Introduction
Throughout history,
nations have strived to manage and control activities within their borders,
with the ultimate principle of border control being ingrained in sovereignty.
As sovereign entities, States possess the absolute right to defend their
sovereignty on land, at sea, and in the air.[1] Airspace sovereignty is a
foundational principle of international law that constitutes the cornerstone of
aviation law, and grants each State the exclusive authority to control its air
territory, treating any unauthorized aircraft as intruders. The principle of
airspace sovereignty is established in Article 1 of the Chicago Convention on
International Civil Aviation (1944), which states: “The contracting States
recognize that every State has complete and exclusive sovereignty over its
airspace.”[2]
The developments in military aviation technology have defied this concept and
introduced complexities in maintaining and enforcing airspace sovereignty.
These tools play a major role in psychological warfare. The use of sonic boom
produced by a military jet as a tool of terror against civilians is emerging as
a significant violation of airspace sovereignty and International Humanitarian
Law (IHL). The main characteristic of these tools is that they constitute a
major aspect of psychological warfare.
The use of military jets
in violating the airspace of sovereign nations is a subtle topic of universal
importance, as it not only threatens territorial integrity but also
interrogates the effectiveness of international legal frameworks in dealing
with such invasions. In the same vein, sonic boom, a spinoff of supersonic
flight, appears to be in today’s international armed conflicts a psychological
tool in warfare employed as a tactic to terrorize civilians. This method
utilizes the powerful noise produced by aircraft exceeding the speed of sound
to create fear and distress among civilian populations, as evidenced in recent
conflicts.
To date, insights from
the literature around the use of sonic booms in psychological warfare are few.
This paper addresses a crucial knowledge gap in Public International Law and
International Humanitarian Law studies concerning the legality of the use of
such tools in psywar. Research work revolving around topics on military jets
and airspace sovereignty provides a comprehensive overview of the subject and
serves as a solid foundation for our research. On the topic of airspace
sovereignty, the literature discusses challenges posed by military violations
of sovereign airspace, highlighting the need for a refined consideration of
international law in the framework of modern aviation technology. The research
on the psychological impact of sonic booms in conflict zones reveals that while
the physical damage caused by sonic booms is commonly negligible, their
psychological effects are profound. K. Osta (2024) discusses in his recent
publication on “The Psychological Impact of Israel’s Sonic Booms Over Lebanon,”[3]
the use of supersonic flyovers as psychological warfare. Sonic booms can prompt
fear, anxiety, and traumatic recalls, mainly in regions with recent or ongoing
conflicts. In Lebanon, sonic booms have intensified the shared trauma of a
nation still recuperating from past wounds, triggering signs similar to post-traumatic
stress disorder among the population. Steve Goodman (2012) explores in “Sonic
Warfare: Sound, Affect, and the Ecology of Fear,”[4] the
concept of sonic warfare and its implications on populations. Other authors
like Robert Traynor (2023) in “Sonic Warfare: Noise as a Weapon” have analyzed
the weaponization of sound. Additionally,
Rashi, T., & Schleifer, R. (2023), in “The Ethics of Psychological Warfare
– Lessons from Israel,” supply a perspective on the ethical considerations of
such tactics. On the topic of airspace sovereignty, the article by Chrystel
Erotokritou (2012) on “Sovereignty Over Airspace: International Law, Current
Challenges, and Future Developments for Global Aviation” provides a
comprehensive look at the evolution of airspace sovereignty and its challenges.
Sonic warfare underlines the changing nature of conflict, where the combat
field rises above physical territories to the thoughts and insights of
individuals. The use of sonic booms as a form of psychological warfare serves
to remind those affected of the threat of military aggression and can paralyze
communities with fear. The development of the concept of sovereignty in the air
and the consequences of such violations on territorial integrity and
international relations constitute a priority area.
This article examines, in
the first place, the contemporary understanding of airspace sovereignty under
Public International Law (section 1). It then delves into the rules governing
the use of sonic boom in an international armed conflict, particularly
concerning its legality under International Humanitarian Law (section 2). It
also discusses the global controversy surrounding the use of this weapon in
psywar as a tool against civilians and the applicability of IHL, relying on a
case study from the recent conflict in Lebanon (section 3), and provides a
glimpse into the conclusion, future trends, and recommendations.
1.
Fundamental Principles of Airspace Sovereignty under Public International Law
(PIL)
Sovereignty, a core
concept in international law, originates from Latin terms like sui juris
and superanus,
signifying supreme authority, historically of a prince or king, and now of a
State. A widely accepted definition of sovereignty comes from the 1928 Island
of Palmas arbitral award,[5]
stating that sovereignty between States means independence, which is the right
to exercise State functions exclusively within a portion of the globe. Various
principles and rules of conventional and customary international law stem from
the general principle of sovereignty.
Sovereignty in
international law encompasses three main elements:
- Expression
of Statehood: Having all the attributes of an independent state and being
recognized as such by other states.
- Protection
of National Identity: Maintaining national identity and independence of a
State.
- Expression
of Self-Determination: This includes two aspects: the first is the
Internal Self-Determination, meaning the right of individuals to select
their social, political, and economic systems and decide their degree of
political involvement in governance. The second aspect is External
Self-Determination, taking place, for instance, when resisting colonialism
or apartheid, and advocating for sovereignty over their territory, as well
as their linguistic, socio-cultural, ethnic, and religious interests.
