case.
However, any town that is “defended” with a soldier is not necessarily a legally
permissible target. There has to be military necessity2 for such a bombing. At the time
of the Korean War, Article 147 of Geneva IV Convention, which entered into force October 21, 1950, a few months after the Korean War officially started but three weeks
before the first incident of aerial bombardment that we will examine, provided protection for private property based on the principle of military necessity. Article 147 states:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: …The extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.
It is important to note that Article 147 and the related Article 53 of the Geneva
IV Convention only cover damage in occupied territory.3 A South Korean village may
be “defended” by North Korean troops under the American definition, but it does not
necessarily mean that the village has become occupied by North Korean troops, such
that effective control of that territory now belongs to North Korea. The American definition of “defended” is not equivalent to the definition of “occupied.” A territory “defended” by enemy troops may not necessarily lose its effective control to the enemy.
Instead, effective control may still remain with the original nation, South Korea. This
means that Article 147 and Article 53 of Geneva IV Convention apply to the protection
of South Korean private property under South Korean rule, as South Korea, with effective control, occupies the territory.
The importance of Articles 53 and 147 of Geneva IV Convention’s application
means that, while the United States was not a hostile army engaged in a conflict against
South Korea, it would still not be legally permissible for the United States to, without
military necessity, destroy South Korean territory “defended” by North Korean troops,
but still under South Korean control. Any territory under ally rule should be covered by
Article 147 of the Geneva IV Convention against destruction not justified by “military
necessity” during war. The United States therefore cannot bomb areas under the effective control of South Korea without military necessity.
Military necessity, as a limiter of behavior at the time of the Korean War, pro2
3
Article 14 of Lieber Code 1863 required that military necessity involved measures in war indispensable for
securing the ends of the war.
Occupied territory is defined in Article 42 of the Hague Convention IV of 1907 as a territory “placed under the authority of the hostile army” and “extends only to the territory where such authority has been established and can be exercised.”
62 • Korea Review of International Studies vided one clear protection in terms of aerial bombardment. Terror bombardment, where
civilians are the intended targets, could not be justified as militarily necessary after
World War II. Terror bombing was considered by many after World War II to be against
the principle of military necessity due to its ineffectiveness as a military strategy (Carnahan, 1975: 50-1). The Air Doctrine, prevalent in World War II and even onward, argued that targeting civilians would be advantageous militarily as it would destroy industrial production and support for the war thereby bringing it to a quick end (Freedman,
1981). World War II showed that terror bombing often had the opposite effect: It often
made a civilian population possess a stronger, more negative resentment toward those
bombing them, as well as a stronger support for the war (Carnahan, 1975: 51). The targeting of South Korean civilians, on the other hand, could not be justified even by proponents of the Air Doctrine. South Korea was an ally of the United States, therefore
targeting its civilians would not support the United States’ efforts by any increased military advantage. Terror bombings of South Korean civilians, thus was against the principle of military necessity. The United States’ marking South Korean civilians as military targets would be strictly prohibited under IHL.
For each of the three aerial bombardment cases, it needs to be determined that
the civilians were not the primary targets of the bombings. The one sure way to determine if civilians were the primary target is to show that an area was bombed despite
intelligence indicating no enemy troops in the area. Therefore, for these three cases of
aerial bombardment, we must ask whether United States intelligence had reported that
the targeted area contained North Korean troops or not. If bombardment occurred despite there being no indication of North Korean troops, then IHL may have been violated.
Necessity, of course, can go both ways. Article 19 of Lieber Code 1863 specifically states that surprise may be a necessity in warfare. Even though Article 26 of the
1906 Hague IV Convention requires there to be advanced warning before bombardment,
it was meant to be applied with the necessities of warfare in mind, and aerial bombardment is a form of warfare that requires surprise attacks (Carnahan, 1975: 47). Nevertheless, all efforts to limit civilian casualties should be taken, that is, unless it interferes
with military necessity (Fellmeth, 2008). Even though aerial bombardment should come
with prior warning, if the target is mobile enemy troops, and not stationary ones, it is
permissible to give no warning before attacking legitimate military targets that may also
contain civilians (Carnahan, 1975). This is to say that for all three cases of United States
aerial bombardment in South Korea, we must ask whether efforts were taken to limit the
amount civilian casualties, unless military necessity dictated otherwise, keeping in mind
that surprise is often a necessity in aerial bombardment.
2. Principle of Proportionality
IHL during the time of the Korean War lacked one key component that is today a
primary principle of IHL. Unlike proportionality regarding self-defense and excessive
cruelty to troops, proportionality regarding non-combatant casualties did not achieve
conventional or customary status until 1977 (Carnahan, 1975: 47). The principle of pro-
Korean Civilians as a Permissible Cost of War • 63
portionality in regards to non-combatant casualties was first codified in conventional
form under Protocol I Additional to the Geneva Convention of 1949 (Fellmeth, 2008:
456-8; Gardam, 1993: 391). Under Protocol 1, the principle of proportionality made it
so that damage to civilians during an attack even if incidental must be “justified by a
military advantage of corresponding magnitude” (Carnahan, 1975: 56). The principle of
proportionality, as applied to military objectives and its relation to non-combatant casualties, would have limited the use of aerial bombardment, but the principle of proportionality that we know today was still in transition and without international consensus
at the time of the Korean War (Gardam, 1993: 400-1). Simply put, the principle of proportionality regarding civilian casualties was not customary at that time.
