Conduct of hostilities

Introduction

Readings

Suggested reading:

  • ARRASSEN Mohamed, Conduite des hostilités, droit des conflits armés et désarmement, Brussels, Bruylant, 1986, 605 pp.
  • BAXTER Richard R., “The Duties of Combatants and the Conduct of Hostilities (The Law of the Hague)”, in International Dimensions of Humanitarian Law, Geneva, Henry-Dunant Institute/UNESCO, 1986, pp. 93-133.
  • DINSTEIN Yoram, “Jus in Bello Issues Arising in the Hostilities in Iraq in 2003”, in IYHR, Vol. 34, 2004, pp. 1-14.
  • DINSTEIN Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, CUP, 2010, 320 pp.
  • EPSTEIN Melissa & BUTLER Richard, “The Customary Origins and Elements of Select Conduct of Hostilities Charges before the International Criminal Tribunal for the Former Yugoslavia: A Potential Model for Use by Military Commissions”, in Military Law Review, Vol. 179, 2004, pp. 68-127.
  • KALSHOVEN Frits & ZEGVELD Liesbeth, Constraints on the Waging of War, Geneva, ICRC, 2001, 223 pp.

II. The protection of the civilian population against the effects of hostilities

 1. Basic rule: Art. 48 of Protocol I

[CIHL, Rule 7]

Quotation 1

 

Article 48: Basic rule

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

[Source: Protocol I]

Quotation 2

 

Considering: [...]

That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of men. [...]

[Source: Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles under 400 Grammes Weight, Saint Petersburg, November 29/December 11, 1868, paras 2-3 of the Preamble; original text in French; English translation in Parliamentary Papers, vol. LXIV, 1869, p. 659; reprinted from Schindler, D. & Toman, J. (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 4th ed., Leiden, Boston, M. Nijhoff, 2004, p. 91; also available on http://www.icrc.org/ihl]

Cases and Documents

Readings

Suggested reading:

  • SOLF Waldemar A., “Protection of Civilians Against the Effects of Hostilities under Customary International Law and under Protocol I”, in American University Journal of International Law and Policy, Vol. 1, 1986, pp. 107-135.

Further reading:

  • DOSWALD-BECK Louise, “The Value of the Geneva Protocols for the Protection of Civilians”, in MEYER Michael (ed.), Armed conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Conventions, London, 1989, pp. 137-172.
  • GEHRING Robert W., “Protection of Civilian Infrastructures”, in Law and Contemporary Problems, Vol. 42/2, 1978, pp. 86-139.
  • OBRADOVIC Konstantin, “La protection de la population civile dans les conflits armés internationaux”, in CASSESE Antonio (ed.), The New Humanitarian Law of Armed Conflict, Naples, Editoriale Scientifica, Vol. I, 1979, pp. 128-160.
  • SALAHI Reem, “Israel’s War Crimes: a First Hand Account of Israel’s Attacks on Palestinian Civilians and Civilian Infrastructure”, in Rutgers Law Record, Vol. 36, 2009, pp. 201-223.
  • SAUSSURE Hamilton de, “Belligerent Air Operations and the 1977 Geneva Protocol I”, in Annals of Air and Space Law, Vol. 1, 1976, pp. 33-47.
  • SPAIGHT James M., Air Power and War Rights, London, Longmans, 1947, 523 pp.
  • URBINA Julio Jorge, Protección de las víctimas de los conflictos armados, Naciones Unidas y derecho internacional humanitario: desarrollo y aplicación del principio de distinción entre objetivos militares y bienes de carácter civil, Valencia, Tirant Monografías, 2000, 439 pp.

 2. Field of application

P I, Art. 49

Readings

Suggested reading:

  • SOLF Waldemar A., “Protection of Civilians Against the Effects of Hostilities under Customary International Law and under Protocol I”, in The American University Journal of International Law and Policy, Vol. 1, 1986, pp. 107-135.
  • MEYROWITZ Henri, “Une révolution inaperçue : l’article 49(2) du Protocole additionnel I aux Conventions de Genève de 1949”, in Oesterreichische Zeitschrift für öffentliches Recht und Völkerrecht, Vol. 32, 1981, pp. 29-57.
  1. acts of violence in defence and offence

Cases and Documents

Readings

Suggested reading:

  • KRETZMER David, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?”, in EJIL, Vol. 16/2, 2005, pp. 171-212.
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
  1. no matter where, including attacks on the party’s own territory under enemy control
  2. attacks from land, air or sea affecting the civilian population on land
    (See also )

Cases and Documents

Readings

Suggested reading:

  • BOURBONNIERE Michel, “Law of Armed Conflict (LOAC) and the Neutralization of Satellites or Ius in bello Satellitis”, in Journal of Conflict and Security Law, Vol. 9, 2004, pp. 43 ff.
  • CANESTARO Nathan, “Legal and Policy Constraints on the Conduct of Aerial Precision Warfare”, in Vanderbilt Journal of Transnational Law, Vol. 37/2, 2004, 431-484.
  • ROSCINI Marco, “Targeting and Contemporary Aerial Bombardment”, in ICLQ, Vol. 54/2, 2005, p. 411-444.

 3. Principles

  1. only military objectives may be attacked
  2. even attacks directed at military objectives are prohibited if the expected incidental effects on the civilian population are excessive
  3. even when an attack directed at a military objective is not expected to have excessive effects on the civilian population, all feasible precautionary measures must be taken to minimize those effects

 4. Definition of military objectives

P I, Art. 52(2) and (3) [CIHL, Rule 8]

Introductory text

When the focus of the law on the conduct of hostilities shifted from the prohibition to attack undefended towns and villages[1] to the rule that only military objectives may be attacked, the definition of military objectives became crucial. The principle of distinction is practically worthless unless at least one of the categories between which the attacker has to distinguish is defined. From the point of view of the philosophy of International Humanitarian Law (IHL), it would have been more satisfactory to define civilian objects. However, because objects become military objectives according to their use by the enemy or potential use by the attacker rather than because of their intrinsic character, it was military objectives that were defined. Indeed, all objects other than those benefiting from special protection[2] can become military objectives. By the same token, it has not been possible to draw up an exhaustive list of military objectives, although such a list would have greatly simplified practical implementation. Most definitions are therefore abstract but provide a list of examples. Protocol I chooses to illustrate its definition with an open-ended list of examples of civilian objects which are presumed not to be military objectives.[3]

Under the definition provided in Article 52(2) of Protocol I, an object[4] must cumulatively[5] meet two criteria to be a military objective.

First, the object, by its “nature, location, purpose or use”, has to contribute effectively to the military action of the enemy.[6] “Nature” refers to the object’s intrinsic character. “Location” admits that an object may be a military objective simply because it is situated in an area that is a legitimate target. Some States have clearly stated that their understanding of the word is that a specific area of land may be a military objective if its total or partial destruction, capture or neutralization in the circumstances ruling at the time offers a definite military advantage. “Purpose” refers to the enemy’s intended future use, based on reasonable belief. “Use” refers to the current function of the object. For example, it is generally agreed that weapons factories and even extraction industries providing raw materials for such factories are military objectives, because they serve the military, albeit indirectly.

Second, the object’s destruction, capture or neutralization has to offer a definite military advantage for the attacking side.[7] According to declarations of understanding made by some States, the military advantage anticipated from an attack refers to the advantage anticipated from the attack considered as a whole, not just from isolated or particular parts of the attack. A direct connection with specific combat operations is not considered to be necessary. An attack as a whole must, however, be a finite event, not to be confused with the entire war.

What counts is that the action and the advantage have to be “military”; the political aim of victory may be achieved through violence only by using violence against military objectives, i.e., by weakening the military potential of the enemy.[8] By characterizing the contribution as “effective” and the advantage as “definite”, the drafters tried to avoid too broad an interpretation of what constitutes a military objective. However, the exact practical implications of those terms are subject to controversy. Both criteria must be fulfilled “in the circumstances ruling at the time”. Without this limitation to the actual situation, the principle of distinction would be void, as every object could in abstracto, in the wake of possible future developments, e.g., if used by enemy troops, become a military objective.

Cases and Documents

Readings

Suggested reading:

  • BOIVIN Alexandra, “The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare”, in University Centre for International Humanitarian Law, Research Paper Series, No. 2, 2006, 100 pp.
  • DÖRMANN Knut, “The Definition of Military Objectives”, in BERUTO Gian Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, pp. 85-93.
  • DOUGHERTY Bernard & QUENIVET Noëlle, “Has the Armed Conflict in Iraq Shown once more the Growing Dissension Regarding the Definition of a Legitimate Target?: What and Who can be Lawfully Targeted?”, in Humanitäres Völkerrecht, Vol. 4, 2003, pp. 188-196.
  • HENDERSON Ian, The Contemporary Law of Targeting: [Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I], Leiden, Boston, M. Nijhoff, 2009, 266 pp. 
  • HOLLAND Joseph, “Military Objective and Collateral Damage: their Relationship and Dynamics”, in YIHL, Vol. 7(2004), 2007, pp. 35-78.
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
  • ROBERTSON Horace B., “The Principle of the Military Objective in the Law of Armed Conflict”, in International Law Studies, US Naval War College, Vol. 72, 1998, pp. 197-223.
  • SASSÒLI  Marco, “Targeting: The Scope and Utility of the Concept of Military Objectives for the Protection of Civilians in Contemporary Armed Conflicts”, in WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, New York, Transnational Publishers, 2005, pp. 181-210.
  • SCHMITT Michael, “Targeting and Humanitarian Law: Current Issues”, in IYHR, Vol. 34, 2004, pp. 59-104.
  • SPEROTTO FEDERICO, “Targeted Killings in response to Security Threats: Warfare and Humanitarian Issues”, in Global Jurist, Vol. 8, Issue 3, 2008, pp. 1-32.
  • WARD Christopher, “Distinction: The Application of the Additional Protocols in the Theatre of War”, in Asia-Pacific Yearbook of International Humanitarian Law, vol. 2, 2006, pp. 36-45.

 5. Definition of the civilian population

P I, Art. 50

Introductory text

The principle of distinction can only be respected if not only the permissible objectives but also the persons who may be attacked are defined. As combatants are characterized by a certain uniformity and civilians by their great variety,[9] Art. 50(1) of Protocol I logically defines civilians by excluding them from the corollary category of combatants: everyone who is not a combatant is a civilian benefiting from the protection provided for by the law on the conduct of hostilities.[10] As will be seen below, civilians only lose their protection from attack and the effects of the hostilities if and for such time as they directly participate in hostilities.[11] The complementarity of the two categories, civilians and combatants, is very important in rendering IHL complete and effective, and thereby ensuring no one may fight but not be fought, or be attacked but not defend himself/herself – a privilege and a sanction which would never be respected and would undermine the whole fabric of IHL in a given conflict.

Recently, some scholars and governments have argued that persons belonging to an armed group failing to fulfil the collective requirements for combatant status (e.g., by not distinguishing themselves from the civilian population or because they do not belong to a party to the international armed conflict) may nevertheless be attacked like combatants and not only, like civilians, when and for such time as they directly participate in hostilities. This argument, which could be invoked to justify acts that would otherwise qualify as extra-judicial executions, is, at a minimum, incompatible with the wording of Art. 50(1) of Protocol I. Because of the difficulties in identifying such persons in the conduct of hostilities, it also puts other civilians at risk.
Thus, under this definition there is no category of “quasi-combatants”, i.e. civilians contributing so fundamentally to the war effort (e.g. workers in ammunition factories) that they lose their civilian status although not directly participating in hostilities. Indeed, in IHL there can logically be no such category. If the civilian population is to be protected, only one distinction is practicable: the distinction between those who (may) directly participate in hostilities, on the one hand, and all others, who do not, may not and cannot militarily hinder the enemy from obtaining control over their country by means of a complete military occupation, no matter what their contribution to the war effort may be otherwise, on the other.