These principles are
explicitly addressed by the 1960 UN Declaration on the Granting of Independence
to Colonized Countries.[6]
Article 1 of the United Nations Charter[7]
emphasizes the significance of social, economic, and cultural relations in
promoting peace and security while respecting the sovereignty and political
integrity of member States based on equal rights and self-determination.
Similarly, Article 1 of both the International Covenant on Civil and Political
Rights (ICCPR)[8]
and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[9]
of 1966 reaffirms the right to self-determination as a fundamental right of all
people allowing them to freely determine their political status and pursue
their development, thereby supporting national sovereignty through autonomy in
political and economic decisions. Additionally, articles 2 and 21 to 24 of the
African Charter on Human and Peoples’ Rights[10]
set forth standards to eliminate all forms of colonialism and promote both
internal and external self-determination as a developmental right for African
peoples by guaranteeing rights related to non-discrimination, control over
resources, development, and promoting peace and security. These provisions
underscore the interconnectedness of civil, political, economic, social, and
cultural rights, which are essential for holistic national development, and
they commonly emphasize self-determination and respect for sovereignty to
create a stable international environment where nations can thrive both
independently and cooperatively.
Sovereignty pertains to
the principle of non-use of force, which is generally prohibited by PIL, except
in cases of self-defense or when authorized by the UN Security Council to
maintain international peace and security. However, in contemporary
international law and practice, the principle of sovereignty is not absolute
due to several recognized exceptions to the general rule against
non-intervention in the internal affairs of sovereign States.[11] The
territorial scope of exclusive sovereignty extends both upwards into space and
downwards to the center of the earth. Within this territory, the State
exercises unlimited monopolistic power. This concept developed alongside rules
prohibiting States from exercising power within the legal territories of other
States. In today’s “one village” world, where commercial air travel is more
prevalent and military aerial conflicts have increased, this legal domain holds
particular importance. International aviation law plays a vital role in
guaranteeing the safety and security of air travel, managing the legal use of
airspace, and resolving disagreements between states. However, does the concept
of airspace sovereignty align with the principles of international law?
The term “air space”
refers to the area where air exists, specifically within the atmosphere,
aligning with the intentions of the drafters of the 1919 Paris Convention.[12]
The English text uses “airspace,” while the French and Italian texts use terms
equivalent to “atmospheric space.”
Essentially,
International Aviation Law regulates a State’s control over its land and nearby
waters. Specifically, a nation’s territorial waters stretch 12 nautical miles
(approximately 22 kilometers) from its shore. The main objective of
international aviation law is to ensure the safety of commercial flights
between states and to manage the use of military jets during conflicts or
emergencies. Therefore, under international law, a country has the authority to
supervise all activities, being military or commercial, inside its surrounding
area.
The issue of airspace
jurisdiction has been a prominent subject in international law for many years.
Despite the unresolved issue of the precise “vertical” extent of territorial
airspace, there is a crucial need for a robust statute that governs all facets
of international aviation law. Such a statute is essential for safeguarding
nations’ rights to preserve their sovereignty and for fostering transnational
order and global harmony.
One of the core
principles of PIL is airspace sovereignty, which grants each State complete and
exclusive control over the airspace above its territory. This principle is
crucial for national sovereignty and is upheld by various international
conventions, including the 1944 Chicago Convention on International Civil
Aviation. The Paris Convention of 1919 and the Chicago Convention of 1944 were
established following two devastating world wars, founding the principles of
aviation law, particularly concerning State sovereignty over airspace. Many
airlines were founded by National Defence authorities and served as strategic
assets for military forces during conflicts. Similarly, a significant portion
of airspace was, and still is, allocated for military use. This division of
airspace between civilian and military users underscores the national security
priorities inherent in the concept of sovereignty. Article 1 of the Chicago
Convention explicitly states that each contracting State has full sovereignty
over its airspace, prohibiting any unauthorized entry or use by other States or
entities. The Paris Convention introduced the concept of airspace sovereignty
and the doctrine of innocent passage, which allows aircraft from contracting
States to traverse each other’s territories under certain conditions. It also
specified that aircraft must be registered with a State to possess the latter’s
nationality.[13]
The Chicago Convention further developed these principles by reaffirming State
sovereignty over airspace and detailing provisions for non-scheduled flights.
These flights may transit or enter another State’s territory without prior
permission, although States retain the right to require a landing.
Additionally, the Convention mandates that aircraft entering a State’s
territory must land at designated customs airports if required by that State’s
regulations.[14]
These conventions ensure that states control their airspace while promoting
international air travel through standardized rules. This framework is
essential for safe international civil aviation, balancing sovereignty with
cooperation.
Despite this, there have
been violations of airspace sovereignty. A notable example is the 2014 downing
of Malaysia Airlines flight MH17[15]
over eastern Ukraine, an area controlled by pro-Russian separatists.[16]
Under the PIL, States are obligated to ensure the safety of civil aviation
within their airspace, as stipulated in the Chicago Convention of 1944.[17]
The incident also raises important questions about State responsibility for the
actions of non-state actors. According to the International Law Commission’s
Articles on the Responsibility of States for Internationally Wrongful Acts
(ARSIWA),[18]
a State can be held accountable for the actions of non-state actors if it can
be proven that the State exercised effective control over them. In the case of
MH17, the Dutch-led Joint Investigation Team concluded that the missile system
used to shoot down the aircraft was transported from Russia and operated by
Russian-backed separatists, implicating Russia in the incident. This finding
aligns with the International Court of Justice’s (ICJ) ruling in the Nicaragua
v. United States case.[19]
Therefore, the MH17 tragedy is relevant in illustrating these principles,
demonstrating how States can be held accountable for failing to prevent
non-State actors from violating airspace sovereignty.