Laws not codified but with customary status could be, in theory, supported by the
Martens Clause, first written in the 1899 Hague II Convention with Respect to the Laws
and Customs of War on Land and covers any inadequacies of IHL (Meron, 2000: 78).
Martens Clause is stated in Hague II of 1899 as:
Until a more complete code of the laws of war is issued… populations and
belligerents remain under the protection and empire of the principles of international law, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience.
Because IHL as a body of law is not complete, the Martens Clause was originally
intended to provide residual IHL protection for civilians in occupied territories and was
based on the sources of morality and those of law (ibid: 79). This means that even if a
principle is not codified in IHL and there is no formal obligation, there exists a duty
towards common or international law (ibid: 81).
In an argument over the application of the principle of proportionality with regards to civilian casualties during the Korean War, by applying the Martens Clause,
there can be an avoidance of the retroactive application of said principle (Meron, 2000:
80).4 If the principle of proportionality as related to military necessity and civilian casualties was a fundamental principle, albeit not codified at the time of the Korean War,
then the principle of proportionality would apply in the Korean War, in accordance to
the application of the Martens Clause, as argued by Meron (2000). However, the problem is that the principle of proportionality was not customary at the time. For the Martens Clause to apply, there needs to be justification from the “dictates of public conscience”, as it states.
Ultimately, application of the Martens Clause comes down to the tolerance of the
international community and what was considered as acceptable practice at the time
(Meron, 2000: 81). Public dictate could have been against terror bombardment, as after
World War II such practices were weakly argued as having military necessity (Carnahan,
1975: 50-1). There is no evidence however that public dictate, at the time of the Korean
War, had already evolved into condemning military action based on the proportionality
to civilian casualties. Aerial bombardments inevitably, by nature cause incidental dam4
Meron referred to an example in the Nuremburg trials where Martens Clause was used in response to assertions of retroactive application of law.
64 • Korea Review of International Studies age to civilians in proximity to legitimate military targets (Royse, 1930), and despite the
technology available at the time providing for bombs’ low accuracy rate and the often
large and perhaps disproportionate numbers of civilians killed, aerial bombardment was
still a widely accepted and legitimate military action practiced by states and accepted by
the international community. Condemnation regarding aerial bombardment lay against
the intentional targeting of civilians through terror bombing and not against the use of
aerial bombardment as a general military practice. With the lack of a public dictate arguing for proportionality in aerial bombardment, the application of proportionality in
regards to civilian casualties, at the time of the Korean War is not justifiable under the
Martens Clause.
Using the Martens Clause to argue for the application of proportionality with regards to civilian casualties would be a retroactive application of the modern principle of
proportionality as codified in the 1977 Protocol I Additional to the Geneva Convention
of 1949. It is imperative that we not apply laws retroactively by placing today’s morals
on yesterday’s actions. Retroactive application of law was considered unjust during the
Nuremburg trials as well as the Tokyo Trials, particularly regarding crimes against
peace (Minear, 1971). Thus to retroactively apply modern principles of proportionality
to American conduct during the Korean War would be an unjust application of IHL.
Even if the principle of proportionality applied, violations would have to be determined based on decision making alongside relevent intelligence that was available at
the time, and not the proportionality of the aftermath. Article 57.2 of the 1977 Additional Protocol I to the Geneva Convention prohibits civilian casualties being “excessive in
relation to the concrete and direct military advantage anticipated.” The key word here is
“anticipated” with emphasis on the intention at the time of planning and implementation.
As mentioned before, the question of intent is one of the most important in aerial bombardment (Best 1994: 50). What happens in the aftermath in the case of non-intention
does not violate the modern Principle of Proportionality. The uncertainties of war are
very much a reality, and it would be absurd to apply the principle of proportionality or
of necessity without considering the possibility of inaccurate information.
For each of the three cases to be examined, the modern conception of proportionality does not apply. On a related note, if there were a blatant disregard for military
necessity, such as in the case of terror bombing, then there would be a violation of IHL.
3. Conclusion of Legal Analysis
The first step in determining IHL violation regarding aerial bombardment during
the Korean War is to determine whether there was intelligence indicating that the targeted area contained North Korean troops. If bombardment occurred despite no indication from intelligence reports of North Korean troops in the area, then there was a violation of IHL. The second step is to determine that there were sufficient efforts taken, as
dictated by military necessity, to limit the amount civilian casualties. A key point to
keep in mind is that the element of surprise is a necessity in aerial bombardment (Carnahan, 1975: 47). Lastly, as we established, proportionality in regards to civilian casualties did not apply during the Korean War and, even if it did, like military necessity, em-
Korean Civilians as a Permissible Cost of War • 65
phasis would be on the intentions and not the aftermath.