To allow attacks on persons other than combatants would also violate the principle of necessity, because victory can be achieved by overcoming only the combatants of a country – however efficient its armament industry and however genial its politicians may be. All this obviously does not preclude military objectives, such as armament factories, from being attacked; subject to the principle of proportionality – the attack on a military objective does not become unlawful because of the risk that a civilian who works or is otherwise present in it may come to harm during the course of the attack.
If one person so defined is a civilian, any number of such persons constitute the civilian population.[12] According to proportionality as a general principle of law, the presence of individual non-civilians among a great number of civilians does not deprive the latter of the character of a civilian population,[13] nor does it mean that the non-civilians may not be individually attacked provided that the necessary precautions are taken.

Cases and Documents

Readings

Suggested reading:

  • GEHRING Robert W., “Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I”, in RDMDG, Vol. 19, 1980, pp. 9-48.
  • TURNER Lisa & NORTON Lynn G., “Civilians at the Tip of the Spear”, in Air Force Law Review, Vol. 51, 2001, pp. 21 ff.
  • GUILLORY Michael E., “Civilianizing the Force: Is the United States Crossing the Rubicon?”, in Air Force Law Review, Vol. 51, 2001, pp. 111 ff.
  1. definition of a civilian
    [See also infra, Conduct of Hostilities, II. The protection of the civilian population against the effects of hostilities,7) Loss of protection: The concept of direct participation in hostilities and its consequences]
    P I, Art. 50(1) [CIHL, Rule 5]

Cases and Documents

  1.  the presence of a combatant or a military objective among the civilian population
    P I, Art. 50(3)

Cases and Documents

 6. Prohibited attacks

(See also infra, Conduct of Hostilities, III. Means and Methods of Warfare)

Introductory text

Under IHL, lawful methods of warfare are not unlimited. In particular, IHL prohibits certain kinds of attacks. The civilian population may never be attacked; this prohibition includes attacks the purpose of which is to terrorize the population.[14] IHL also proscribes attacks directed at civilian objects.[15] Even those attacks directed at a legitimate military objective[16] are regulated by IHL; such attacks must not be indiscriminate, i.e. the weapons utilized must be capable of being directed at the specific military objective and the means used must be in proportion to the military necessity.[17] The principle of proportionality prohibits attacks, even when directed at a military objective, if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.[18] This principle is the inescapable link between the principles of military necessity and humanity, where they pull in opposite directions. Although military advantage, which may be taken into account, is qualified, the principle of proportionality remains very difficult to apply, and any attempt to weigh the expected military advantage against the anticipated civilian losses or damage to civilian objects is inevitably dependent on subjective value judgements, especially when both probabilities, i.e. gaining the advantage and affecting civilians, can be gauged with less than 100% accuracy.

In addition, if a military objective is targeted and the principle of proportionality is respected, but civilians or civilian objects may nevertheless be affected by the attack, precautionary measures must be taken.[19] Finally, reprisals against civilians or civilian objects are prohibited under IHL.[20]

Cases and Documents

Readings

Suggested reading:

  • DOWNES Alexander B., Targeting Civilians in War, Ithaca, London, Cornell University Press, 2008, 315 pp.
  • OLASOLO Héctor, Unlawful Attacks in Combat Situations: from the ICTY’s Case Law to the Rome Statute, Leiden, M. Nijhoff, 2008, 288 pp.
  • ROSEN Richard D., “Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity”, in Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, May 2009, pp. 683-777.
  1.  attacks against the civilian population as such (including those intended to spread terror)
    (See also supra, Fundamentals, B. International Humanitarian Law as a Branch of Public International Law, III. International Humanitarian Law: a branch of international law governing the conduct of States and individuals, 1) Situations of application, C. Other situations, d) acts of terrorism?)
    P I, Art. 51(2) [CIHL, Rule 2]

Cases and Documents

Readings

Suggested reading:

  • SAYAPIN Sergey V., “The Spread of Terror among the Civilian Population: A War Crime?”, in Asia-Pacific Yearbook of International Humanitarian Law, Vol. 2, 2006, pp. 196-225.
  1.  attacks against civilian objects
    P I, Art. 52(1) [CIHL, Rule 10]

Cases and Documents

Readings

Suggested reading:

  • BART Gregory Raymond, “The Ambiguous Protection of Schools under the Law of War: Time for Parity with Hospitals and Religious Buildings”, in Georgetown Journal of International Law, Vol. 40, No. 2, 2009, pp. 405-446.
  1. indiscriminate attacks

    [CIHL, Rule 11]

Cases and Documents

Readings

Suggested reading:

  • BLIX Hans, “Area Bombardment: Rules and Reasons”, in BYIL, Vol. 49, 1978, pp. 31-69.
  • CASSESE Antonio, “The Prohibition of Indiscriminate Means of Warfare”, in AKKERMAN Robert J. (ed.), Declarations on Principles, A Quest for Universal Peace, Liber Amicorum Discipulorumque Prof. Dr Bert V.A. Röling, Leiden, 1977, pp. 171-194.
  • DOWNES Alexander B., Targeting Civilians in War, Ithaca, London, Cornell University Press, 2008, 315 pp.
  • MEYROWITZ Henri, “Le bombardement stratégique d’après le Protocol I aux Conventions de Genève”, in ZaöRV, Vol. 41, 1981, pp. 1-68.

Further reading:

  • CARNAHAN Burrus, “‘Linebacker II’ and Protocol I: The Convergence of Law and Professionalism”, in American University Law Review, Vol. 31/4, 1982, pp. 861-870.
  • PARKS William H., “Conventional Aerial Bombing and the Law of War”, in United States Naval Institute Proceedings, Vol. 108, No. 951, 1982, pp. 98-117.
  • PARKS William H., “Linebacker and the Law of War”, in Air University Review, January-February 1983, pp. 2-30.

aa) attacks not directed at a specific military objective
P I, Art. 51(4)(a) [CIHL, Rule 12(a)]

Cases and Documents

bb) use of weapons which cannot be directed at a specific military objective
P I, Art. 51(4)(b) [CIHL, Rule 12(b)]

Cases and Documents

Cases and Documents

Readings

Suggested reading:

  • BROWN Bernard L., “The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification”, in Cornell International Law Journal, Vol. 10, 1976, pp.134-155.
  • DINSTEIN Yoram, “Collateral Damage and the Principle of Proportionality”, in WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, New York, Transnational Publishers, 2005, pp. 211-224.
  • FENRICK William J., “The Rule of Proportionality and Protocol I in Conventional Warfare”, in Military Law Review, Vol. 98, 1980, pp. 541-595.
  • GARDAM Judith, Necessity, Proportionality and the Use of Force by States, Cambridge, CUP, 2004, 259 pp.
  • GARDAM Judith, “The Proportionality as a Restraint on the Use of Force”, in AYIL, Vol. 20, 1999, pp. 161-173.
  • HENDERSON Ian, The Contemporary Law of Targeting: [Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I], Leiden, Boston, M. Nijhoff, 2009, 266 pp. 
  • HOLLAND Joseph, “Military Objective and Collateral Damage: their Relationship and Dynamics”, in YIHL, Vol. 7 (2004), 2007, pp. 35-78.
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
  • PARKER Tom, “The Proportionality Principle in the War on Terror”, in Hague Yearbook of International Law, Vol. 15, 2002, pp. 3-15.
  • WATKIN Kenneth, “Assessing Proportionality: Moral Complexity and Legal Rules”, in YIHL, Vol. 8(2005), 2007, pp. 3-53.

Further reading:

  • CANNIZZARO Enzo, “Contextualizing Proportionality: Jus ad Bellum and Jus in Bello in the Lebanese War”, in IRRC, Vol. 88, No. 864, December 2006, pp. 779-792.
  • COHEN Amichai, The Lebanon War and the Application of the Proportionality Principle, Jerusalem, Hebrew University of Jerusalem, May 2007, 26 pp.
  • COHEN Amichai, “The Principle of Proportionality in the Context of Operation Cast Lead: Institutional Perspectives, in Rutgers Law Record, Vol. 35, 2009, pp. 23-38.
  • FENRICK William J., “The Law Applicable to Targeting and Proportionality after Operation Allied Force: A View from the Outside”, in YIHL, Vol. 3, 2000, pp. 5380.
  • FENRICK William J., “Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia”, in EJIL, Vol. 12/3, 2001, pp. 489-502.
  • KNOOPS Geert-Jan Alexander, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities”, in International Criminal Law Review, Vol. 9, No. 3, 2009, pp. 501-529.
  • KRÜGER-SPRENGEL Friedhelm, “Le concept de proportionnalité dans le droit de la guerre. Rapport présenté au Comité pour la protection de la vie humaine dans les conflits armés, VIIIe Congrès de la Société internationale de droit pénal militaire et de droit de la guerre”, in RDMDG, Vol. 19, 1980, pp. 177-204.
  • MEDENICA Olivera, “Protocol I and Operation Allied Force: did NATO Abide by Principles of Proportionality?”, in Loyola of Los Angeles International and Comparative Law Review, Vol. 23, 2001, pp. 329-426.
  • NEUMAN Noam, “Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality”, in YIHL, Vol. 7 (2004), 2006, pp. 79-113.
  • PHILIPPE Xavier, “Brèves réflexions sur le principe de proportionnalité en droit humanitaire”, in En hommage à Francis Delpérée : itinéraires d’un constitutionnaliste, Mélanges No. 44, Brussels, Bruylant, 2007, pp. 1183-1196.
  • REYNOLDS Jefferson, “Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict and the Struggle for a Moral High Ground”, in Air Force Law Review, Vol. 56, 2005, 169 pp.
  • SHUE Henry & WIPPMAN David, “Limiting attacks on Dual Use Facilities performing Indispensable Civilian Functions” in Cornell International Law Journal, Vol. 35, 2002, pp. 559-579.
    “Symposium: The International Legal Fallout from Kosovo” (articles of GAZZINI Tarcisio, HILPOLD Peter, CERONE John, FENRICK William J.,
  • BENVENUTI Paolo & BOTHE Michael), in EJIL, Vol. 12/3, 2001, pp. 391-536.
  • VENTURINI Gabriella, Necessità proporzionalità nell’uso della forza militare in diritto internazionale, Milano, Giuffrè, 1988, 189 pp.
  1.  attacks against the civilian population (or civilian objects) by way of reprisals
    P I, Art. 51(6) and 52(1) 

Cases and Documents

Readings

Suggested reading:

  • See infra

 7. Loss of protection: The concept of direct participation in hostilities and its consequences

P I, Art. 51(3); PII, Art. 13(3) [CIHL, Rule 6]

Introductory text

The concept of “direct participation in hostilities” is a cornerstone of the IHL on the conduct of hostilities, and its practical importance has grown as armed conflicts have become “civilianized”.[21] Both in international and non-international armed conflicts, civilians lose their protection against attacks (and their protection against the incidental effects of attacks, afforded to the civilian population as a whole) if and for such time as they participate directly in hostilities.[22] Neither treaty nor customary law defines this concept. After a broad consultation of experts revealed an absence of agreement on certain crucial points, the ICRC tried to clarify several concepts in an “Interpretive Guidance”:[23] who is covered as a “civilian” by the rule prohibiting attacks except in case of direct participation; what conduct amounts to direct participation; the duration of the loss of protection; the precautions to be taken and the types of protection afforded in case of doubt; the rules governing attacks against persons who take direct part in hostilities; and the consequences of regaining protection. The first issue is probably the most controversial.