Certainly, all States
have the right to respond to airspace violations. PIL establishes several
essential standards for addressing intrusions into the internal affairs of
States, placing significant emphasis on the principles of sovereignty and
political integrity.[20]
At the heart of these standards is the principle of the prohibition of the
threat or use of force, which is articulated in Article 2(4) of the United
Nations Charter. This article explicitly prohibits the threat or use of force
against the territorial integrity or political independence of any State.
Additionally, Article 2(7) of the UN Charter limits the UN’s ability to
intervene in matters that are fundamentally within the domestic jurisdiction of
any State, except in situations where international peace and security are at
risk. The ICJ further reinforced this principle in the case of Nicaragua v.
USA, ruling that States must abstain from coercive actions that infringe upon
the sovereignty of other nations. Moreover, the Declaration on the
Inadmissibility of Intervention in the Domestic Affairs of States (UN General
Assembly Resolution 2131),[21]
emphasizes the significance of non-interference, asserting that no State
possesses the right to intervene in the internal affairs of another. A
pertinent example of these principles in practice is the international response
to Russia’s annexation of Crimea in 2014, which drew widespread condemnation as
a violation of Ukraine’s sovereignty and territorial integrity. This situation
led to imposing sanctions and other diplomatic measures against Russia.
Together, these standards aim to uphold the sovereignty and political integrity
of States, ensuring that international relations are conducted with due respect
for the autonomy of each nation. An illustration of States’ efforts to protect
and oversee their airspace sovereignty under the PIL concerns the State of
Qatar. In 2020, the ICJ[22]
ruled in favor of Qatar to control its airspace in a diplomatic dispute
involving its neighbors- Bahrain, Saudi Arabia, Egypt, and the UAE.
If a State chooses not to
use the permitted means, it does not necessarily imply that the State views
these means as unlawful. Restraint might indicate a lack of resources or other
practical or humanitarian considerations. There may not be a customary
international law rule on this matter. The Permanent Court of International
Justice in the Lotus Case[23]
highlights the principle of sovereign autonomy, meaning restrictions cannot be
externally imposed on sovereign States. The court further noted that “every
State remains free to adopt the principles which it regards as best and most
suitable.” Therefore, it is more accurate to describe this as a legal right or
privilege for each State to respond. Even without a universally accepted rule
on permissible actions, certain standards of behavior must be followed. This
implies that States possess the legal right to determine their policies and
responses to airspace violations, viewing it as a legal privilege to protect
their sovereignty and national security. The absence of universally accepted
rules on permissible actions in such cases further emphasizes the flexibility
States have in tailoring their responses to specific situations. Despite this
flexibility, States must adhere to certain standards of behavior consistent
with international norms to maintain order and stability. The Lotus case sets a
precedent that State practice and customary international law significantly
shape the legal landscape, reinforcing the importance of State sovereignty and
the legal rights of States to respond to airspace violations.[24]
Violations of airspace
sovereignty can lead to international sanctions and other repercussions, such
as diplomatic protests, economic sanctions, or military actions, depending on
the severity of the breach and the affected State’s response. PIL, particularly
aviation law, places a significant emphasis on State sovereignty and airspace
control, whereby States are accountable for ensuring that their airspace is not
utilized for unauthorized military activities. For instance, if a State
conducts sonic booms over another State’s territory, it may be held liable for
violating that State’s sovereignty as stipulated in the Chicago Convention on
International Civil Aviation.[25]
Affected States can utilize diplomatic channels to register protests and seek
resolutions, as illustrated by the case of Israel’s use of sonic booms over
Gaza in 2005. Human rights organizations monitored this practice and reported
it to the UN, where the UN Special Rapporteur on Human Rights in the
Palestinian Territories condemned the sonic booms for their detrimental
psychological effects on civilians.[26]
Moreover, Palestinian authorities and international organizations employed
diplomatic avenues to challenge the legality of these actions under IHL and
human rights law.[27]
Previously, the historical use of sonic booms in Nicaragua as a tactic of
psychological warfare has established a precedent in international law,
highlighting the urgent need for clearer legal standards and accountability
mechanisms to address the psychological impact of such military tactics on
civilians.[28]
Upholding airspace
sovereignty is essential for maintaining stability and security in
international aviation. International conventions and agreements provide a
framework for cooperation among States to ensure safe and orderly use of
airspace. Any breach of this principle not only undermines State sovereignty
but also endangers the safety of aircraft and passengers. Undoubtedly,
non-compliance with international obligations and standards on airspace
sovereignty can lead to international sanctions and severe consequences, as
violations of airspace sovereignty are seen as acts of aggression or breaches
of the PIL, potentially causing diplomatic tensions and military responses. PIL
prohibits States from threatening or using force in their relations, as
outlined in Article 2(4) of the UN Charter, which is a fundamental norm. This
prohibition is vital for international peace and security. However, States
often act contrary to this, and while the UN Charter permits the use of force
under specific circumstances, many States exceed these limits, indicating
potential shortcomings in the Charter’s rules. For instance, an unlicensed
overflight by a military aircraft violates primary rules and constitutes not
only a breach of sovereign airspace or sovereignty, but also a violation of the
principle of non-intervention and the prohibition on the use of force. If a
military aircraft enters another State’s sovereign airspace without proper
authorization, it may be stopped and recognized, and if necessary, its flight
is terminated.[29]
Does unlicensed
overflight by a military aircraft potentially amount to an armed attack under
Article 51 of the UN Charter? Should the prohibited “use of force” mean only
military force? What would be the legal consequences? The subsequent analysis
will try to answer these questions.