II. Case Studies
As of April 2009, the incidents at Wolmi-do, Sansung-dong, and Gokgyegul
Cave were the only cases involving the United States and aerial bombardment revealed
by the Commission. In this section, we will apply IHL, as determined by the previous
legal analysis, to each case in order to see whether the United States had indeed violated
it.
1. Wolmi-do
1.1 Background according to the Commission5
Wolmi-do, an island located next to Inchon City, is known as the “North Korean
gateway to Inchon” (Truth and Reconciliation Commission, 2008: 11). The United
States bombed the eastside of Wolmi on September 10, 1950, five days before the Inchon Landing, where the first American troops landed for the Korean War. The bombing
of the eastside of Wolmi-do, where a village was located, was performed in preparation
for fleet bombardment by naval ships on September 13th and 14th, and in turn prepared
the way for the Inchon Landing. Wolmi-do was a strategically important area for the
Inchon Landing Operation.
At least ten victims were confirmed by the Commission to have been killed by
the United States in the Wolmi-do incident. Victim testimonies reveal that the incident
occurred during the daytime, when there was a clear view of the civilian structures and
of civilians in open areas. There was no prior warning given and no attempt at discriminating civilian areas from those of the enemy or between civilians and combatants. Violations of IHL alleged by the Commission include violations of the Principle of Discrimination between civilians and combatants, the Principle of Proportionality and the
Principle of Precaution regarding forewarning before an attack.
1.2 Legal Analysis of Wolmi-do
In determining whether there was intelligence indicating that the targeted area
contained North Korean troops, we need to first look at aerial reconnaissance reports.6
No enemy activity was reported for the village, and it was noted that the village on the
eastside was a village of women and children (Truth and Reconciliation Commission,
2008: 56).7 It was also clear that the village was the intended target and that it was not
incidentally bombed due to the inaccuracy of the weapons (Truth and Reconciliation
5
6
7
Unless otherwise indicated, the following background section is paraphrased from the Truth and Reconciliation Commission 2008: 11-88; and Truth and Reconciliation Commission 2009: 122.
National Archives and Records Administration (NARA) records regarding the three bombardment cases,
which the Commission had access to in 2007, were reclassified in 2008. This research paper uses documents from NARA that were copied by the Commission and stored internally by the Commission.
The Commission cited “MMR, 1951. 1. 17, Box 31, RG 342, NARA.”
66 • Korea Review of International Studies Commission 2008: 27-9).8
To get a better sense of how much enemy activity was on the island however,
when US forces landed on Wolmi-do during the Inchon Landing, Wolmi-do was filled
with trenches and pillboxes (Choe, 2008), indicating that North Korean soldiers had a
significant presence on the island during the aerial bombardment incident. Three days
prior to the Inchon Landing, two days after the aerial bombardments, a fire fight between six United States destroyers and hidden North Korean batteries on Wolmi-do occurred (Associated Press, 1950), further indicating that Wolmi-do was “defended” and
that enemy presence was known on the island, but that reconnaissance could not identify all of its locations. With Wolmi-do only approximately 2km wide and 4km long, the
fact that such a small island had indications of a significant presence of North Korean
soldiers, and that it was known as the “North Korean gateway to Inchon”, allows it to be
strongly argued that the entire island, including the village, was “defended”, despite
there being no victim testimony indicating that North Korean troops were in the village
and no direct reconnaissance indicating enemy activity in the village. The village being
so close, within North Korean defenses, made it a legitimate military target.
Bombing the entire island was necessary, including the east side, where there
were civilians in proxility to enemy troops. Rear Admiral James Doyle was quoted in
the New York Times as saying that the mission of clearing Wolmi Island had to be completed at all costs (ibid). The aerial bombardments that prepared the way for the naval
bombardments were part of the clearing of Wolmi Island. An examination of the air attack reports reveal that missions included the wiping out of all installations on the island
(Truth and Reconciliation Commission, 2008: 27).9 That would have included the village and all its structures and civilians. In response to the allegation of the violation of
the Principle of Distinction and the strafing of civilians, due to military necessity, no
distinction could have been afforded. If there is a military necessity, civilian distinction
may not be able to be taken into consideration (Best, 1994: 51). All possible threats,
including civilians, had to be eliminated prior to the all important Inchon Landing. Despite there being intentional strafing of civilians, the bombing of a “defended” site was
in accordance with the application of IHL established in the prior legal analysis section.
In response to the Commission’s claim that there was a violation of the Principle
of Precaution, military necessity dictated that there would be no forewarning before
bombardment. With mobile troops being the target, surprise was a necessity for an aerial
bombardment (Carnahan, 1975: 47). Military necessity dictated that the North Korean
troops as well as the civilians could not be forewarned.