In international armed conflicts, treaty law is clear that everyone who is not a combatant is a civilian benefiting from protection against attacks except if he or she takes a direct part in hostilities. Members of the armed forces of a party to the international armed conflict who lost their combatant status (e.g., because they did not distinguish themselves from the civilian population) may also reasonably be excluded. Some scholars also exclude members of armed groups that do not belong to a party to the international armed conflict. In our view, such “fighters” are either civilians or covered by the rule applicable to a parallel non-international armed conflict, discussed below.

In non-international armed conflicts, the absence of any mention of “combatants” might lead one to deduce that everyone is a civilian and that no one may be attacked unless they directly participate in hostilities. However, this would render the principle of distinction meaningless and impossible to apply. In addition, common Article 3 confers protection on “persons taking no active part in hostilities, including members of armed forces who have laid down their arms or are otherwise hors de combat”. The latter part of the phrase suggests that for members of armed forces and groups, it is not sufficient to no longer take active part in hostilities to be immune from attack. They must take additional steps and actively disengage. On a more practical level, to prohibit government forces from attacking clearly identified fighters unless (and only while!) the latter engage in combat against government forces is militarily unrealistic, as it would oblige them to react rather than to prevent, while facilitating hit-and-run operations by the rebel group. These arguments may explain why the Commentary on Protocol II considers that “[t]hose belonging to armed forces or armed groups may be attacked at any time.”[24]

There are two ways of conceptualizing this conclusion. First, “direct participation in hostilities” can be understood to encompass the simple fact of remaining a member of the group or of keeping a fighting function in such a group. Second, members of armed groups, or, as the ICRC Interpretive Guidance suggests, those members of an armed group whose specific function is continuously to commit acts that constitute direct participation in hostilities, may not be considered “civilians” (and therefore do not benefit from the rules that protect them against attacks unless and for such time as they directly participate in hostilities). The latter suggestion ensures that membership of the armed group is distinguished from simple affiliation with a party to the conflict for which the group is fighting – in other words, membership of the political, educational or humanitarian wing of a rebel movement. In every case, however, in practice the difficult question arises as to how government forces are to determine (fighting) membership in an armed group while the individual in question does not commit hostile acts.

As for the question about what conduct amounts to “direct participation”, the ICRC Interpretive Guidance concludes, based on a broad agreement among experts, that the following criteria must be cumulatively met in order to classify a specific act as direct participation in hostilities:
 

  1. "the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);
  2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation);
  3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)."

Cases and Documents

Readings

Suggested reading:

  • BOOTHBY Bill, ““And for Such Time as”: The Time Dimension to Direct Participation in Hostilities”, in Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 741-768.
  • CAMINS Emily, “The Past as Prologue: the Development of the ‘Direct Participation’ Exception to Civilian Immunity”, in IRRC, Vol. 90, No. 872, 2008, pp. 853-881.
  • DINSTEIN Yoram, “Distinction and Loss of Civilian Protection in International Armed Conflicts”, in IYHR, Vol. 38, 2008, pp. 1-16.
  • GOODMAN Ryan [et al.], “The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, in Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 637-916.
  • GROSS Michael L., “Asymmetric War, Symmetrical Intentions: Killing Civilians in Modern Armed Conflict”, in Global Crime, Vol. 10, No. 4, November 2009, pp. 320-336. 
  • KLEFFNER Jann K., “From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities: on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference”, in Netherlands International Law Review, Vol. 54, No. 2, 2007, pp. 315-336.
  • LYALL Rewi, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States”, in Melbourne Journal of International Law, Vol. 9, Issue 2, May 2008, 21 pp. 
  • MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
  • MELZER Nils, “Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities”, in Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 831-916.
  • PLAW Avery, Targeting Terrorists: A License to Kill?, Aldershot, Ashgate, 2008, 294 pp.
  • SCHMITT Michael N., “Deconstructing Direct Participation in Hostilities: the Constitutive Elements”, in Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 697-739.

Further reading:

  • AKANDE Dapo, “Clearing the Fog of War?: The ICRC’s Interpretive Guidance on Direct Participation in Hostilities”, in ICLQ, Vol. 59, Part 1, January 2010, pp. 180-192.
  • CORN Geoffrey S., “Unarmed But How Dangerous? Civilian Augmentees, the Law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions”, in Journal of National Security Law and Policy, Vol. 2, No. 2, 2008, pp. 257-295.
  • GOODMAN Ryan, “The Detention of Civilians in Armed Conflicts”, in AJIL, Vol. 103, No. 1, January 2009, pp. 48-74.
  • KRETZMER David, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?”, in EJIL, Vol. 16/2, 2005, pp. 171-212.
  • MELZER Nils, “Targeted Killing or Less Harmful Means? Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity”, in YIHL, Vol. 9, 2009, pp. 87-116.
  • SASSÒLI Marco, “The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan?”, in IYHR, Vol. 39, 2009, pp. 177-212.
  • STEPHENS Dale, LEWIS Angeline, “The Targeting of Contractors in Armed Conflict”, in YIHL, Vol. 9, 2006, pp. 25-64.

 8. The civilian population is not to be used to shield military objectives

P I, Art. 51(7) [CIHL, Rule 97]

Introductory text

IHL prohibits attacks against the civilian population and civilian objects.[25] IHL also prohibits abuse of this prohibition: civilians, the civilian population and certain specially protected objects may not be used to shield a military objective from attack.[26] The decisive factor for distinguishing the use of human shields from non-compliance with the obligation to take passive precautions[27] is whether the intermingling between civilians and combatants, and/or military objectives, is the result of the defender’s specific intention to obtain “protection” for its military forces and objectives, or simply of a lack of care for the civilian population.

If the defender violates the prohibition to use human shields, the “shielded” military objectives or combatants do not cease to be legitimate objects of attack merely because of the presence of civilians or protected objects.[28] It is generally agreed that involuntary human shields nevertheless remain civilians. Care must therefore be taken to spare them when attacking a legitimate objective.[29] In an extreme case, if the anticipated incidental loss of life or injury among involuntary human shields is excessive in relation to the concrete and direct military advantage expected from attacking the military objective or combatants, an attack directed against the latter may become unlawful.[30] The status of voluntary human shields is more controversial. Some consider that acting as voluntary human shields constitutes direct participation in hostilities, which would cause the persons concerned to lose protection against the effects of hostilities while they act as human shields. Others object, first, that in order to classify an act as direct participation, the act must provoke, through a physical chain of causality, harm to the enemy or its military operations. Human shields are a moral and legal rather than physical means to an end: to hinder the enemy from attacking. Second, the theory considering voluntary human shields as civilians directly participating in hostilities is self-defeating. If it were correct, the presence of human shields would not have any legal impact on the ability of the enemy to attack the shielded objective – but an act which cannot have any impact whatsoever upon the enemy cannot possibly be classified as direct participation in hostilities. Third, the distinction between voluntary and involuntary human shields refers to a factor, i.e. the voluntary involvement of the target, which is very important in criminal law and, to a lesser extent, in law enforcement operations, but is completely irrelevant in IHL. A soldier of a country with universal compulsory military service is just as much (and for just as long) a legitimate target as a soldier who is a member of an all-volunteer army. Fourth, the distinction is not practicable. How can a pilot or soldier launching a missile know whether the civilians he observes around a military objective are there voluntarily or involuntarily? What counts as a voluntary presence? Fifth, in a self-applied system like that of IHL during armed conflict, the suggested loss of protection against attacks may prompt an attacker to invoke the prohibition to use human shields abusively, as an alibi, as a mitigating circumstance or “to ease his conscience”.

Cases and Documents

Readings

Suggested reading:

  • BALLESTERO Manon, “Les boucliers humains volontaires : des civils ne participant pas directement aux hostilités?”, RBDI, Vol. 41, No. 1-2, 2008, pp. 265-291.
  • BOUCHIE de BELLE Stéphanie, “Chained to Cannons or Wearing Targets on Their T-Shirts: Human Shields in International Humanitarian Law”, IRRC, Vol. 90, No. 872, December 2008, pp. 883-906.
  • DINSTEIN Yoram, “Distinction and Loss of Civilian Protection in International Armed Conflicts”, IYHR, Vol. 38,  2008, pp. 1-16.
  • LYALL Rewi, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States”, Melbourne Journal of International Law, Vol. 9, Issue 2, May 2008, 21 pp.
  • SASSÒLI Marco, “Human Shields and International Humanitarian Law”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté, Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos, 2008, pp. 567-578.
  • SCHMITT Michael N., “Human Shielding from the Attacker’s Perspective”, in BERUTO Gian Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, pp. 93-102.
  • SCHMITT Michael N., “Human Shields in International Humanitarian Law”, IYHR, Vol. 38, 2008, pp. 17-58.

Further reading:

  • FISCHER Douglas H., “Human Shields, Homicides, and House Fires: How a Domestic Law Analogy Can Guide International Law Regarding Human Shield Tactics in Armed Conflict”, American University Law Review, Vol. 57, No. 2, 2007, pp. 479-521.
  • MELZER Nils, “Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities”, Journal of International Law and Politics, Vol. 42, No. 3, 2010, pp. 831-916.
  • OTTO Roland, “Neighbours as Human Shields? The Israel Defense Forces’ ‘Early Warning Procedure’ and International Humanitarian Law”, in IRRC, No. 856, December 2004, pp. 771-786.
  • ROSEN Richard D., “Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity”, in Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, May 2009, pp. 683-777.
  • SALAHI Reem, “Israel’s War Crimes: a First Hand Account of Israel’s Attacks on Palestinian Civilians and Civilian Infrastructure”, Rutgers Law Record, Vol. 36, Fall 2009, pp. 201-223.

 9. Protected objects

Introductory text

In order to further safeguard the civilian population during armed conflicts, IHL protects specific objects from attack. It prohibits attacks against civilian objects, which are all objects not defined as military objectives;[31] thus, a civilian object is one failing to contribute to military action because of, for example, its location or function, and because its destruction would provide no military advantage.

In addition, IHL grants some objects, most of which are civilian objects anyway, special protection. In addition to the general protection afforded to them as civilian objects, special protection means that these objects may not be used for military purposes by those who control them and should therefore never become military objectives under the two-pronged test of the definition of military objectives. Second, even if they meet the test and are effectively used for military purposes, specially protected objects may only be attacked under restricted circumstances and following additional precautionary measures. For each category, the specific rules on these issues are different.

Specially protected objects include: cultural objects;[32] objects indispensable for the survival of the civilian population, such as water;[33] works and installations containing dangerous forces (e.g., dams, dykes and nuclear electrical power generating stations). Attacks against military objectives located in the vicinity of such installations are also prohibited when they would cause sufficient damage to endanger the civilian population.[34] The special protection of these works and installations ceases only under limited circumstances.[35] The environment (made up of civilian objects) also benefits from special protection. Means or methods of warfare with the potential to cause widespread, long-term, and severe damage to the environment are prohibited.[36] Medical equipment (including transport used for medical purposes) is a final group of specially protected objects against which attack is prohibited.[37]

  1. civilian objects
    P I, Art. 52(1) [CIHL, Rule 9]

Cases and Documents

Readings

Suggested reading:

  • JIA Bing Bing, “‘Protected Property’ and its Protection in International Humanitarian Law”, in Leiden Journal of International Law, Vol. 15/1, 2002, pp. 131-153.
  • SASSÒLI Marco & CAMERON Lindsey, “The Protection of Civilian Objects Current State of the Law and Issues de Lege Ferenda”, in RONZITTI Natalino & VENTURINI Gabriella (eds), Current Issues in the International Humanitarian Law of Air Warfare, Utrecht, Eleven, 2005, pp. 35-74.
  1. specially protected objects

    aa)        cultural objects
    P I, Art. 53 [CIHL, Rules 38-40]

“Total wars”, inter-religious strife and inter-ethnic conflicts are increasingly marked by the destruction of civilian objects, in particular cultural objects. Experience unfortunately shows that, far from being accidental or mere collateral damage, such destruction is very often clearly deliberate and part of the war effort.