Article 2(4) of the UN
Charter provides that: “All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations”. This article is loaded with substance,
arguably making it the most controversial provision. It seems to forbid only
force directed against the “territorial integrity” or “political independence”
of a State. So, does this mean that States can threaten or use force that is
not against the “territorial integrity or political independence” of other
States? And when is use or threat of force not “inconsistent with the purposes
of the UN”? The general understanding among writers and States is that Article
2(4) only prohibits the use of military force.
The UN General Assembly (GA) Declaration on Principles of International Law
Friendly Relations and Cooperation among States by the Charter of the United
Nations, confirmed by GA Resolution 2625(XXV) of 24 October 1970, provides
that: “No State may use or encourage the use of economic, political or any
other type of measures to coerce another State to obtain from it the
subordination of the exercise of its sovereign rights and to secure from it
advantages of any kind.”[31]
In addition to actual
force, Art. 2(4) prohibits the “threat of force”, which constitutes “a form of
coercion.”[32]
A threat is unlawful under Art. 2(4) if the threatened force would be illegal
when used, and deterrence does not justify a threat to make it legal, as was
clearly stated by the Advisory Opinion of the ICJ requested by the UN General
Assembly on December 19, 1995, and issued by the ICJ in 1996 on the question
whether the threat or use of nuclear weapons was in any circumstance
permissible.[33]
Territorial integrity, especially where coupled with political independence, is
synonymous with territorial inviolability. Thus, a State would be acting in
breach of its obligations under the Charter if it were to invade or commit an
act of force within the territory of another State, in anticipation of an
alleged impending attack or to obtain redress, without the intention of
interfering permanently with the territorial integrity of that State. The
prohibition of paragraph 4 is absolute except for the use of force in
fulfillment of the obligations to give effect to the Charter in pursuance of
action in self-defense consistent with the provisions of Article 51.
Besides, a no-fly zone
means a part, or the whole, of a country’s airspace that is cordoned off either
to that country’s aircraft and/or to those of foreign countries. The 1970
Friendly Relations Declaration, operative paragraph 23, states that: “… No
State or group of States has the right to intervene, directly or indirectly,
for any reason whatever, in the internal or external affairs of any other State.
Consequently, armed interventions and all other forms of interference or
attempted threats against the personality of the State or its political,
economic and cultural elements, are in violation of international law.”[34]
There is no doubt that the reference to “any reasons whatever” is broad enough
to cover such other motives or reasons on which a State may want to rely as a
justification for the use of force against another State.
The use of force by one
State against another without the authorization of relevant international
bodies, such as the UN Security Council, is considered unilateral. Exceptions
to the prohibition on the use of force according to the UN Charter include the
use of force in self-defense (art. 51) and the use of force authorized by the
UNSC (collective security, Chapter VII). The response of the overflown State
must adhere to the basic norms of PIL regarding the use of force. The
deployment of force against military or State aircraft during such breaches is
a delicate matter in times of peace. Article 49 of the Articles on
Responsibility of States for Internationally Wrongful Acts (ARSIWA) outlines
the conditions under which an injured State may take countermeasures against a
State responsible for an internationally wrongful act. The main goal of these
countermeasures is to encourage compliance with obligations under ARSIWA, such
as stopping the wrongful act and providing reparation. Countermeasures are
temporary and should not permanently alter the legal relationship between
States, ensuring they can be reversed. They must also allow for the resumption
of obligations once the responsible State complies, adhering to the principle
of proportionality and maintaining international legal order.[35] The
principles of proportionality, military necessity, and humanity regulate the
use of force when a State claims its right to self-defense to explain shooting
down an aircraft during times of peace.”[36]
Thus, Article 49 of
ARSIWA provides a framework for countermeasures that balances enforcement of
international obligations with proportionality and reversibility. It limits
countermeasures to temporary non-performance aimed at inducing compliance, thus
upholding international law’s integrity while allowing States to address
wrongful acts. States must uphold airspace sovereignty principles to maintain
territorial integrity, ensure airspace safety, and contribute to international
aviation stability and security.
2.