The Commission claimed that the United States violated the Principle of Proportionality. As established in the prior legal analysis, proportionality with regards to civilian casualties does not apply to the Korean War. Even if the Principle of Proportionality
were applicable during the Korean War, the enormous importance of the Inchon Landing Operation and the need for absolute success outweighed any arguments of dispro8
9
The Commission cited “RG 313, ENTRY-Commander, Marine Aircraft Group 33(MAG-33), Operational
and Historical Records, 1943-1953, BOX: 58, NARA.”
The Commission cited “RG 313, ENTRY-Commander, Marine Aircraft Group 33(MAG-33), Operational
and Historical Records, 1943-1953, BOX: 58, NARA.”
Korean Civilians as a Permissible Cost of War • 67
portionate military advantage to civilian casualties.
The Wolmi-do bombing was a legitimate operation under IHL. It was tragic that
innocent civilians had to be killed, but they were killed out of military necessity and not
because of wrongdoing via violations of IHL by the United States.
2. Sansung-dong
2.1 Background according to the Commission10
The Commission verified that at least 51 residents were killed at Sansung-dong,
Yecheon due to United States bombing on January 19, 1951. Planes dropped napalm
over Sansung-dong village and strafed houses and inhabitants in the area. There were
reports of North Korean forces in nearby Mt. Hakga, but there were no reports of enemies in Sansung-dong village itself. A misreading of the coordinates is assumed by the
Commission as a possible reason for the attacks.
The United States Air Force conducted three bombings in the area. At 2:50 pm
the first bombs were dropped, at 3:40 pm the second, and at 3:55 the third (Truth and
Reconciliation Commission, 2007: 322). Bombs were dropped in a five mile radius,
with concentrations in certain areas. 51 people were confirmed to have died, including
18 men and 33 women, 16 of whom (or about 23% of the casualties) were younger than
10 years of age (Truth and Reconciliation Commission, 2007: 321).
The Commission argues that because there were no enemy troops in the area,
Sansung-dong village was an “undefended village.” There was also no warning beforehand, thereby violating the Principle of Precaution. Furthermore, the Commission argues that many of the victims were women and children, and should have been distinguished by air patrols during reconnaissance. In general, there was no indication of distinguishing between soldiers and civilians, thereby violating the Principle of Distinction.
Because the bombings only killed civilians, the Commission argues that it cannot be
justified under the Principle of Proportionality.
2.2 Legal Analysis of Sansung-dong
The first step in determining an IHL violation regarding aerial bombardments
during the Korean War requires proof that intelligence had indicated that the targeted
area contained no North Korean troops. The Commission clearly showed that Sansung
was not a “defended” village and that even early United Sates reports confirmed that.
Therefore it would seem at first glance that there was a violation of IHL in the Sansungdong incident. As mentioned during the prior law background section on military necessity, intent is one of the most important elements for establishing a violation of IHL in
aerial bombardment (Best 1994: 50). In this case, the difference between focusing on
the intent and focusing on the actual result is the difference between there being an IHL
violation and there not being one.
Early reconnaissance indicated that there were no enemy troops in the area, but it
was nevertheless bombed. There is no definite answer on why this happened. If the
10
Unless otherwise indicated, the following background section is paraphrased from the Truth and Reconciliation Commission 2007: 321-94; and Truth and Reconciliation Commission 2009: 123-4.
68 • Korea Review of International Studies United States were to be given the benefit of the doubt, as the Commission had done by
stating that the mis-identification of coordinates was a possible reason for the bombing
(Truth and Reconciliation Commission, 2007: 322), then the United States bombing of
Sansung was in fact accidental and could therefore be excusable.
As far as the United States pilots (regarding the area near Sansung village that
they bombed) knew and the commanders who issued the order (regarding Mt. Hakga
where there had been sightings of enemy troops and where the bombing should have
taken place) knew there were enemy troops defending the area. The aerial sighting of
civilian structures and civilians would not have necessarily convinced the pilot that
there were no enemy troops present and that the village was not “defended”. Furthermore, from an airplane, even during the daytime, a pilot may not be able to confirm that
people dressed in civilian clothing are indeed civilians and not soldiers in disguise. As
mentioned before, when it comes to military necessity, civilian distinction might not be
able to be given every benefit of the doubt (Best, 1994: 51). It is not an IHL violation to
have bombed a town that one had thought to be “defended” but turned out not not to
have been in the aftermath. There was no indication that the pilot intentionally went
against Article 25 of the 1907 Fourth Hague Convention by attacking an “undefended”
town. In applying said article, there needs to be an understanding of the reality of war.
In short, there was no IHL violation, as intelligence in the eyes of the decision makers
indicated that the targeted area contained North Korean troops. The intent was to bomb
a “defended” area, and the United States followed IHL accordingly.