The first attempts to protect cultural objects against the effects of war date back to the adoption of Hague Convention IV of 1907. This protection has been considerably developed in the Hague Convention for the Protection of Cultural Property in the event of Armed Conflict and its 1954 and 1999 Protocols, in the 1949 Geneva Conventions and in Additional Protocols I and II of 1977.
Cultural objects are defined as “movable or immovable property of great importance to the cultural heritage of every people” (which include in particular monuments of architecture, archaeological sites, works of art, scientific collections and collections of books or archives) and as “buildings whose main and effective purpose is to preserve or exhibit movable cultural property” (such as museums, libraries or refuges intended to shelter cultural property).

On the basis of provisions applicable in both international and non-international armed conflicts, States parties are required to safeguard and respect cultural objects. Safeguarding comprises all the preventive measures to be taken in peacetime (which include the obligations to list, signal and mark the cultural objects with a distinctive emblem). Respect for cultural objects implies refraining from attacking them and prohibiting any form of pillage or destruction.

Considered as civilian objects under special protection, cultural objects must not be attacked and may not be used for military purposes. Even if they are, they do not automatically become legitimate military objectives. Their immunity may only be waived in cases of “imperative military necessity”.

In spite of the many detailed provisions designed to guarantee their protection, cultural objects are still often collateral victims of modern conflicts. In most cases, their irreparable destruction often constitutes a serious obstacle to the restoration of normal relations between former belligerents.

Cases and Documents

Readings

Suggested reading:

  • DESCH Thomas, “The Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”, in YIHL, Vol. 2, 1999, pp. 63-90.
  • EUSTATHIADES Constantin, “La protection des biens culturels en cas de conflit armé et la Convention de la Haye du 14 mai 1954”, in Études de Droit International, Athens, Klissiounis, Vol. 3, 1959, pp. 395-524.
  • HENCKAERTS Jean-Marie, “New Rules for the Protection of Cultural Property in Armed Conflict: The Significance of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict”, in Humanitäres Völkerrecht, Vol. 12/3, 1999, pp. 147-154.
  • HLADIK Jan, “Protection of Cultural Property: the Legal Aspects”, in JACQUES Richard B. (ed.), “Issues in International Law and Military Operations”, in International Law Studies, Vol. 80, 2006, pp. 319-331.
  • KONOPKA Jean A. (ed.), La protection des biens culturels en temps de guerre et de paix d’après les conventions internationales (multilatérales), Geneva, Imprimerie de Versoix, 1997, 163 pp.
  • O’KEEFE Roger, The Protection of Cultural Property in Armed Conflict, Cambridge, CUP, 2006, 404 pp.
  • STAVRAKI Emmanuelle, La Convention pour la protection des biens culturels en cas de conflit armé, Athens, Editions Ant. N. Sakkoulas, 1996, 306 pp.
  • TANJA Gerard J., “Recent Developments Concerning the Law for the Protection of Cultural Property in the Event of Armed Conflict”, in Leiden Journal of International Law, 1994, pp. 115-125.
  • TECHERA Erika J., “Protection of Cultural Heritage in Times of Armed Conflict: the International Legal Framework Revisited”, in Macquarie Journal of International and Comparative Environmental Law, Vol. 4, No. 1, 2007, pp. 1-20.
  • TOMAN Jiri, The Protection of Cultural Property in the Event of Armed Conflict, Aldershot/Paris, Dartmouth Publishing Company/ UNESCO Publishing, 1996, 525 pp.
    “Special issue: Protection of cultural property in armed conflict”, in IRRC, No. 854, June 2004, pp. 311-481.
  • VAN WOUDENBERG Nout & LIJNZAAD Liesbeth (eds), Protecting Cultural Property in Armed Conflict: an Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Leiden, Boston, M. Nijhoff, 2010, 243 pp.

Further reading:

  • ABTAHI Hirad, “Le patrimoine culturel iraquien à l’épreuve de l’intervention militaire du printemps 2003”, in Actualité et Droit International, May 2003, 13 pp., online: http://www.ridi.org/adi.
  • ABTAHI Hirad, “The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the former Yugoslavia”, in Harvard Human Rights Journal, Vol. 14, 2001, pp. 1-2.
  • CARDUCCI Guido, “L’obligation de restitution des biens culturels et des objets d’art en cas de conflit armé : droit coutumier et droit conventionnel avant et après la Convention de La Haye de 1954. L’importance du facteur temporel dans les rapports entre les traités et la coutume”, in RGDIP, Vol. 104/2, 2000, pp. 289-357.
  • DRIVER Mark C., “The Protection of Cultural Property During Wartime”, in Review of European Community & International Environmental Law, Vol. 9/1, 2000, pp. 1-12.
  • DUTLI Maria Teresa, Protection juridique des biens culturels dans les conflits armés : le Comité international de la Croix-Rouge (CICR) et la Protection des biens culturels (PBC), Forum protection des biens culturels, No. 11, 2007, pp. 71-77.
  • FORREST Craig J. S., “The Doctrine of Military Necessity and the Protection of Cultural Property during Armed Conflicts”, in California Western International Law Journal, No. 37, 2007, pp. 177-219.
  • HLADIK Jan, “The Review Process of the 1954 Hague Convention for the Protection of Cultural Property”, in YIHL, Vol. 1, 1998, pp. 313-322.
  • GERSTENBLITH Patty, “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward”, in Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 3, 2009, pp. 677-708. 
  • NAHLIK Stanislaw E., “La protection des biens culturels en cas de conflit armé”, in Collected Courses, Vol. 120/1, 1967, pp. 61-163.
  • TOMAN Jiri, “La protection des biens culturels dans les conflits armés internationaux : cadre juridique et institutionnel”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/M. Nijhoff, 1984, pp. 59-580.

bb) objects indispensable to the survival of the civilian population
P I, Art. 54 [CIHL, Rules 53 and 54]

CASES AND DOCUMENTS

  • ICRC, International humanitarian law and the challenges of contemporary armed conflicts in 2015 [para. 205]
  •  water

Cases and Documents

Readings

Suggested reading:

  • ABOUALI Gamal, “Natural Resources under Occupation: The Status of Palestinian Water under International Law”, in Pace International Law Review, Vol. 10/2, 1998, pp. 411-574.
  • BOUTRUCHE Théo, “Le statut de l’eau en droit international humanitaire”, in IRRC, No. 840, December 2000, pp. 887-916.
    ICRC, Water and War: ICRC Response, Geneva, ICRC, July 2009, 21 pp.
  • JORGENSEN Nikolai, “The Protection of Freshwater in Armed Conflict”, in Journal of International Law and International Relations, Vol. 3, No. 2, 2007, pp. 57-96.
  • ZEMMALI Ameur, “The Protection of Water in Times of Armed Conflicts”, in IRRC, No. 308, September-October 1995, pp. 550-564.
  • ZEMMALI Ameur, “The Right to Water in Times of Armed Conflict”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 307-318.
    Water and War: Symposium on Water in Armed Conflicts (Montreux, 21-23 November 1994), Geneva, ICRC, 1995, 168 pp.

cc) works and installations containing dangerous forces
P I, Art. 56 [CIHL, Rule 42]

Cases and Documents

Readings

Suggested reading:

  • RAMBERG Bennett, Destruction of Nuclear Energy Facilities in War, Lexington, D.C. Health & Co, 1980, 203 pp.

dd) medical equipment

Cases and Documents

  1. the natural environment

    P I, Arts 35(3) and 55 [CIHL, Rules 44 and 45]

Cases and Documents

Readings

Suggested reading:

  • ANTOINE Philippe, “International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict”, in IRRC, No. 291, November-December 1992, pp. 517-537.
  • AUSTIN Jay E. & BRUCH Karl E. (eds), The environmental consequences of war, Cambridge, CUP, 2000, 712 pp.
  • BODANSKY Daniel, Legal Regulation of the Effect of Military Activity on the Environment, Berlin, Erich Schmidt Verlag, 2003, 126 pp.
  • BOTHE Michael, “The Protection of the Environment in Times of Armed Conflict”, in German Yearbook of International Law, Vol. 34, 1991, p. 54.
  • BOUVIER Antoine, “Protection of the Natural Environment in Time of Armed Conflict”, in IRRC, No. 285, November-December 1991, pp. 567-578.
  • BOUVIER Antoine, “Recent Studies on the Protection of the Environment in Time of Armed Conflict”, in IRRC, No. 291, November-December 1992, pp. 554-566.
  • DORSOUMA Hamndou & BOUCHARD Michel-André, “Conflits armés et environnement : cadre, modalités, méthodes et rôle de l’évaluation environnementale”, in Développement durable et territoire Dossier 8, 2007, 17 pp. 
  • HULME Karen, War Torn Environment: Interpreting the Legal Threshold, Leiden, M. Nijhoff, 2004, 340 pp. KISS Alexandre, “Les Protocoles additionels aux Conventions de Genève de 1977 et la protection de biens de l’environnement”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/M. Nijhoff, 1984, pp. 229-262.
  • MARSH Jeremy J., “Lex Lata or Lex Ferenda?: Rule 45 of the ICRC Study on Customary International Humanitarian Law”, in Military Law Review, Vol. 198, 2008, pp. 116-164.
  • MOLLARD BANNELIER Karine, La protection de l’environnement en temps de conflit armé, Paris, Pedone, 2001, 542 pp.
  • MOMTAZ Djamchid, “Les règles relatives à la protection de l’environnement au cours des conflicts armés à l’épreuve du conflit entre l’Irak et le Koweit”, in AFDI, 1991, pp. 203-220.
  • POWER Mark, “La protection de l’environnement en droit international humanitaire : le cas du Kosovo”, in Ottawa Law Review, Vol. 33, 2001-2002, pp. 225-254.
  • REYHANI Roman, “Protection of the Environment During Armed Conflict”, in Missouri Environmental Law and Policy Review, Vol. 14, No. 2, 2007, pp. 323-338. 
  • SCHMITT Michael N., “Humanitarian Law and the Environment”, in The Denver Journal of International Law and Policy, Vol. 28/3, 2000, 265-323.
  • SPIEKER Heike, “The Conduct of Hostilities and the Protection of the Environment”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté: Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos, 2008, pp. 741-768.
    United Nations Environmental Programme, Protecting the Environment During Armed Conflict: an Inventory and Analysis of International Law, Nairobi, United Nations Environment Programme, November 2009, 83 pp.

