The Role of International (Air) Law in Mitigating Armed Conflicts

Russia – Ukraine and the No-Fly Zone

Ukraine President Volodymyr Zelensky has appealed to the United States to play its role as a world leader by to designate Ukraine as a No-Fly Zone or restricted area for flights. This hope was dashed after receiving an answer from the President of The United States, Joe Biden, who stated that the most possible and reasonable thing for the United States to do was to only try to provide additional assistance with weapons.

America’s answer clearly indicates that it does not want to be directly involved in the Russia-Ukraine conflict. America will not fulfill Zelensky’s request to designate a No-Fly Zone on Ukraine territory, a decision made by the United States after listening to Putin’s position regarding Russia’s attack on Ukraine. Putin very clearly said, as quoted from ABC News,that “Anyone who tries to obstruct us, let alone create a threat to our country and its people, must know that Russia’s response will be immediate and lead to consequences that you have never faced in history.” That statement poses a serious threat to anyone who interferes in Russia-Ukraine affairs, a threat which relates to the use of nuclear weapons. America will not take the risk of establishing a No-Fly Zone in Ukraine, because by doing so, it would be the same as the United States going “head-to-head” with Russian air power.

Just as an overview of nuclear weapons, in this case the Inter Continental Ballistic Missiles (ICBMs) with nuclear warhead that can travel as fast as lightning between continents. In a note in the famous book entitled “FEAR – Trump in the White House” written by Bob Woodward, documents were obtained about the ICBM capabilities that the North Korea War Forces had. It was mentioned that North Korea already has an ICBM with a nuclear warhead capable of reaching Los Angeles in just 38 minutes after it being launched from its base in North Korea. With such a comparison, one can estimate how capable the ICBMs that Russia have today.

That is why the United States will not fulfill Ukraine’s request for the No-Fly Zone. Moreover Ukraine is not or has not been a member of North Atlantic Treaty Organization (NATO). That is also the reason why it is likely that Russia will not allow Ukraine to become a NATO member.

Modern weapon technology has indeed developed very rapidly. Developed countries now no longer feel that it is enough to only have the Army, Navy, and Air Forces and they have now built their Space or Aerospace Forces. Modern weapon systems and especially command and control systems have used satellites orbiting in space. The determination of the No-Fly Zone is no exception and will use a satellite-based Command and Control System. All this only leads to the use of weapons whose nature becomes mass destruction, even potentially accelerating the world towards doomsday.

Hopefully, the Russia-Ukraine conflict will soon be resolved at the negotiating table for the sake of and in the name of humanity. At this point, it is clear that international rules that can play a role in regulating the use of mass destruction weapons are urgently needed so that conflicts that occur such as the Russian-Ukraine conflict can be more easily resolved.

Historical Overview

As we all know, World War II was successfully stopped by the United States by dropping atomic bombs on Hiroshima and Nagasaki. Suffering hundreds of thousands of deaths, mostly civilians, had made Japan surrender. World War II was over after the use of the powerful devasting atomic bomb.

It cannot be denied that the bombing carried out by the United States is closely related to one of the triggers, which is the attack by the Royal Japanese Navy’s air fleet on Pearl Harbour. In the book “The Future of War” written by George and Meridith Friedman, the Pearl Harbour tragedy is referred to as: The Origin of American Military Failure. More than 2400 Americans were killed, and 1178 others were injured.

After the end of World War II, which highlighted the use of the atomic bomb as a weapon of mass destruction, an internationally binding treaty was established to limit the use of nuclear weapons. That is why after 1945, although there were many conflicts in the world, the use of nuclear weapons could be avoided. There were several conflicts that occurred and led to wars after World War II, including the Korean War, the Vietnam War and other wars that occurred in Iran, Iraq, Syria, Afghanistan, and several other locations. Fortunately, so far, the use of nuclear weapons seems to be avoided by those involved in armed conflicts. For the time being, the use of weapons of mass destruction appears to be manageable or under control. The question is how long more can the international regulations, treaties and/or law be respected, to avoid the use of weapons of mass destruction in armed conflict.

Law of the Jungle – An Unequal War

History also records armed conflicts that occurs in an unequal pattern. Restrictions on the use of nuclear weapons are clearly unable to prevent armed conflicts from occurring in various places in the world. Restrictions on the use of nuclear weapons have even shifted the balance of power to countries that already possess them. Restrictions on the use of nuclear weapons have made the wars that occurred after World War II very unequal. Some countries that already have nuclear weapons even tend to become arbitrary under the shadow of the weapons of mass destruction that they have. From the various conflicts that occurred during the era of the completion of the world war showed how dominant the countries with nuclear weapons were. Iraq, Syria, Palestine, and Afghanistan are just a few examples of how unequal the military power they have and make them helpless. Once again, the shadow of nuclear weapons owned by certain countries has made them dominant. At this point, the thought arises of how to reorganize the international rules that can uphold justice among and between the nations.