The fact that civilians were killed does not necessarily make a bombing indiscriminant. Indiscriminant bombardment should not be defined as simply any bombing
that causes incidental damage to civilians (Royse, 1930). Indiscriminant bombings furthermore would imply that there was no regard for military necessity. It would be difficult to argue that there was no military necessity in bombing North Korean hideouts and
villages that contained them. Under Article 15 of the Lieber Code of 1863, the bombing
of towns housing or giving aid to enemy troops is considered permissible. To the pilot,
who may have thought he was bombing a defended village housing North Korean
troops, the bombing was justifiable under IHL. For there to be an IHL violation, there
has to be a clear indication that the United States soldiers intentionally bombed Sansung-dong knowing that it was “undefended,” and therefore bombed it without military
necessity. The evidence does not suggest an intent to bomb an “undefended” area. This
makes Samsung-dong a tragic case of intelligence error and not an IHL violation.
As mentioned in the prior legal analysis section, there needs to be sufficient efforts to limiting civilian casualties, unless military necessity requires otherwise. Military
necessity dictates that aerial bombardments be a surprise if the target involves mobile
enemy troops (Carnahan, 1975: 47). Some scholars today may argue for a strict reading
of Article 147 of Geneva Convention IV, making destruction of private property, including civilian lives, valid only when “absolutely necessary” (International Committee of
the Red Cross, 2005). This would be an idealistic interpretation and sometimes in contradiction with actual state practice. IHL, on the other hand, should be applied with a
consideration to history and actual state practice (Roberts, 1997: 117). Particularly relevant for all three cases of aerial bombardment studied here are actual practices during
the time of the Korean War, so as to avoid retroactive application of modern interpreta-
Korean Civilians as a Permissible Cost of War • 69
tions of law. The fact remains that some civilian casualties have always been tolerated in
war (Gardam, 1993: 400), and civilians being bombed due to inaccuracies of artillery,
human error in reconnaissance, and close proximity to a military target are all inevitable
costs of war and permissible under IHL. The point is that the deaths of innocent people
in war are not always due to insufficient efforts by belligerents in limiting civilian casualties.
Despite the aftermath of the bombing being completely disproportional, there
were no violations of the Principle of Proportionality. Proportionality, like necessity,
focuses on the intention at the time of execution and planning, not on the tragic aftermath. Furthermore, during the Korean War, there could not have been a violation of the
Principle of Proportionality with regards to civilian casualties, as the principle had not
been developed enough to be applicable. All in all, Sansung was a tragedy, or even a
mistake. The United States however did not commit any violations of IHL, and the
United States’ actions indicated adherence to international standards.
3. Gokgyegul Cave
3.1 Background according to the Commission11
The Commission verified that the Yeongchun village and the nearby Gokgyegul
Cave in Yeongchun, Danyang were bombed by the United States Air Force on January
20, 1951. The entirety of Yeongchun was bombed for several hours. In Gokgyegul Cave,
hundreds of refugees died.
Many of the people in Gokgyegul Cave were refugees who had attempted to flee
Danyang but were turned away by a United States refugee blockade and had to relocate
to Gokgyegul Cave for safety. The blockade prevented refugee flow towards the South,
turning away all civilians except for public service workers and police officers (Truth
and Reconciliation Commission, 2008: 293).12 One reason for the blockade was that
there was concern of North Korean soldiers’ infiltration as refugees. Victim testimony
suggests that refugees were forced to turn back from the blockade without any instruction or protection.
The United States’ attack report of the bombing indicates that the village and the
cave were indeed intended targets and not bombed accidentally (Truth and Reconciliation Commission, 2007: 264).13 According to survivor Kim Son Ok, there were still
some North Korean soldiers a day before the bombing, but on the day of bombing itself,
there were none (Truth and Reconciliation Commission, 2007: 264). The total number
of victims is estimated to be over 200, with 167 confirmed.
The Commission claimed that United States forces had violated three responsi11
12
13
Unless otherwise indicated, the following background section is paraphrased from the Truth and Reconciliation Commission 2008, 255-322; and Truth and Reconciliation Commission 2009, 118-9.
The Commission cited “2nd Bn Opn O #3, 32nd Infantry Regiment, Command Report, Jan 1951, Unit Histories 7th Inf Div, 32 Inf Rgt Command Rpts, Box 4522, RG338, NARA.”
The Commission cited “S-3 Journal 20 Jan 51, 17th Inf Regt, Army-AG Command report, 1949-54, 7th
Inf Div. 17th Inf. Regt Box 3222, E-429, RG 407, National Archive and Records Administration (NARA); and G-3 Journal, 20 Jan 51, 7th Inf Division, Army-AG command Report 1949-54 7th Inf. Div. Box
3186, E-429, RG 407, NARA.”
70 • Korea Review of International Studies bilities of IHL at that time:
1) U.S. forces did not conduct any complementary measures to protect the
refugees affected by the blockade. 2) Especially knowing that there were large
numbers of refugees in the area, U.S. forces should have decided to bomb the
cave only after conducting proper reconnaissance verifying that the people in
the cave were indeed North Korean soldiers. Aircraft pilots should do the
same before strafing civilians who are trying to escape from the cave. 3) U.S.
force’s bombing operations and incinerations in the vicinity of the cave and of
Yongchun-myeon, Danyang-gun indicate indiscriminate bombing without
proper regard for refugees in the area (Truth and Reconciliation Commission,
2009: 118-9).