Further reading:

  • ALEXANDER Nicholas G., “Airstrikes and Environmental Damage: Can the United States be Held Liable for Operation Allied Force?”, in Colorado Journal of International Environmental Law and Policy, Vol. 11/2, 2000, pp. 471-498.
  • BOISSON DE CHAZOURNES Laurence, DESGAGNÉ Richard & ROMANO Cesare, Protection internationale de l’environnement. Recueil d’instruments juridiques, Paris, Pedone, 1998, 1117 pp.
  • BOSTIAN Ida L., “The Environmental Consequences of the Kosovo Conflict and the NATO Bombing of Serbia”, in Colorado Journal of International Environmental Law and Policy, 1999, pp. 230-240.
  • DESGAGNÉ Richard, “The Prevention of Environmental Damage in Time of Armed Conflict: Proportionality and Precautionary Measures”, in YIHL, Vol. 3, 2000, pp. 109-129.
  • DRUMBL Mark A., “Waging War against the World: The Need to Move from War Crimes to Environmental Crimes”, in Fordham International Law Journal, Vol. 22/1, 1998, pp. 122-153.
  • GRUNAWALT Richard J., KING John E. & McCLAIN Ronald S. (eds), Protection of the Environment During Armed Conflict, Newport, Naval War College, Vol. 19, 1996, 720 pp.
  • KOPPE Erik, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict, Portland (USA), Hart Publishing, 2008, 447 pp.
  • LAWRENCE Jessica C. & HELLER Kevin Jon, “The First Ecocentric Environmental War Crime: the Limits of Article 8(2)(b)(iv) of the Rome Statute”, in Georgetown International Environmental Law Review, Vol. 20, No. 1, 2007, pp. 61-95. 
  • MARAUHN Thilo, “Environmental Damage in Times of Armed Conflict – Not ‘Really’ a Matter of Criminal Responsibility?”, in IRRC, No. 840, December 2000, pp. 1029-2036.
  • OKOWA Phoebe N., “Natural Resources in Situations of Armed Conflict: Is There a Coherent Framework for Protection?”, in International Community Law Review, Vol. 9, No. 3, 2007, pp. 237-262. 
  • PETERSON Ines, “The Natural Environment in Times of Armed Conflict: a Concern for International War Crimes Law?”, in Leiden Journal of International Law, Vol. 22, Issue 2, 2009, pp. 325-343. 
  • PLANT Glen, “Environmental Damage and the Laws of War: Points Addressed to Military Lawyers”, in FOX Hazel & MEYER Michael A. (eds), Armed Conflict and the New Law, Volume II – Effecting Compliance, 1993, pp. 159-174.
  • REICHBERG Gregory & SYSE Henrik, “Protecting the Natural Environment in Wartime: Ethical Considerations from the Just War Tradition”, in Journal of Peace Research, Vol. 37/4, 2000, pp. 449-468.
  • RICHARDS Peter J., “Mars Meets Mother Nature: Protecting the Environment during Armed Conflict”, in Stetson Law Review, Vol. 28/4, 1999, pp. 1047-1090.
  • ROBERTS Adam, “Environmental Destruction in the Gulf War”, in IRRC, No. 291, November-December 1992, pp. 538-553.
  • ROBERTS Adam, “Failures in Protecting the Environment in the 1990-91 Gulf War”, in ROWE Peter (ed.), The Gulf War 1990-91 in International and English Law, London, Sweet & Maxwell, 1993, pp. 111-154.
  • SCHMITT Michael N., “The Environmental Law of War: An Invitation to Critical Re-examination”, in Journal of Legal Studies, Vol. 6, 1995-96, pp. 237-271.
  • SHARP Peter, “Prospects for Environmental Liability in the International Criminal Court”, in Virginia Environmental Law Journal, Vol. 18/2, 1999, pp. 217-243.
  • SCHWABACH Aaron, “Environmental Damage Resulting from the NATO Military Action against Yugoslavia”, in Columbia Journal of Environmental Law, Vol. 25/1, 2000, pp. 117-140.
  • VAN DER VYVER Johan D., “The Environment: State Sovereignty, Human Rights, and Armed Conflict”, in Emory International Law Review, Vol. 23, No. 1, 2009, pp. 85-112. 
  • YORK Christopher, “International Law and the Collateral Effects of War on the Environment: The Persian Gulf”, in South Africa Journal of Human Rights, Vol. 7, 1991, pp. 269-290.
  • YUZON E.F.J., “Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons: Greening the International Laws of Armed Conflict to Establish an Environmentally Protective Regime”, in American University Journal of International Law and Policy, Vol. 11, 1996, pp. 793-846.
    “Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict”, in IRRC, No. 311, March-April 1996, pp. 230-237.

 10. Precautionary measures in attack

Introductory text

Under IHL only military objectives may be attacked.[38] Even such attacks, however, are not without restrictions. An attack must be cancelled if it becomes apparent that it is of a type that is prohibited.[39] If circumstances permit, an advance warning must be given for those attacks which may affect the civilian population.[40] In determining the objective of an attack, and when a choice is possible, the one causing least danger to the civilian population must be selected.[41] Furthermore, IHL requires those planning and deciding on an attack to take precautionary measures,[42] including refraining from attacking when incidental loss of civilian life or destruction of civilian objects outweighs the military advantage of the attack.[43] The meaning of these obligations in practice remains controversial in many cases, mainly with regard to which precautions are “feasible”. Military and humanitarian considerations may influence the feasibility of such precautions: the importance and the urgency of destroying a target; the range, accuracy and effects radius of available weapons; the conditions affecting the accuracy of targeting; the proximity of civilians and civilian objects; the possible release of hazardous substances; the protection of the party’s own forces (and the proportionality between the additional protection for those forces and the additional risks for civilians and civilian objects when a certain means or method is chosen); the availability and feasibility of alternatives; the necessity to keep certain weapons available for future attacks on targets which are militarily more important or more risky for the civilian population.

Cases and Documents

Readings

Suggested reading:

  • HENDERSON Ian, The Contemporary Law of Targeting: [Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I], Leiden, Boston, M. Nijhoff, 2009, 266 pp. 
  1. an attack must be cancelled if it becomes apparent that it is a prohibited one
    P I, Art. 57(2)(b) [CIHL, Rule 19]

Cases and Documents

  1. advance warning must be given, unless circumstances do not permit
    P I, Art. 57(2)(c) [CIHL, Rule 20]

Cases and Documents

  1. when a choice is possible, the objective causing the least danger to the civilian population must be selected
    P I, Art. 57(3) [CIHL, Rule 21]
  2. additional obligations of those who plan or decide on an attack
    P I, Art. 57(2)(a) [CIHL, Rules 16 and 17]

Cases and Documents

aa) verify that objectives are not illicit

Cases and Documents

bb) choose means and methods avoiding or minimizing civilian losses

Cases and Documents

cc) refrain from attacks causing disproportionate civilian losses

Cases and Documents

 11. Precautionary measures against the effects of attacks

GC IV, Arts 18(5); P I, Art. 58 [CIHL, Rules 22-24]

Introductory text

Contrary to Art. 57 of Protocol I,[44] which lays down rules for the conduct to be observed in attacks on the territory under the control of the enemy, Art. 58 of Protocol I relates to specific measures which every Power must take in its own territory in favour of its nationals, or in territory under its control. These precautionary measures against the effects of attacks (which are often referred to as “Conduct of Defence”[45]) include three specific obligations that Parties to a conflict shall discharge “to the maximum extent feasible”:[46]

  1. They must “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”.[47] In most cases, only specific categories of the population (i.e. children, the sick or women) are evacuated; sometimes the entire population is evacuated. It should be underlined that, when carrying out such measures, occupying powers remain bound by the strict limitations spelled out in Art. 49 of Convention IV.
  2. They must “avoid locating military objectives within or near densely populated areas”.[48] This obligation, which covers “both permanent and mobile objectives [...] should already be taken into consideration in peacetime”.[49]
  3. They must “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations”.[50] Practically speaking, the “other measures” are chiefly building shelters to provide adequate protection against the effect of hostilities for the civilian population and the training of efficient civil defence services.

The wording, however, clearly indicates that these obligations are weaker than those of an attacker. They have to be taken only “to the maximum extent possible,” and the defender only has to “endeavour to remove” the civilian population and “avoid” locating military objectives nearby. While responsibility for the protection of the civilian population against the effects of hostilities is shouldered by both the attacker and the defender, its weight is not equally distributed.

Cases and Documents

Readings

Suggested reading:

  • QUEGUINER Jean-François, “Precautions under the Law Governing the Conduct of Hostilities”, in IRRC, Vol. 88, No. 864, December 2006, pp. 798-821.

 12. Presumptions

P I, Arts 50(1) and 52(3)

Cases and Documents

 13. Zones created to protect war victims against the effects of hostilities

GC I, Art. 23; GC IV, Arts 14 and 15; P I, Arts 59 and 60 [CIHL, Rules 35-37]

Introductory text

While IHL mainly tries to protect civilians and other categories of protected persons by obliging combatants to identify positively military objectives and to only attack them, respecting civilians wherever they happen to be, it also foresees different types of zones aimed at separating civilians from military objectives. The following table summarizes the different types of protected zones. They have in common the purpose of protecting war victims from the effects of hostilities (but not from falling under the control of the enemy) by assuring enemy forces that no military objectives exist in a defined area where war victims are concentrated. Thus, if the enemy respects IHL, the war victims run no risk of being harmed by the effects of hostilities. The risk with such zones is that they presuppose the willingness of the enemy to respect IHL. Hence, they are pointless against an enemy determined to violate IHL. On the contrary, such zones may then lead to the displacement of civilians and help the enemy target and abuse civilians by concentrating them in a confined location. Established under jus in bello, such zones have to be distinguished from the safe areas, humanitarian corridors or safe havens recently created under Chapter VII of the UN Charter, i.e. under jus ad bellum, and meant to prevent certain areas and the war victims in them from falling into enemy hands.

Cases and Documents

Readings

Suggested reading:

  • BOUVIER Antoine, “Zones protégées, zones de sécurité et protection de la population civile”, in BOUSTANY Katia & DORMOY Daniel, Perspectives humanitaires entre conflits, droit(s) et action, Brussels, Bruylant, 2002, pp. 251-269.
  • LAVOYER Jean-Philippe, “International Humanitarian Law, Protected Zones and the Use of Force”, in BIERMANN Wolfgang & VADSET Martin (eds), UN Peacekeeping in Trouble: Lessons Learned from the Former Yugoslavia, Ashgate, Aldershot, 1998, pp. 262-279.
  • OSWALD Bruce M., “The Creation and Control of Places of Protection During United Nations Peace Operations”, in IRRC, No. 844, December 2001, pp. 1013-1036.
  • SANDOZ Yves, “Localités et zones sous protection spéciale”, in Quatre études du droit international humanitaire, Geneva, Henry-Dunant Institute, 1985, pp. 35-47.
  • TORELLI Maurice, “Les zones de sécurité”, in RGDIP, Vol. 99/4, 1995, pp. 787-848. 

Further reading:

  • LANDGREN Karen, “Safety Zones and International Protection: A Dark Grey Area”, in International Journal of Refugee Law, Vol. 7/3, 1995, pp. 436-458.
    “Zones sanitaires et zones de sécurité”, in IRRC, Nos 390 & 392, 1951, 80 pp.
  • PATEL Bimal N., “Protection zones in international humanitarian law”, in The Indian Journal of International Law, Vol. 39/4, 1999, pp. 689-702.
  1. open cities

Readings

Suggested reading:

  • ELKIN G., “Application of the ‘Open City’ Concept to Rome 19421944”, in Air Force Law Review, 1980-1981, pp. 188-200.

 14. Civil defence

P I, Arts 61-67

Readings

Suggested reading:

  • JAKOVLJEVIC Bosko, New International Status of Civil Defence, Geneva/The Hague, Henry-Dunant Institute/M. Nijhoff, 1982, 142 pp.
  • JEANNET Stéphane, “Civil Defence 1977-1997: From Law to Practice”, in IRRC, No. 325, December 1998, pp. 715-723.
  • SCHULTZ E., Civil Defence in International Law, Copenhagen, Danish National Civil Defence and Emergency Planning Directorate, 1977, 59 pp.