Air Power Usage

Immediately after the end of World War II, all nations longed for a world of peace and prosperity without any more wars that threatened many lives seriously. The United Nations was formed, and various international organizations worked on and agreed upon ways to settle the remaining issues related to the victims of the war, leading to better welfare of humanity in the world of peace. International treaty agreements were concluded with the aim that there should be no more conflicts between nations to be resolved by violence. Treaties restricting the use of weapons of mass destruction were drawn up to avoid the recurrence of world wars.

In reality, all of them are still unable to avoid conflicts that are resolved by armed violence. The Korean War, The Vietnam War and Middle East conflict, Palestine and Afghanistan are examples of wars that continue to occur. Meanwhile, the military industry has even progressed rapidly with the wars. A dilemma continues in the midst of humanity’s efforts to lead the world to lasting peace, with the arms trade business and technological advances in the industry actually growing rapidly.

Recognising that the use of atomic bombs in Hiroshima and Nagasaki succeeded in stopping the world war then, it is apparent that the wars that occurred later relied heavily on Air Power. Developments in weapon technology, dominated by air force weaponry, turns out to be very powerful and efficient in efforts to win the war. That explains why all countries have built their  defense forces with a total system. This is because wars take the shape of a total war. It makes sense that the defense system that is built must also be total. Air Power has emerged as a very reliable force because it can be used as a means for the mass destruction weapons usage. This remains as a great challenge faced in the framework of joint efforts towards world peace.

International (Air) Law to Prevent War

The main issue now is how to resolve conflicts that will always occur in a peaceful and non-violent manner. How to avoid resolving conflicts by fighting wars that will claim many lives and material casualties.

As conflict resolution of violence or wars always uses air and space facilities, thus the international air law position has become very important. International rules, regulations, conventions regarding the use of air and space facilities play a significant role in world peace management.

In fact, all the while since the end of World War II, despite there are quite a lot of international legal rules limiting the use of weapons, especially weapons of mass destruction, wars have continued to occur. This is a big challenge for all of us. A war that must be avoided. Wars that invariably cost the lives of innocent people and the destruction of some other valuable materials.

How to place international air law in the right position so that it can be respected or obeyed by every country. International air law should have a central role in efforts for world peace and the welfare of humanity.

Even though war after war continues to occur, we must be grateful that until now, hopefully in the future, there will be no global scale war. It is not very clear why, whether countries that have weapons of mass destruction do not use them because they comply with the rules and regulations of international treaties or humanitarian norms can still be upheld by world leaders who have power. Once again, the question is to what extent the role of international law is able to control conflicts so as not to evolve into major wars. In Europe today, the war between Russia and Ukraine has not ended. Meanwhile, the South China Sea issues with its various complexities is awaiting resolution, as well as the issue of potential conflicts linger, for example, on Hong Kong and Taiwan, and then remain as challenges in the Indo-Pacific Region.

How to Manage National Air Power/Regional Air Power facing potential conflict in South China Sea / Indo Pacific

Various issues have surfaced lately in the South China Sea region. Several countries are involved in it which is also closely related to the famous jargon these days, namely China with the One Belt One Road Policy and the problem of China’s claim known as the Nine Dash Line.

Among the several issues that have surfaced, there may be two things that are quite inviting attention in the management of Air Power in Indonesia and especially in the Southeast Asia Region. The first is about the determination of Air Defense Identification Zone (ADIZ) by China and beyond, about the new defence pact referred to as AUKUS – Australia, United Kingdom, and United States.

Specifically in the ASEAN Region, more importantly in the perspective of Indonesia-Australia airspace management, there are at least 2 prominent things that should be highlighted or discussed. First, with the formation of AUKUS, in terms of national defence, suspicions may arise about the relationship between Over The Horizon Radar (OTHR) and the planned operation of nuclear-powered submarines by Australia. So far, Australia has and has always stated that the threat to Australia is the threat that comes through the North.

The Second is about the issue of Airways over the Alur Laut Kepulauan Indonesia (ALKI – Indonesian Archipelago Sea Route). As is known as a follow-up to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which among other things mentions the recognition of Indonesia as an archipelagic country, there are further problem that arise. With the obligation of an archipelagic country that must provide a peaceful passage or ALKI, the right to also use the airspace above ALKI arises. It is at this point that a very principled difference emerges between the international air law regime and the international law of the sea. The difference in principle demands it to be resolved immediately, before it develops later as one of the causes of conflict.

From all the descriptions above, it is clear that we all need a legal reference that can be internationally obeyed and respected by all countries. This is where the role of International (Air) Law must be placed in its proper position within the framework of managing National Air Power and also Regional Air Power in all regions of the world. The position of the role of International Air Law in relation to world peace and the welfare of humanity.

Air Chief Marshal (Retired) Chappy Hakim

Was the 14th Chief of Staff of the Indonesian Air Force who assumed his appointment from 2002 to 2005. ACM (Ret’d) Chappy Hakim founded PSAPI – the Indonesian Center for Air Power Studies or ICAP – Indonesia Center for Air Power Studies in 2019 and currently serves as the Chairman.

February 2023