3.2 Legal Analysis of Gokgyegul Cave
The first step to determining IHL violation regarding aerial bombardment during
the Korean War is to see if there was intelligence indicating that the targeted area and
sites contained North Korean troops. What can be confirmed is that on the day of the
bombing, there were 50 North Korean soldiers spotted nearby, north of Yongjin-ri, as
well as another group in the Yeongchun area, where the bombings took place (Truth and
Reconciliation Commission, 2007: 297).14
As indicated by victim testimony, just one day earlier, there were North Korean
soldiers stationed in the village. This means that United States intelligence would not
have been wrong in labeling the village as a “defended” village. As established before,
intent is one of the most important things to remember in determining legality in aerial
bombardment (Best, 1994: 50). That the North Korean soldiers left a day earlier, without the knowledge of the United States, does not change the legitimacy of the United
States’ attack. Villagers were privy to information that the United States military did not
have. Because United States intelligence would still have indicated the target as a “defended” village that was providing housing to the enemy, the decision to bomb the village was a decision to bomb a “defended” site and is therefore in accordance with IHL
standards. Furthermore, under Article 15 of the Lieber Code of 1863, bombing of towns
housing or giving aid to enemy troops is permissible. Incidental civilian casualties due
to proximity to the military target are a part of aerial bombardment and permissible under IHL (Royse, 1930). “Defended” sites are legitimate military targets, and the civilians inside these sites can be bombed incidentally without violating IHL. Based on the
intelligence that the United States had, its military’s decision to bomb what was thought
to be a “defended” village is in accordance with IHL standards.
Like the village, the nearby Gokgyegul Cave was intentionally targeted. Even
without access to all reconnaissance and intelligence reports, it can be established that
there was an indication of North Korean troops present. With reports of North Korean
troops infiltrating as refugees (Truth and Reconciliation Commission, 2007: 284 and
14
The Commission cited “G-2 Journal, 20 Jan 51, 7th Inf Div; G-2 Journal 20, Jan 51, X Corps, RG 338,
NARA.”
Korean Civilians as a Permissible Cost of War • 71
289)15 and with guerrilla warfare in the South, the presence of refugees in a cave signaled the possibility of North Korean troops in hiding. The attack report stated that
enemy troops were killed in the Gokgyegul Cave (Truth and Reconciliation Commission, 2008: 283).16 The report made no reference to civilians being killed. It could have
been possible that the pilots did not realize they had bombed civilians. They may have
assumed that they bombed North Korean soldiers disguised in civilian clothing. Especially with prior concern of North Korean soldiers disguised as refugees, it might not
have been clear from the pilots’ perspective, whether the refugees in the cave were indeed refugees or not. The strafing of refugees outside the cave also falls under the same
pattern of logic. One could not have confirmed from an airplane that the people in civilian clothing outside the cave were indeed refugees. Military necessity in actual warfare
does not always allow soldiers to give the benefit of the doubt (Best, 1994: 51), and this
explains how some refugees could have been strafed out in the open- all were legitimate
military targets as possible enemies by being in or near what the United States believed
to be a “defended” cave.
If the United States had not limited civilian casualties as military necessity had
allowed, then there would have been a violation of IHL. The possibility of the people in
the cave being refugees was always there, but military necessity did not allow for further confirmation. At the time of the bombardment, outside the cave, there were pack
animals, household goods, and oil drums, all of which could also have belonged North
Korean soldiers. There was nothing that could without a doubt have told pilots that the
refugees were not soldiers in disguise. Assuming that the United States commanders
used military advantage as the primary factor for deciding to bomb the cave, the United
States would not have willingly bombed the cave knowing that it contained only refugees who had no military value. The decision to bomb must have been based on the
assumption that there could have been North Korean soldiers in the cave. There is no
conclusive evidence that terror bombardment, especially against South Korean refugees,
was the intention of the United States military in the bombing. Intelligence reports on
the other hand had indicated North Korean troops in the area, and, in fact, the village of
Yeongchun had North Korean troops stationed there. It can therefore be concluded with
some certainty that the United States intentionally bombed what they thought to be a
“defended” cave. It cannot be concluded that the United States, in bombing Gokgyegul
Cave, violated IHL’s prohibiting of the intentional bombing of “undefended” areas.
In response to the Commission’s allegation that the United States violated IHL
by not conducting adequate reconnaissance “verifying that the people in the cave were
indeed North Korean soldiers” (Truth and Reconciliation Commission, 2009: 118-9),
military necessity did not allow for United States forces to go to villages on foot, conduct one on one interviews and surveys, to determine exactly how many North Korean
soldiers, if any, are in the area. Aerial reconnaissance is sometimes the only means for
15
16
The Commission cited “Gordon L. Rottman, Korean War Order of Battle, Praeger Publishers, 2002: 7-9,
13, and Commanding General Daily Historical Report, 3 Jan 51, Matthew B Ridgway Papers, 8th US
Army Series 3 Official Papers, Box 70, USAMHI, 안동 MBC 기증본.”