 Footnotes

III. Means and methods of warfare

(See also supra Conduct of Hostilities, II. The protection of the civilian population against the effects of hostilities, 6) Prohibited attacks and 10) Precautionary measures in attack)

HR, Arts 22-34

Introductory text

[We are deeply grateful to Dr. Théo Boutruche, IHL consultant, who wrote his PhD thesis (L’interdiction des maux superflus : contribution à l’étude des principes et règles relatifs aux moyens et méthodes de guerre en droit international humanitaire, Graduate Institute of International and Development Studies, Geneva, 2008) on the concept of superfluous injury or unnecessary suffering, for this contribution.]
Under IHL the term “rules on means and methods of warfare” refers to a complex and large set of norms that are relatively fragmented and not systematically identified as such. While the term “means of warfare” commonly relates to the regulation of weapons, the term “methods” covers a broader array of rules depending on the definition considered. Traditionally, with regard to weapons, “means” encompasses weapons, weapons systems or platforms employed for the purposes of attack, whereas “methods” designates the way or manner in which the weapons are used. However, the concept of method of warfare also comprises any specific, tactical or strategic, ways of conducting hostilities that are not particularly related to weapons and that are intended to overwhelm and weaken the adversary, such as bombing, as well as the specific tactics used for attack, such as high altitude bombing. The term “methods” is rather new in treaty law.[51]

State practice offers examples of these two understandings of “methods”. The IHL governing means and methods of warfare contains two types of norms: general principles banning certain effects, and specific rules addressing particular weapons or methods. The distinction between “means” and “methods” is also related to the way IHL regulates the use of weapons. This branch of law either prohibits the use of certain weapons in any circumstances due to their inherent characteristics or it merely restricts and limits certain ways of using all weapons or certain specific weapons. For example, the prohibition of indiscriminate effects may be relevant in relation to the very nature of the effects of a weapon and at the same time for any type of weapon that can potentially be used indiscriminately.

Historically, prohibitions and limitations on means and methods of warfare were prompted by the concern to protect combatants, which saw the emergence of the principle prohibiting weapons causing superfluous injury or unnecessary suffering[52] and the ban on specific weapons, such as explosive projectiles weighing less than 400 grams[53] or dum-dum bullets[54], as well as particular methods like killing or wounding treacherously.[55] Protocol I laid down elaborate principles and rules governing means and methods of warfare aimed at protecting the civilian population and objects, such as the prohibition of indiscriminate attacks, including those which employ a method or means of combat which cannot be directed at a specific military objective,[56] or those which employ a method or means of combat the effects of which cannot be limited as required by the Protocol.[57] While most of the treaty norms pertaining to means and methods of warfare apply only in times of international armed conflict, international customary law applicable to non-international armed conflicts progressively evolved to contain the same rules in this regard.[58]

The overarching principle of IHL governing means and methods of warfare stipulates that the right of the parties to a conflict to choose means and methods of warfare is not unlimited.[59] The principles prohibiting the means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering[60] and the principle prohibiting means and methods of warfare causing indiscriminate effects[61] are derived from this. Protocol I does not list the latter principle among the basic rules under the section on means and methods of warfare, but in the section on the protection of the civilian population against effects of hostilities. Indeed, this principle protects only civilians. Protocol I further prohibits means or methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.[62]
The relationship between the general principles and the specific rules on weapons remains a delicate issue, notably concerning the extent to which the latter merely crystallize the former. For example, the prohibition to cause superfluous injury or unnecessary suffering is considered by some to outlaw in and of itself certain weapons in the absence of a particular rule, while others assert that it must be translated by States into specific prohibitions before it can produce proper legal effects. The latter approach is questionable, however, as it appears to confuse the normative value of the principle per se with the issue of its interpretation and application to specific weapons. First, it is well recognized that a weapon not covered by a specific norm remains regulated by the general principles. Second, States do rely on the principles themselves, including to prohibit methods of warfare.

Furthermore, the States parties to Protocol I are under an obligation to assess the legality of new weapons, means or methods of warfare, including in the light of the general principles.[63] General principles hence are legal rules with a normative value of their own.

Outside the Geneva Conventions and Protocols, IHL contains a series of prohibitions and limitations of use for specific weapons. Certain weapons are forbidden in all circumstances because of their characteristics,[64] while others are only governed by restrictions in use.[65] As several treaty regimes are in place, a weapon can be both prohibited and its use limited.[66]

Specific prohibited methods of warfare not particularly related to weapons primarily comprise the denial of quarter[67] and perfidy.[68] There is nevertheless no agreed list of specific prohibited methods, which may vary in State practice and according to scholars. Some include as specific prohibited methods of warfare those aimed at spreading terror, reprisals, the use of human shields, and the manipulation of the environment. Conversely, others treat those methods as distinct prohibitions, separate from the issue of methods.

Besides norms on means and methods of warfare per se, IHL also contains additional obligations with regard to the choice of means and methods when planning and deciding on an attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.[69] Those precautionary measures in attack, while being designed with reference to the protection of civilians and civilian objects, might be considered relevant for other types of means and methods of warfare to ensure respect for all relevant norms of IHL.

The exact content and scope of the term “method of warfare” within the principles and rules of IHL that refer to it remain unclear. Indeed, although the prohibition of superfluous injury or unnecessary suffering traditionally concerns the nature of means of warfare, it also covers the way to use weapons as well as specific methods with particular features. Contemporary challenges in the field of the regulation of means and methods of warfare include the issue of the interaction between the general principles in the case of a means of warfare that allows for better compliance with IHL rules protecting civilians but conversely may cause superfluous injury or unnecessary suffering to combatants.

Readings

Suggested reading:

  • BOOTHBY William H., Weapons and the Law of Armed Conflict, New York, OUP, 2009, 412 pp.
  • BOUTRUCHE Théo, L’Interdiction des Maux Superflus : Contribution à l’Étude des Principes et Règles Relatifs aux Moyens et Méthodes de Guerre en Droit International Humanitaire, Geneva, Thesis, Graduate Institute of International and Development Studies, Université de Genève, 2008, 559 pp.
  • CASSESE Antonio, “Means of Warfare: The Traditional and the New Law”, in CASSESE Antonio (ed.), The New Humanitarian Law of Armed Conflict, Naples, Editoriale Scientifica, 1976, pp. 161-198.
  • ICRC, WASZINK, Camilla & COUPLAND Robin Michael, COLLEGE D’EUROPE, Current Perspectives on Regulating Means of Warfare: Proceedings of the Bruges Colloquium, 18-19 October 2007, Collegium, Nouvelles du Collège d’Europe No. 37, 2008, 168 pp.
  • MYJER Eric P., “Means and Methods of Warfare and the Coincidence of Norms between the Humanitarian Law of Armed Conflict and the Law of Arms Control”, in HEERE Wybo P. (ed.), International law and The Hague’s 750th  anniversary, Cambridge, CUP, 1999, pp. 371-383.
  • TURNS David, “At the ‘Vanishing Point’ of International Humanitarian Law: Methods and Means of Warfare in Non-International Armed Conflicts”, German Yearbook of International Law = Jahrbuch für Internationales Recht, Vol. 45, 2002, pp. 115-148.

 1.   The basic rule: Art. 35 of Protocol I

[CIHL, Rule 70]

Quotation

 

Part III: Methods and means of warfare [...]
Section I: Methods and means of warfare
Article 35 – Basic rules

  1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
  2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. [...]
[Source: Protocol I]

Cases and Documents

Readings

Suggested reading:

  • BOUTRUCHE Théo, L’Interdiction des Maux Superflus : Contribution à l’Étude des Principes et Règles Relatifs aux Moyens et Méthodes de Guerre en Droit International Humanitaire, Geneva, Thesis, Graduate Institute of International and Development Studies, Université de Genève, 2008, 559 pp.
  • COUPLAND Robin M., “The SIrUS Project: Towards a Determination of Which Weapons Cause ‘Superfluous Injury or Unnecessary Suffering’”, Geneva, ICRC, 1997, 43 pp.
  • ICRC, Special Issue on Means of Warfare, IRRC, Vol. 87, No. 859, 2005, 604 pp.
  • MACLEOD Iain J. & ROGERS Anthony P.V., “The Use of White Phosphorus and the Law of War”, in YIHL, Vol. 10 (2007), 2009, pp. 75-97.
  • MEYROWITZ Henri, “The Principle of Superfluous Injury or Unnecessary Suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol I of 1977”, in IRRC, No. 299, October 1994, pp. 98-122.

 2.   Prohibited or restricted use of weapons

Introductory text

Lowering the level of cruelty between combatants and protecting those hors de combat and the civilian population in a more effective manner requires the regulation and, ultimately, the prohibition of certain means of warfare. To this end, several provisions of IHL applicable to international armed conflicts limit the means of warfare, i.e. weapons.[70] These provisions aim, in particular, to prohibit weapons causing “superfluous injury or unnecessary suffering”. In practice, the application of this basic rule is always a compromise between military necessity and humanity, as the principle of “superfluous injury or unnecessary suffering” has been interpreted as referring to harm that would not be justified by military utility, either because of the lack of even the slightest utility or because utility is considerably outweighed by the suffering caused. Although this standard may seem too vague to be effective, it has nevertheless led to efforts to prohibit and restrict certain conventional weapons[71] and weapons of mass destruction.[72] Although the Geneva Conventions and Additional Protocols limit means and methods of warfare (including those severely damaging the environment),[73] they neither prohibit nor restrict the use of any specific weapon; however, various other conventions do.[74] Recognizing that it is much easier to prohibit a weapon’s use prior to its incorporation into a State’s arsenal, Protocol I also places constraints on the development of new weapons.[75

Cases and Documents

Readings

Suggested reading:

  • BOOTHBY William H., Weapons and the Law of Armed Conflict, New-York, OUP, 2009, 412 pp.
  • CLARK Roger S., “Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare”, in New Criminal Law Review, Vol. 12, No. 3, 2009, pp. 366-389.
  • GREENWOOD Christopher, “The Law of Weaponry at the Start of the New Millenium”, in International Law Studies, US Naval War College, Vol. 71, 1998, pp. 185-231.
  • JHA U.C., “Prohibited Weapons in Armed Conflicts”, in ISIL Year Book of International Humanitarian and Refugee Law, Vol. 4, 2004, pp. 56-78.
  • KALSHOVEN Frits, “Arms, Armaments and International Law”, in Collected Courses, Vol. 191, 1985, p. 183-341.

Further reading:

  • BREHM Maya, “The Arms Trade and State’s Duty to Ensure Respect for Humanitarian and Human Rights Law”, in Journal of Conflict and Security Law, Vol. 12, Number 3, 2007, pp. 359-387.
  • International Institute of Humanitarian Law, The Proliferation of Weapons of Mass Destruction and International Humanitarian Law: Current Challenges, Effective Responsives, Sanremo, November 2007, 55 pp.
  • SANDOZ Yves, Des armes interdites en droit de la guerre, Thesis, Geneva, Imp. Grounauer, 1975, 137 pp.
  • TURNS David, “Weapons in the ICRC Study on Customary International Law”, in Journal of Conflict & Security Law, Vol. 11, No. 2,  2006, pp. 201-237.
  1. explosive bullets
    [CIHL, Rule 78]
  2. dum-dum bullets
    [CIHL, Rule 77]
  3. certain conventional weapons

Cases and Documents

Readings

Suggested reading:

  • KALSHOVEN Frits, “The Conventional Weapons Convention: Underlying Legal Principles”, in IRRC, No. 279, 1990, pp. 510-520.
  • MATHEWS Robert J., “The 1980 Convention on Certain Conventional Weapons: A Useful Framework Despite Earlier Disappointments”, in IRRC, No. 844, December 2001, pp. 991-1012.
  • PARKS William H., “Conventional Weapons and Weapons Review”, in YIHL, Vol. 8 (2005), 2007, pp. 55-142.
  • SANDOZ Yves, “A New Step Forward in International Law: Prohibitions or Restriction on the Use of Certain Conventional Weapons. United Nations Conference on Prohibition or Restrictions of Use of Certain Conventional Weapons”, in IRRC, No. 220, January 1981, pp. 3-18.
  • “Report of the ICRC for the Review Conference of the 1980 UN Conventions on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects”, in IRRC, No. 299, March-April 1994, pp. 123-182.