The Use of Sonic Boom in Psywar under International and Humanitarian Law
The early twenty-first
century saw significant shifts in the nature of warfare. Beyond traditional
maritime, air, and land combat, psychological warfare, or “psywar”, has become
a crucial military strategy. This rise is fueled by advancements in information
and communication technologies, such as the web, worldwide real-time
communication, mobile phones, and online social networks. These platforms have
transformed into arenas for conflict, wielding significant influence over
leaders, military forces, and entire populations. Rapid advancements in
military technology may outpace the development of legal frameworks, making it
difficult to regulate new methods of warfare effectively. Democracies are often
reluctant to engage in psychological warfare due to ethical, legal, and public
policy concerns. Ethical issues arise because PSYOP can blur the line between
acceptable military actions and manipulative tactics, similar to totalitarian
propaganda. The complex and unclear legal framework surrounding PSYOP adds to
this reluctance. Additionally, democratic societies value transparency and
truth, which can conflict with the deceptive nature of psychological warfare.[37]
However, in recent years, democracies have increasingly acknowledged the
significance of psychological warfare and have begun to utilize it more
extensively. The emergence of digital communication and social media has
revolutionized the information landscape, and PSYOP is a potent tool in modern
conflicts.[38]
Democracies have acknowledged that neglecting psychological warfare places them
at a strategic disadvantage, particularly when confronting adversaries who
adeptly employ these tactics. As a result, there has been a shift towards
integrating psychological operations into broader military and strategic
frameworks to influence perceptions, attitudes, and behaviors in support of
political and military objectives.[39]
The use of sonic booms in Nicaragua as a form of psychological warfare set a
precedent for how such tactics are viewed under PIL. It highlighted the need
for clear legal standards and accountability mechanisms to address the
psychological impact on civilian populations. Unlike other forms of warfare,
which are subject to international ethical regulations, psychological warfare
lacks such oversight. While IHL allows for information and psychological
operations that are militarily necessary, it imposes restrictions, particularly
on those targeting civilians or military personnel who are hors de combat and likely to cause harm. Among
the several tools utilized in psywar figures, the use of sonic booms exemplifies
a wider trend in psychological warfare, primarily aimed at instilling fear
among the civilian population. The deployment of sonic booms is a component of
Israel’s broader psychological warfare strategy against the Lebanese population.
But what causes a sonic boom, and are military aircraft legally permitted to
break the sound barrier?
A sonic boom occurs when
an aircraft approaches the speed of sound, creating pressure waves in front of
and behind it, similar to a ship moving through water. As the aircraft’s speed
increases, these waves compress and merge into a single wave at Mach 1 (the
speed of sound), resulting in a sonic boom. People on the ground can hear sonic
booms, but the pilot does not, as the boom happens behind the aircraft. The
loudness of a sonic boom depends on the aircraft’s size, shape, and the amount
of air it displaces. There are two types of sonic booms: The N-wave and the
U-wave. The N-wave occurs during steady supersonic flight and is shaped like
the letter “N.” The U-wave, or focused boom, is generated when an aircraft
maneuvers at supersonic speeds, creating a pressure wave shaped like the letter
“U.” Modern supersonic jets typically produce an N-wave boom of one to ten
pounds per square foot, while U-waves can be three to five times stronger. A
sonic boom, which sounds like thunder or a large explosion, is heard on the
ground when this happens. For instance, in the summer of 2023, an Air National
Guard F-16 fighter jet went supersonic while intercepting an unresponsive
aircraft, and the boom was heard across Washington, DC, Maryland, and Virginia
in the United States. Military jets can indeed break the sound barrier if they
can fly at speeds exceeding Mach 1, which is 767.269 mph.[40]
Restricted airspace, such as the area around the Baltimore-Washington
Metropolitan Area established after the September 11, 2001, terrorist attacks,[41]
is known as an “air defense identification zone” (ADIZ). Civilian pilots
sometimes enter this airspace without the required permission. When this
occurs, military jets are scrambled to intercept the potential threat and
escort the aircraft to the nearest airport.
IHL does not explicitly
regulate the use of sonic booms in armed conflict. The use of a sonic boom
could potentially violate several fundamental principles of IHL, such as
proportionality, distinction, and military necessity,[42] and
limitation. The tactics or strategies used in hostilities[43]
aim to conquer the enemy by leveraging existing information, weapons, movement,
and surprise.
PIL has established the
ensuing principles concerning the means and methods of warfare:
a.
The sole legitimate objective of war
is to weaken the enemy’s military, primarily by disabling as many enemy
combatants as possible.
b.
The right to choose methods and means
of fighting is not unrestricted.
c.
It is prohibited to use methods and
means of warfare that cause unnecessary injury or suffering.
d.
When developing, acquiring, or
adopting new means or methods of combat, it must be specified whether their use
is banned in any circumstances.
IHL expressly prohibits
acts or threats of violence that primarily aim to instill terror in the
civilian population. This principle is encapsulated in Article 51(2)[44]
of Additional Protocol I (AP I) to the Geneva Conventions. The concepts of
distinction and proportionality are fundamental within IHL. Specifically, the
principle of distinction, outlined in Article 48 of AP I, mandates that parties
involved in a conflict differentiate between combatants and civilians.
Meanwhile, the principle of proportionality forbids attacks that could inflict
excessive harm on civilians relative to the expected military advantage. The
use of sonic booms, which affect civilians indiscriminately, could breach these
principles, as they do not target a specific military objective.[45]
The principle of proportionality, as outlined in Articles 51(5)(b) and
57(2)(a)(iii) of AP I to the Geneva Conventions,[46]
requires that incidental harm to civilians must not be excessive to the
anticipated military advantage. Sonic booms, which can cause widespread damage
and panic, may result in disproportionate harm. The principle of distinction,
codified in Article 48 of AP I, mandates that parties to a conflict distinguish
between civilian objects and military objectives, but sonic booms affect both
indiscriminately. Military necessity permits measures necessary to achieve a
legitimate military objective, but the use of sonic booms must be justified by
a clear military benefit, which is often not the case.[47]
The principle of limitation requires that warfare methods avoid unnecessary
suffering, and sonic booms, causing psychological trauma and physical damage,
may violate this principle.[48]
An example is the use of sonic booms by Israeli jets over Gaza, criticized for
causing fear and trauma among civilians without significant military benefit, thus
violating the principles of proportionality, distinction, and limitation.[49]
Proscribed methods of
warfare include perfidy, terror, starvation, retaliations against non-military
targets, indiscriminate attacks, harm to the natural environment or
installations comprising dangerous material, orders to leave no survivors,
pillage, taking hostages, exploiting the presence of civilians or their
movements to facilitate hostilities, inappropriate use of typical emblems and
signs, and attacks on persons who are hors de combat or parachuting from a distressed aircraft.[50]
While a sonic boom is
considered a prohibited method of terror to be used by the parties to a
conflict under IHL, effective ‘advance warning’ of attacks that may impact the
civilian population must be given by each party, lest circumstances prevent it.