The Commission cited “G-3 Journal, 20 Jan 51, 7th Inf Division, Army-AG command Report 1949-1954
7th Inf. Div. Box 3186, E-429, RG 407, NARA.”
72 • Korea Review of International Studies reconnaissance. North Korean soldiers in civilian clothing and practicing guerrilla warfare could not have been automatically given immunity due to their dress. For this reason, one needs to bear in mind the limitations of reconnaissance, and that IHL is honored only to the extent that it is practical (Parks, 1982). As mentioned before, the line
between protecting civilians and the sometimes conflicting military effectiveness remains to this day to be clearly defined (Gardam, 1993: 400). Were war more ideal with
no guerrilla tactics and with all soldiers clearly distinguished by uniform, then there
would be no doubt as to who was a civilian and who was not. With regards to civilian
distinction, the bombing of the cave and the village was done in accordance with IHL
standards.
In response to the Commission’s allegation that the United States forces violated
IHL by not providing enough measures to protect refugees affected by the blockade, it
could be argued that military necessity and concern for military effectiveness made it
impossible for South Korean refugees to be given protection. With the intervention of
Chinese forces not long before, the United States was in a defensive position and trying
to prevent the further advancement of North Korean forces into South Korea (Truth and
Reconciliation Commission, 2009: 118-9). With the threat of North Korean infiltration,
enemy advancement, and continuing guerrilla warfare, refugees could not be brought
inside safer areas under United States protection. It is stated in a January 8, 1951 United
States report, 12 days before the bombing, that the Danyang area (where Yongchun village and Gokgyegul Cave are located) had been cleared of all refugees,17 thereby indicating that the United States had performed the necessary duties in limiting civilian casualties or at least attempted to do so. The situation of desperation for the United States
meant that the United States could not have afforded to bring refugees inside United
States lines and could not have afforded the loss of military effectiveness by protecting
refugees outside those lines. One thing is for sure, due to the extreme circumstances,
military necessity prevented the United States from providing protective measures to
refugees. The United States did not violate IHL by not providing protection to refugees
outside of their lines of control.
The Commission claims that the United States knew there were large numbers of
refugees in the area (Truth and Reconciliation Commission, 2009: 118-9) and that by
bombing it, they did not have proper regard for civilian lives. In the Commission report,
there was no verification of there being other civilian casualties in the Yeongchun area
besides those in the cave and village. It also cannot be determined whether the United
States knew that there were large numbers of refugees in the cave or that there were
only refugees. Furthermore, it is not clear whether there were other refugees in the area
besides those in Gokgyegul Cave or if the United States was aware of any. The bombing
was carried out in response to reports of North Korean soldiers in the area (Truth and
Reconciliation Commission, 2007: 297).18 There was indeed military necessity in the
bombings, making it so that the bombing of the Yongchun area could not have been
17
18
Taken from Commission archives of “32 Inf. Regiment Command Report, Jan. 1951, AG Section, 32nd
Inf.Reg ,AG Command Report, Box 3252, E-429, RG407, NARA.”
The Commission cited “G-2 Journal, 20 Jan 51, 7th Inf Div; G-2 Journal 20, Jan 51, X Corps, RG 338,
NARA.”
Korean Civilians as a Permissible Cost of War • 73
wonton or indiscriminant.
The bombing of Gokgyegul Cave and Yeongchun village resulted in no enemy
casualties but instead hundreds of civilian casualties. IHL, however, was followed accordingly by the United States, and the fact that enemy soldiers had moved without the
United States’ knowledge did not in any way make the bombings illegitimate. The incorrect assumption that the refugees in the cave were North Korean soldiers was indeed
unfortunate, but it was not an IHL violation. Most likely, the United States intended to
bomb a “defended” site. It cannot be concluded that the United States violated IHL by
attempting to terror bomb South Korean refugees. The United States neither indiscriminately bombed nor disregarded South Korean civilians. What this cases shows is the
tragic and inevitable cost of war, where innocent civilians die despite adherence to IHL.
4. Conclusion of Cases
The bombardment of defended towns has always been controversial (Best, 1994:
37), but the case analyses conducted here make strong arguments that the United States,
based on legal principles and codified laws during the Korean War, did not commit any
IHL violation with these three cases.
Broad legal principles such as the Principles of Distinction, and Precaution cannot be absolutely applied or, in the case of the Principle of Proportionality, cannot be
retroactively applied. All of these principles have to be applied with consideration to
military necessity and securing the ends of the war. As the case analyses have shown,
military necessity permitted the bombings. What necessity permits are attacks necessary
to prevail, even if such attacks would be unlawful otherwise (Fellmeth, 2008: 456). It is
important to note that states follow the law of war not necessarily for humanitarian reasons but because following it makes for the effective use of military resources, helping
to end war and the achievement of victory in an expedient manner, thereby ultimately
saving both civilian and military lives in the long run (Keith, 1999: 1127). In short, it is
good military strategy to follow the law of war. If the law of war had no consideration
for the realities of war, then it would be ineffective in regulating the conduct of war,
with few or no states actually willing or able to adhere to it.