Further reading:

  • AUBERT Maurice, “The International Committee of the Red Cross and the Problem of Excessively Injurious or Indiscriminate Weapons”, in IRRC, No. 279, November-December 1990, pp. 477-497.
  • BRETTON Philippe, “La Convention du 10 avril 1981 sur l’interdiction ou la limitation de certaines armes classiques qui peuvent être considérées comme produisant des effets traumatiques excessifs ou comme frappant sans discrimination”, in AFDI, 1981, pp. 127-146.
  • COWLING M.G., “The Relationship between Military Necessity and the Principle of Superfluous Injury and Unnecessary Suffering in the Law of Armed Conflict”, in South African Yearbook of International Law, Vol. 25, 2000, pp. 131-160.
  • DÖRMANN Knut, “Conventional Disarmament: Nothing New on the Geneva Front?”, in GIEGERICH Thomas (ed.), A Wiser Century ?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years After the Second Hague Peace Conference, Berlin, Duncker and Humblot, 2009, pp. 143-166.
  • PROKOSCH Eric, “The Swiss Draft Protocol on Small-Calibre Weapon Systems”, in IRRC, No. 307, July-August 1995, pp. 411-425.
aa) mines
[CIHL, Rules 80-83]

Cases and Documents

Readings

Suggested reading:

  • CARNAHAN Burrus, “The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons”, in Military Law Review, Vol. 105, 1984, p. 73-95.
  • CAUDERAY Gérald C., “Anti-Personnel Mines”, in IRRC, No. 295, July-August 1993, pp. 273-287.
  • MARESCA Louis & MASLEN Stuart (eds), The Banning of Anti-Personnel Landmines: The Legal Contribution of the International Committee of the Red Cross [1955-1999], Cambridge, CUP, 2000, 670 pp.
  • MASLEN Stuart, Anti-Personnel Mines under Humanitarian Law: A View from the Vanishing Point, Antwerp, Intersentia, Transnational Publishers, 2001, 327 pp.
  • MASLEN Stuart & HERBY Peter, “An International Ban on Anti-Personnel Mines: History and Negociation of the ‘Ottawa Treaty’”, in IRRC, No. 325, December 1998, pp. 693-713.
  • PETERS Ann, “Landmines in the 21st Century”, in International Relations, Vol. 13, 1996, pp. 37-50.

Further reading:

  • DOSWALD-BECK Louise & CAUDERAY Gérald C., “The Development of New Anti-Personnel Weapons”, in IRRC, No. 279, November-December 1990, pp. 565-577.
  • RAUCH Elmar, “The Protection of the Civilian Population in International Armed Conflicts and the Use of Land Mines”, in German Yearbook of International Law, Vol. 24, 1981, p. 262-87.
  • ROGERS Anthony P.V., “Mines, Booby-Traps and other Devices”, in IRRC, No. 279, November-December 1990, pp. 521-534.
  • SCHERER Sabine, “L’extinction des sentinelles éternelles, les mines antipersonnel”, in Défense nationale, Vol. 55/12, 1999, pp. 91-103.
  • SHARNETZKA Craig S., “The Oslo Land Mine Treaty and an Analysis of the United States Decision not to Sign”, in Dickinson Journal of International Law, Vol. 16/3, 1998, pp. 661-689.
  • “Landmines Must be Stopped”, in ICRC, September 1995, 65 pp.
bb) incendiary weapons

[CIHL, Rules 84 and 85]

Cases and Documents

Readings

Suggested reading:

  • JUREK Matthias, “White Phosphorous: An Outlawed Weapon?”, in Humanitäres Völkerrecht, Vol. 21(4), pp. 251-257.
  • MACLEOD Iain J. & ROGERS Anthony P.V., “The Use of White Phosphorus and the Law of War”, in YIHL, Vol. 10 (2007), 2009, pp. 75-97.
  • PARKS William H., “The Protocol on Incendiary Weapons”, in IRRC, No. 279, November-December 1990, pp. 584-604.
cc) non-detectable fragments
[CIHL, Rule 79]

Cases and Documents

dd) blinding weapons

[CIHL, Rule 86]

Cases and Documents

Readings

Suggested reading:

  • CARNAHAN Burrus & ROBERTSON Marjorie, “The Protocol on Blinding Laser Weapons: A New Direction for Humanitarian Law”, in AJIL, Vol. 90/3, 1996, pp. 484-490.
  • DOSWALD-BECK Louise, “New Protocol on Blinding Laser Weapons”, in IRRC, No. 312, May-June 1996, pp. 272-299.

Further reading:

  • PETERS Ann, “Blinding Laser Weapons: New Limits on the Technology of Warfare”, in Loyola of Los Angeles International and Comparative Law Journal, Vol. 18, 1998, pp.733-766.
ee) explosive remnants of war

Cases and Documents

Readings

Suggested reading:

  • MARESCA Louis, “A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons”, in IRRC, No. 856, December 2004, pp. 815-835.
  • MARAUHN Thilo, “The Silent Threat: Explosive Remnants of War, in Frieden in Freiheit = Peace in Liberty = Paix en liberté, Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos, 2008, pp. 193-205.
ff) cluster munitions

Cases and Documents

Readings

Suggested reading:

  • BARAK Eitan, “None to Be Trusted: Israel’s Use of Cluster Munitions in the Second Lebanon War and the Case for the Convention on Cluster Munitions”, in American University International Law Review, Vol. 25, No. 3, 2010, pp. 423-483.
  • BLACK-BRANCH Jonathan, “The Legal Status of Cluster Munitions under International Humanitarian Law: Indiscriminate Weapons of War”, in Humanitäres Völkerrecht: Informationsschriften = Journal of International Law of Peace and Armed Conflict, Vol. 22, 2009, pp. 186-193. 
  • BOOTHBY William, Cluster Bombs: Is There a Case for New Law?, Cambridge, Massachusetts, Harvard University (Occasional Paper Series/ Program on Humanitarian and Conflict Research, No. 5), 2005, 46 pp.
  • BORRIE, John, UNIDIR, Unacceptable Harm: a History of How the Treaty to Ban Cluster Munitions Was Won, New York, Geneva, United Nations, 2009, 488 pp.
  • CAPATI Carmel, “The Tragedy of Cluster Bombs in Laos: An Argument for Inclusion in the Proposed International Ban on Landmines”, in Wisconsin International Law Journal, Vol. 16/1, 1997, pp. 227-245.
  • DAVID Eric, “La Convention de 2008 sur les armes à sous-munitions”, in RGDIP, T. 113, No. 4, 2009, pp. 785-804.
  • DI RUZZA Tommaso, “The Convention on Cluster Munitions: Towards a Balance Between Humanitarian and Military Considerations?”, in Military Law and the Law of War Review = Revue de droit militaire et de droit de la guerre, Vol. 47, No. 3-4, 2008, pp. 405-448.
  • DOCHERTY Bonnie, “Breaking New Ground: the Convention on Cluster Munitions and the Evolution of International Humanitarian Law”, in Human Rights Quarterly, Vol. 31, no. 4, November 2009, pp. 934-963. 
  • Geneva International Centre for Humanitarian Demining (GICHD), A Guide to Cluster Munitions, Geneva, GICHD, 2nd ed., 2009, 140 pp.
  • HERTHEL Thomas J., “On the Chopping Block: Cluster Munitions and the Law of War”, in Air Force Law Review, Vol. 59, 2001, pp. 229-268.
  • RAPPERT Brian & MOYES Richard, “Enhancing the Protection of Civilians from Armed Conflict: Precautionary Lessons”, in Medicine, Conflict and Survival, Vol. 26, No. 1, January-March 2010, pp. 24-47.
  • UNIDIR, The Humanitarian Impact of Cluster Munitions, Geneva, UNIDIR, 2008, 69 pp.
  • WIEBE Virgil, “Footprints of Death: Cluster Bombs as Indiscriminate Weapons under International Humanitarian Law”, in MJIL, Vol. 22/1, 2000, pp. 85-167.
gg) other weapons for which limitations are under discussion

–  light weapons
–  anti-vehicle mines
–  fragmentation weapons
  1.  chemical weapons
    [CIHL, Rules 74-76]

Cases and Documents

Readings

Suggested reading:

  • BOTHE Michael (ed.), The New Chemical Weapons Convention: Implementation and Prospects, The Hague, Kluwer Law International, 1998, 613 pp.
    International Institute of Humanitarian Law, The Chemical Weapons Convention: between Disarmament and International Humanitarian Law: [international seminar], Sanremo, Italy, 15 February 2008, Sanremo, February 2008, 24 pp.
  • KRUTZSCH Walter & TRAPPS Ralph (eds), A Commentary on the Chemical Weapons Convention, Dordrecht, M. Nijhoff, 1994, 543 pp.
  • SOLOMON Brian (ed.), Chemical and Biological Warfare, New York, Wilson, 1999, 158 pp.

Further reading:

  • FENWICK Charles G., “New Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict”, in CYIL, Vol. 19, 1981, pp. 229-256.
  • GASPARINI Giovanni & RONZITTI Natalino (eds), The Tenth Anniversary of the CWC’s Entry into Force: Achievements and Problems, Roma, Istituto Affari Internazionali, December 2007, 128 pp.
  • HUNT Cecil, “The Potential Contribution of the Chemical Weapons Convention to Combating Terrorism”, in MJIL, Vol. 20/3, 1999, pp. 523-535.
  1. poison
    HR, Art. 23(a) [CIHL, Rule 72]
  2.  bacteriological and biological weapons
    [CIHL, Rule 73]

Cases and Documents

Readings

Suggested reading:

  • DANDO Malcolm, “The Development of International Legal Constraints on Biological Warfare in the 20th Century”, in The Finnish Yearbook of International Law, Vol. 8, 1997, pp. 1-69.
  • GOLDBLAT Jozef, “The Biological Weapons Convention – An Overview”, in IRRC, No. 318, May-June 1997, pp. 251-265.
  • ROGERS Paul, “Biological Weapons”, in Medicine, Conflict and Survival, Vol. 18/2, 2002, 105 pp.
  • SOLOMON Brian (ed.), Chemical and Biological Warfare, New York, Wilson, 1999, 158 pp.
  • ZILINSKAS Raymond A. (ed.), Biological Warfare, Boulder, Lynne Rienner Publishers, 2000, 309 pp.