This rule is a norm of customary international law, applicable in both
international and non-international armed conflicts.[51]
The use of sonic booms as
a method of terror is prohibited under IHL, specifically under Article 51(2) of
AP I to the Geneva Conventions, which bans acts or threats of violence aimed at
spreading terror among civilians. This prohibition is recognized as a norm of
customary international law, applicable in both international and
non-international armed conflicts. Additionally, Article 57(2) of AP I mandates
that effective ‘advance warning’ be given for attacks that may impact the
civilian population, unless circumstances prevent it.[52] The
International Committee of the Red Cross (ICRC) has affirmed these principles
as part of customary international law, supported by State practice and case
law from international tribunals such as the International Criminal Tribunal
for the former Yugoslavia (ICTY).[53]
These rules underscore the obligation of parties to a conflict to protect
civilians and minimize harm, reinforcing the legal framework that governs the
conduct of hostilities.[54]
The obligation to give ‘advance warning’ is a long-standing principle
documented in the Lieber Code, the Brussels Declaration, and the Oxford Manual.
It was first inscribed in the Hague Regulations and is reiterated in Article
57(2) of AP I, with no applicable reservations. This obligation is included in
many military manuals and some national legislation. It is also supported by
official statements and practices, including those of States not party to AP I
to the Geneva Conventions.[55]
For example, during the 1973 Middle East conflict, Egypt, Iraq, Israel, and
Syria responded favorably to the ICRC’s appeal for ‘advance warnings.’[56]
Also, the International Criminal Tribunal for the Former Yugoslavia’s judgment
in the Kupreškić case supports the customary nature of this regulation.
The ICTY’s judgment emphasizes that certain norms, such as the principles of
distinction and proportionality, are widely accepted and uncontested. While the
use of sonic booms as a form of psychological warfare might serve to warn or
intimidate without causing direct physical harm, it must align with the
established practice of issuing warnings to minimize civilian casualties. To be
considered lawful, the use of sonic booms must comply with customary
international law.[57]
3.
The Applicability of IHL on the Use of Sonic Boom as a Tool of Terror against Civilians
in the Case of Lebanon
In August 2024, Lebanon’s
Ministry of Foreign Affairs announced that a complaint was filed following
directives from caretaker Minister Abdallah Bou Habib denouncing the use of
sonic booms by Israel against the Lebanese civilian population as blatant
infringements on its sovereignty and airspace, as well as violations of UN
Security Council Resolution 1701 (2006).[58] The complaint also
highlighted that these breaches contravene IHL, which forbids collective
punishment and psychological intimidation, particularly targeting civilians and
vulnerable groups like children. Since October 7, 2024, Israel has been
creating loud noises that evoke memories of Beirut’s catastrophic port
explosion caused by a fire in a warehouse storing highly combustible ammonium
nitrate on August 4, 2020, devastating large parts of the city, killing over
200 people, and injuring thousands, to instill fear among the population.
Hezbollah and Israel have been involved in a low-intensity conflict. During the
Gaza war, however, Israel has been creating sonic booms by flying aircraft at
low heights over Lebanon, seemingly to intimidate and frighten the population.[59]
In response, Lebanon filed a complaint with the UN Security Council, accusing
Israel of breaching the sound barrier with its warplanes over several areas,
including Beirut. The Foreign Ministry’s statement highlighted these violations
of Lebanese airspace, specifically mentioning the sound barrier breach over the
capital. The complaint condemned these actions as blatant violations of Lebanon’s
sovereignty and UN Security Council Resolution 1701 (2006). It also stated that
such actions contravene IHL, which forbids collective punishment and
psychological intimidation, particularly those aimed at terrorizing civilians
and increasing the suffering of vulnerable groups like children. Israeli
warplanes frequently break the sound barrier over various parts of Lebanon,
causing loud noises similar to bomb explosions and inducing panic among
residents. Tensions between Israel and Hezbollah escalated, especially after
the assassination of senior Hezbollah commander Fouad Shukr in Beirut on July
30, 2024.[60]
Lebanon urged Israel to cease its repeated attacks and to end the war in Gaza,
emphasizing Beirut’s commitment to peace and the implementation of Resolution
1701, urging the implementation of International Resolution No. 2735,
describing the threats as a form of psychological warfare. The Israeli attacks
on southern Lebanon resulted in civilian casualties and forced thousands of
families to flee their homes, coinciding with Israel’s aggression against the
Gaza Strip since October 7, 2023.