In all three cases, it is clear that the United States did not intentionally target civilians or conduct terror bombing on Korean civilians. Furthermore, the law of war does
not unconditionally protect civilians, and by closely examining each case and applying
IHL as determined appropriate in the legal analysis section, we have concluded that
there is no legal support for the Commission’s argument that the United States committed violations of IHL. In the next section, we will discuss how the Commission should
then best proceed in their final report on recommended reconciliation.
III. Recommendations
The fundamental principle in a truth commission is the belief that truth, justice,
and reparation leads to peace, which all nations need in order to move forward (Ball,
74 • Korea Review of International Studies 2002: 48). There are lessons to be learned from these three tragic incidents. The future
implications of an effective reconciliation are a stronger Korea and a respect for the past
so that these tragic incidents will never again be repeated. As the first commission of its
kind in East Asia (McCormack and Kim, 2009), the Truth and Reconciliation Commission’s efforts are particularly far reaching, setting an example for Asia and the world to
follow. Towards the end of 2009, at the end of the Commission’s four year existence,
there will be a final report calling for reconciliation and a possible apology from the
United States (Truth and Reconciliation Commission, 2009: 49). Without legal backing
for the Commission’s claims on the three cases, there is a very low likelihood that reconciliation, especially in the form of compensation and an apology from the United
States, will succeed.
In the similar case of Nogunri, there were also allegations that the United States
had violated IHL during the Korean War. The United States responded to the allegations
with a 2001 report entitled the “Statement of Mutual Understanding between the United
States and the Republic of Korea on the No Gun Ri Investigations.” Alexis Dudden
(2008) argued that the United States in that report simply affirmed the “justness of the
American military’s cause” (Ibid: 103). It is important to note that the United States’
response came only after a Pulitzer Winning report by the Associated Press uncovering
the Nogunri incident and after a massive public outcry in Korea. For the three cases of
aerial bombardment here, there has been no massive outcry to signal a response by the
United States. Furthermore, there is also no legal backing to help demand that the United States offer a direct and formal apology. So far there has been no response from the
United States on these three cases, and it is not likely that there will be one in the near
future.
The survivors of Nogunri waited for over fifty years, keeping silent about their
experiences, for fear of being labeled communist sympathizers by past authoritarian
regimes in Korea (Kim, 2000: viii). The aerial bombardment victims who survived have
also waited fifty years. For the Nogunri incident, the United States never formally apologized, expressing only “regret”,19 and even a promised memorial for all casualties of
the Korean War, not just Nogunri, was canceled due partly to disagreements between the
United States and the surviving victims over the purpose of and the exhibits in the memorial (Dudden, 2008: 104). What the Nogunri incident has shown is that victims will
likely not get what they want. Furthermore, international state to state apologies in East
Asia have had little to no success in promoting reconciliation (Dudden, 2008). In order
to truly promote reconciliation, an alternative set of recommendations are needed.
Understandably, the South Korean government has a responsibility towards its
people and towards those who have died. Since it is unlikely that United States will aid
in the reconciliation aspect, the burden of responsibility rests on the South Korean government. For an implementation of reconciliation, the Commission does not actually
19
After a public outcry against the United States’ “Statement of Mutual Understanding between the United
States and the Republic of Korea on the No Gun Ri Investigations”, President Clinton officially expressed
“regret” over the Nogunri incident (Kempster, 2001). Clinton’s statement can be accessed here http://
seoul.usembassy.gov/clinton_statement.html. “Regret” however was not enough for many victims. Further public outcry made Clinton to say informally, that he was “deeply sorry” (People’s Daily, 2001).
Korean Civilians as a Permissible Cost of War • 75
have the power to begin such procedures (Ibid: 47-9). The Commission can only make
recommendations to the South Korean government, who then decides whether to implement it or not (ibid). With the current Lee Myung Bak administration, there have
been efforts to shut down the Truth and Reconciliation Commission and erase the history that the Commission and other smaller and more specific commissions in Korea have
uncovered (Cumings, 2009; McCormack and Kim, 2009). The increasing unpopularity
in the Korean government of the Commission’s work makes it unlikely that the South
Korean government will take on the necessary responsibility proposed by the Commission.
It is this report’s recommendation that there be a re-evaluation by the Commission of the reconciliation proposal for the end of 2009, taking into consideration this
report’s findings in IHL.
IV. Conclusion
As the Commission has verified in the three cases, innocent civilians were killed
by the United States military, in some cases unintentionally and in others out of military
necessity. A detailed legal analysis shows that the United States did not violate IHL. The
legal conclusions may not be what the Commission or the surviving victims would have
desired, but they highlight the fact that innocent people die in war, even when there is
an adherence to the law of war. War is a primary cause of human suffering, and as the
Commission’s efforts resonate across East Asia and the rest of the world, so too will the
realities of war resonate loudly for everyone to hear and learn.
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