To what extent do sonic
booms used against civilians in Lebanon constitute a violation of IHL? Before
assessing the applicability of IHL to the use of sonic boom as a tool of
terror against civilians, the nature of the 2024 conflict between Lebanon and
Israel should be elucidated and classified. The classification of the conflict
presents a complex challenge, primarily due to the ambiguous legal status
governing the relationship between the two entities. Before Israel’s military
escalation, one could reasonably contend that there was no active armed
conflict. Nevertheless, the dynamics thence transformed, necessitating an
exploration of whether this situation qualifies as an international or a
non-international conflict. This distinction is of significant importance,
particularly given that one of the involved parties is Hezbollah, a non-state
actor, as opposed to the Lebanese Armed Forces.[61]
In 2006, the UN
Commission’s view[62]
classified the 2006 conflict between Hezbollah and Israel as an International
Armed Conflict (IAC), based on Hezbollah’s status as a recognized political
party with government representation, its inferred link with the Lebanese
government as a resistance movement, and the direct hostilities against
Lebanon, including a maritime blockade and attacks on civilians and
infrastructure. Also, the legal test of ‘overall control’ established by the
ICTY in the Tadic case for classifying conflicts[63] has
determined that an armed group ‘belongs’ to a State, when there is a
relationship of dependence and allegiance, and overall control by the State,
which includes coordinating and planning military activities but not
necessarily issuing specific orders. By this definition, the conflict between
Israel and Lebanon qualifies as an IAC. In addition, the International
Committee of the Red Cross (ICRC) asserts that an IAC exists whenever one state
resorts to armed forces against another, regardless of the intensity and
duration. While Hezbollah is an integral part of Lebanese society and
government, the mere suggestion of links between Hezbollah and the Lebanese
State does not automatically classify the conflict as international, as it
depends on whether the conditions of the ‘overall control’ test are met.
Applying a similar analysis to the 2024 Lebanese-Israeli conflict, the
relationship between Hezbollah and the Lebanese State does not meet the test
threshold. The conflict between Israel and Hezbollah is a Non-International
Armed Conflict (NIAC) due to the protracted armed violence. However, Israel’s
targeting of Lebanese State infrastructure, civilians, and civilian objects
suggests that Israel resorted to armed forces against the State of Lebanon,
thus indicating the existence of an IAC.[64]
IHL and International
Human Rights Law (IHRL) offer essential frameworks for understanding and
regulating armed conflicts. A key component of IHL is the Geneva Conventions of
1949, particularly Common Article 3, which pertains to NIAC. This article mandates
humane treatment for all individuals who are not actively participating in
hostilities and includes strict prohibitions against violence to life and
person, as well as the taking of hostages. This provision is especially
significant in conflicts involving non-State actors such as Hezbollah.[65]
In circumstances where IHL may not be fully applicable, IHRL comes into play to
regulate State conduct. With the growing frequency of NIACs and the prevalence
of prolonged belligerent occupation, different branches of PIL are becoming
more interconnected. The effects of NIACs on civilian populations are profound,
making it understandable that IHRL is increasingly regarded as an essential
tool for bolstering the protection of civilians in these circumstances.[66]
For instance, the ICCPR mandates that States respect and ensure the rights of
all individuals within their territory and under their jurisdiction, even amid
armed conflict. Article 6 of the ICCPR, which safeguards the right to life, is
particularly relevant regarding Israel’s use of sonic booms and other military
actions that affect civilian populations.[67]
Although these legal frameworks are significant, discussions surrounding the
conflict frequently neglect the full spectrum of human rights law. This gap
highlights the necessity for a holistic legal approach that merges both IHL and
IHRL to guarantee the protection of civilians and respect of international
standards.[68]
The utilization of sonic
booms is indicative of a larger strategy rooted in “psywar.” By frequently
violating Lebanese airspace, Israel sought to instill a persistent sense of
fear and uncertainty among the populace. Lawrence Abu Hamdan,[69]
a sound specialist and the founder of Earshot—an organization dedicated to
analyzing audio to identify human rights violations and instances of State
violence—has extensively documented and illuminated the profound impact of this
tactic. Abu Hamdan noted that following the 2006 war between Hezbollah and
Israel, Israeli fighter jets have repeatedly transgressed Lebanese airspace,
generating sonic booms that serve to intimidate civilians. This phenomenon
functions as an “acoustic reminder” of Israel’s daunting military capabilities.
The noise from military jets and other sounds of blasts can re-traumatize
populations that have survived previous explosions and wars. These sonic booms
are not simply loud noises; they are intentionally employed to instill fear and
anxiety among the Lebanese population. The psychological impact is significant,
as these sounds can evoke memories of past traumas, such as the devastating
Beirut port explosion in 2020.[70]
This re-traumatization can lead to heightened stress, anxiety, and other mental
health challenges among civilians. Beyond their immediate psychological
effects, the systematic deployment of sonic booms can have far-reaching
consequences for civilian well-being. According to several medical studies,[71]
exposure to such loud and sudden noises may heighten the risk of cardiovascular
problems. Over time, recurring jet and blast sounds may increase cardiovascular
stress, and drain calcium deposits in the heart. This stresses the urgent need
for international awareness and intervention to address these tactics and their
detrimental impact on civilian populations.[72]
There are at least three
reasons why Israel employs this technique. Firstly, Israel aims to assert its
air superiority over Lebanese skies, reminding Hezbollah of their dominance.
Secondly, the psychological impact is significant. The goal is to demoralize
Hezbollah’s supporters and instill fear. Thirdly, and less commonly known,
breaking the sound barrier aids in detecting enemy radars. Hezbollah’s radar
systems can detect Israeli planes or missiles through various means, including
heat, emitted communications, and sound. By breaking the sound barrier, an
Israeli pilot can trigger Hezbollah’s radar, revealing their equipment and
transmissions.[73]
About this latter reason, and from the perspective of IHL, the legality of
Israel’s employment of sonic booms is contingent upon the underlying intent and
primary purpose associated with this military tactic. Article 51(2) of AP I to
the Geneva Conventions expressly prohibits “acts or threats of violence, the
primary purpose of which is to spread terror among the civilian population.”
The Arms Trade Treaty (ATT) regulates the international trade of conventional
weapons to prevent misuse and reduce human suffering. While it does not
explicitly address sonic warfare, its principles apply. The ATT requires states
to assess weapons exports to ensure they are not used for human rights abuses
or violations of IHL, which can include sonic weapons. It emphasizes
responsible arms transfers and establishes common international standards,
ensuring emerging technologies like sonic weapons receive the same scrutiny and
control.[74]
Consequently, for an
action to be deemed unlawful under this provision, its principal aim must be
the instillation of fear and terror among civilians. Should Israel reasonably
assert that the primary purpose of utilizing sonic booms is to detect Hezbollah’s
radar installations, this assertion could constitute a legitimate military
objective. The ability to detect and neutralize enemy radar systems is a
recognized military necessity, as such capabilities enhance operational
effectiveness and safeguard Israeli aircraft from potential targeting. In this
context, the utilization of sonic booms would not primarily be aimed at
inducing terror within the civilian population, but rather at fulfilling a
specific military objective. Nevertheless, even if the primary intent is fulfillment
of military objectives, the use of sonic booms remains subject to compliance
with other fundamental principles of IHL, particularly the principles of
proportionality and distinction. The principle of proportionality, as
delineated in Article 51(5)(b) of AP I, mandates that any incidental harm to
civilians and civilian objects must not be excessive concerning the concrete
and direct military advantage anticipated. Also, the principle of distinction,
enshrined in Article 48 of AP I, obliges parties to a conflict to always
differentiate between civilian objects and military objectives.[75]
Therefore, while the detection of enemy radar installations could potentially
justify the use of sonic booms from a military perspective, Israel must ensure
this tactic does not result in disproportionate harm to civilians or civilian
infrastructure. Moreover, the psychological impact on the civilian population,
including the risk of re-traumatization and long-term mental health effects,
necessitates careful consideration and must be weighed against the expected
military advantages. The legality of Israel’s use of sonic booms under IHL
depends on the intent behind the tactic and adherence to proportionality and
distinction principles. If the aim is to locate military targets, Article 51(2)
of AP I may not apply, but compliance with other IHL principles is essential.[76]
Conclusion
The use of sonic warfare
against civilians is a multifaceted subject that interconnects with various
legal and ethical principles of general international and humanitarian law. The
legality of such practices must be examined in light of the fundamental rules
of armed conflict governing the means and methods of warfare, which prioritize
the protection of civilians and prohibit weapons that cause unnecessary
suffering and have indiscriminate effects. While specific treaties on sonic
warfare are not yet established, existing frameworks such as the Arms Trade
Treaty and the Geneva Conventions provide a basis for evaluating the
permissibility of these methods. The IHL fundamental principles of distinction
and proportionality maintain that civilians must be kept aside from war
hostilities, and prohibit the means or methods of warfare from causing
unnecessary suffering or redundant harm. Sonic weapons, and in particular sonic
booms used by a party in an international armed conflict as a tool of terror
against civilians, defy by their very nature these principles, because of the
indiscriminate and long-term harmful effects they have on civilians.
It is recommended that
the international community assess seriously and precisely the legal status of
sonic weapons under existing frameworks of PIL and verify their compliance with
IHL, to ensure the strict regulation of their use and compliance with principles
of humanity and the commands of public conscience. Also, the development,
disposition, and use of such weapons should be transparent and subject to
public inspection to avert mismanagement and respect the principles of humanity
and the rule of law. To this end, States should engage in an effective dialogue
and cooperate to set explicit norms and regulations. As warfare technology
progresses, the international community must remain cautious and proactive in
dealing with these new encounters to safeguard and protect civilians, human
rights, and the preservation of international peace and security.
Undeniably, threats
infringing the State’s airspace sovereignty, which bans any exercise of power
within its legal area, are proscribed by PIL and IHL. Violations of airspace
sovereignty are seen as acts of aggression or breaches of international law,
triggering military responses. When they take the form of sonic booms, they
become a tool of psychological warfare, targeting civilians and military
personnel who are hors de combat and are likely to cause harm. Lebanon has undergone the
worst of this psychological warfare. The international community needs to take
immediate action to ease the grief and create a future free from fear and
suffering. Drawing from this case,
future interventions should emphasize early prevention of provocative actions
between conflicting parties, coupled with enhanced protection frameworks for
vulnerable populations who may face displacement and the subsequent challenges
of rebuilding their lives. Qatar has played a major role in
mediating this regional conflict by using its economic strength and strategic
position to promote dialogue. This role has facilitated significant
resolutions, particularly in Lebanon, where Qatar provided crucial financial
aid to the Lebanese army amid ongoing clashes between the Israeli military and
Hezbollah.
Sonic boom as a tool of
terror on civilians is a prohibited method of warfare that neither respects the
rule of ‘advance warning’ nor the principles of distinction and proportionality.
While the precise vertical extent of territorial airspace is still
unsettled, an international ethical framework for psychological wars and a
strong statute governing all aspects of international aviation law remain a key
necessity.
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