Further reading:

  • CLUNAN Anne L., LAVOY Peter & MARTIN Susan B. (eds), Terrorism, War, or Disease?: Unraveling the Use of Biological Weapons, Stanford, Stanford Security Studies, 2008, 350 pp.
  • KELLMAN Barry, “Biological Terrorism: Legal Measures for Preventing Catastrophe”, in Harvard Journal of Law and Public Policy, Vol. 24/2, 2001, p. 417-488.
  • LEDERBERG Joshua (ed.), Biological Weapons: Limiting the Threat, Cambridge, Massachusetts, MIT Press, 1999, 351 pp.
  • ZALUAR Achilles & MONTELEONE-NETO Roque, “The 1972 Biological Weapons Convention – A View from the South”, in IRRC, No. 318, May-June 1997, pp. 295-308.
  1. nuclear weapons

Quotation

 3. Mr. PAOLINI (France) made the following statement:
[...]
[A]lready in 1973, the French Government noted that the ICRC did not include any regulations on nuclear weapons in its drafts. In participating in the preparation of the additional Protocols, therefore, the French Government has taken into consideration only conflicts using conventional weapons. It accordingly wishes to stress that in its view the rules of the Protocols do not apply to the use of nuclear weapons.[Source: Official Records of the Diplomatic Conference on the reaffirmation and development of International Humanitarian Law applicable in armed conflicts, Geneva (1974-1977), Federal Political Department, Bern, Vol. II, 1978, p. 193]

Cases and Documents

Readings

Suggested reading:

  • BARRILLOT Bruno & RICHARD Claudine-Mariko, Les armes à uranium appauvri : jalons pour une interdiction, Brussels, Complexe, 2001, 105 pp.
  • BOISSON DE CHAZOURNES, Laurence & SANDS Philippe (eds), International Law, the International Court of Justice and Nuclear Weapons, Cambridge, CUP, 1999, 592 pp.
  • CRAWFORD James, “Legal Aspects of a Nuclear Weapons Convention”, in African Yearbook of International Law, Vol. 6, 1998, pp. 153-179.
  • KOPPE Erik, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict, Portland, Hart Publishing, 2008, 447 pp.
  • MEYROWITZ Henri, “La stratégie nucléaire et le Protocole additionnel I aux Conventions de Genève de 1949”, in RGDIP, Vol. 83/4, 1979, pp. 905-961.
  • SUR Serge (ed.), Le droit international des armes nucléaires : journée d’études, Paris, Pedone, 1998, 206 pp.
  • “Special Issue: The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons and International Humanitarian Law”, in IRRC, No. 316, February 1997, p. 3 ff (articles of CONDORELLI Luigi, DAVID Éric, DOSWALD-BECK Louise and GREENWOOD Christopher).

Further reading:

  • BRING Ove E. & REIMAN H.B., “Redressing a Wrong Question: The 1977 Protocols Additional to the 1949 Geneva Conventions and the Issue of Nuclear Weapons”, in Netherlands International Law Review, Vol. 21, 1986, pp. 99-105.
  • BURTON Jeremy T., “Depleted Morality: Yugoslavia v. Ten NATO Members and Depleted Uranium”, in Wisconsin International Law Journal, Vol. 19/1, pp 17-40.
  • FALK Richard A., “The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki”, in AJIL, Vol. 59, 1966, pp. 759-793.
  • GARCIA RICO Elena del Mar, El uso de las armas nucleares y el derecho internacional: análisis sobre la legalidad de su empleo, Madrid, Tecnos, 1999, 191 pp.
  • GRADITZKY Thomas, “La licéité de l’emploi des armes nucléaires et la protection de l’environnement”, in L’observateur des Nations Unies, Vol. 2, 1997, pp. 23-38.
  • SCHWARZENBERGER Georg, The Legality of Nuclear Weapons, London, Stevens & Sons, 1958, 61 pp.
  • SINGH Nagendra, Nuclear Weapons and International Law, London, Stevens & Sons, 1959, 267 pp.
  1. new means and methods

P I, Art. 36

As a measure of precaution, Art. 36 of Protocol I requires the States Parties to assess whether the use of any new weapon or of any new method of warfare that they develop or plan to acquire or deploy in operations is allowed by, and compatible with, international law.

The rapid evolution of new military technologies and the development of potentially devastating means and methods of warfare lends added resonance to this legal review.

The parties to Protocol I are obliged to conduct such reviews, but it would also be appropriate for States that are not parties to Protocol I to do so. This would allow them to verify that their armed forces act in conformity with international rules regulating the use of means and methods of warfare.
Art. 36 does not specify the practical modalities of such reviews, which are left to the parties to decide. It is understood that the legal review should cover the weapons themselves and the ways in which they might be used. Particular attention should be paid to the potential effect of the weapon concerned on both civilians (prohibition of indiscriminate effects) and combatants (prohibition of unnecessary suffering).

Cases and Documents

Readings

Suggested reading:

  • BEARD Jack M., “Law and War in the Virtual Era”, in AJIL, Vol. 103, No. 3, July 2009, pp. 409-445.
  • DAOUST Isabelle, COUPLAND Robin & HISHOEY Rikke, “New Wars, New Weapons?: The Obligation of States to Assess the Legality of Means and Methods of Warfare”, in IRRC, No. 846, June 2002, pp. 345-363.
  • DOSWALD-BECK Louise & CAUDERAY Gérald C., “The Development of New Anti-Personnel Weapons”, in IRRC, No. 279, November-December 1990, pp. 565-577.
  • ICRC, A Guide to Legal Review of New Weapons, Means and Methods of Warfare. Measures to Implement Art. 36, Geneva, ICRC, 2007, 34 pp.
  • KRÜGER-SPRENGEL Friedhelm, “Non-Lethal Weapons: A Humanitarian Perspective in Modern Conflict”, in RDMDG, Vol. 42/3-4, 2003, pp. 357-377.
  • LAWAND Kathleen, “Reviewing the Legality of New Weapons, Means and Methods of Warfare”, in IRRC, December 2006, pp. 925-930.
  • McCELLAND Justin, “The Review of Weapons in Accordance with Article 36 of Additional Protocol I, in IRRC, No. 850, June 2003, pp. 397-415.
  • PALOJARVI Pia, A Battle in Bits and Bytes: Computer Network Attacks and the Law of Armed Conflict, Helsinki, The Erik Castrén Institute of International Law and Human Rights, 2009, 186 pp. 
  • PROKOSCH Éric, “Arguments for Restricting Cluster Weapons: Humanitarian Protection Versus ‘Military Necessity’”, in IRRC, No. 299, March-April 1994, pp. 183-193.
  • PUCKETT Christopher, “Comment: In This Era of ’Smart Weapons’, is a State under an International Legal Obligation to Use Precision-Guided Technology in Armed Conflict?”, in Emory International Law Review, Vol. 18, 2004, pp. 645-723.
  • SCHMITT Michael N., War, Technology, and International Humanitarian Law, Cambridge, Program on Humanitarian Policy and Conflict Research, 2005, 62 pp.

Further reading:

  • BROWN Davis, “A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict”, in Harvard International Law Journal, Vol. 47, No. 1, 2006, pp. 179-221.
  • FRY James D., “Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law”, in Columbia Journal of Transnational Law, Vol. 44, No. 2, 2006, pp. 453-519.
  • GRAHAM David E., “Cyber Threats and the Law of War”, in Journal of National Security Law and Policy, Vol. 4, No. 1, 2010, pp. 87-102.
  • JENKS Chris, “Law from Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict”, in North Dakota Law Review, Vol. 85, No. 3, pp. 649-671.
  • JENSEN Eric Talbot, “Cyber Warfare and Precautions against the Effects of Attacks”, in Texas Law Review, Vol. 88, Issue 7, June 2010, pp. 1539-1569.
  • KAURIN Pauline, “With Fear and Trembling: an Ethical Framework for Non-Lethal Weapons”, in Journal of Military Ethics, Vol. 9, No. 1, 2010, pp. 100-114.
  • KELSEY Jeffrey T. G., “Hacking Into International Humanitarian Law: the Principles of Distinction and Neutrality in the Age of Cyber Warfare, Michigan Law Review, Vol. 106, No. 7, May 2008,  pp. 1427-1451.
  • KODAR Erki, “Computer Network Attacks in the Grey Areas of Jus ad Bellum and Jus in Bello”, in Baltic Yearbook of International Law, Vol. 9, 2009, pp. 133-155.
  • KOPLOW David A., “ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons”, in Michigan Journal of International Law, Vol. 30, No. 4, 2009, pp. 1187-1272.
  • O’CONNELL Mary Ellen, “Unlawful Killing with Combat Drones: a Case Study of Pakistan, 2004-2009, in Notre Dame Law School Legal Studies Research Paper, No. 09-43, 2009, 26 pp.
  • RID Thomas & HECKER Marc, War 2.0: Irregular Warfare in the Information Age, Westport, London, Praeger Security International, 2009, 280 pp. 
  • SCHAAP Arie J., “Cyber Warfare Operations: Development and Use under International Law”, in The Air Force Law Review, Vol. 64, 2009, pp. 121-173.
  • STEVENS Sharon R., “Internet War Crimes Tribunals and Security in an Interconnected World”, in Transnational Law and Contemporary Problems, Vol. 18, Issue 3, 2009, pp. 657-720.
  • TODD Graham H., “Armed Attack in Cyberspace: Deterring Asymmetric Warfare with an Asymmetric Definition”, in The Air Force Law Review, Vol. 64, 2009, pp. 65-102.
  • OHLIN Jens David, GOVERN Kevin & FINKELSTEIN Claire, "Cyber War: Law and Ethics for Virtual Conflicts", in Oxford Univ. Press, March 2015.

 3.   Prohibited methods of warfare

Introductory text

The concept of method of warfare encompasses any tactical or strategic procedure meant to outweigh or weaken the adversary.

The limitations or prohibitions to resort to specific methods of warfare stipulated in IHL are predicated on three premises:

  • the choice of the methods of warfare is not unlimited;[76]
  • the use of methods of a nature to cause unnecessary suffering or superfluous injury is forbidden;[77]
  • the only legitimate object of war is to weaken the military forces of the enemy.[78]

Contemporary IHL forbids, for instance, methods of warfare involving terror,[79] starvation,[80] reprisals against protected persons and objects,[81] pillage,[82] the taking of hostages,[83] enforced enrolment of protected persons[84] and deportations.[85]

Under the specific heading “prohibited methods of warfare”, two methods of warfare are usually discussed, namely perfidy and denial of quarter.

Unlike ruses of war,[86] which are lawful, perfidy[87] is outlawed in IHL. Ruses of war are intended to mislead an adversary or to induce him to act recklessly. Perfidy, on the contrary, invites the confidence of an adversary and leads him to believe that he is entitled to or is obliged to provide protection under the rules of IHL.

The main aim of the prohibition of the denial of quarter[88] is to protect combatants when they fall into enemy hands by ensuring that they will not be killed. The objective is to prevent the following acts: to order that there shall be no survivors, to threaten the adversary therewith, or to conduct hostilities on this basis.

Most cases of perfidy and denial of quarter are grave breaches of IHL and hence war crimes.

Cases and Documents

  1. giving or ordering no quarter
    P I, Art. 40 [CIHL, Rule 46]

Cases and Documents

  1. perfidy:
    the distinction between perfidy and permissible ruses of war
    P I, Art. 37 [CIHL, Rules 57-65]

Cases and Documents

Readings

Suggested reading:

  • FLECK Dieter, “Ruses of War and Prohibition of Perfidy”, in RDMDG, Vol. 13/2, 1974, pp. 269-314.
  • HALL Mary T., “False Colors and Dummy Ships: The Use of Ruse in Naval Warfare”, in Readings on International Law from the Naval War College Review, 1995, pp. 491-500.

Further reading:

  • HECHT Ben, Perfidy, New York, Messner, 1961, 281 pp. JOBST Valentine, “Is the Wearing of the Enemy’s Uniform a Violation of the Laws of War?”, in AJIL, Vol. 35/3, 1941, pp. 435-442.

Cases and Documents

  1. starvation of civilians
    (See infra, Conduct of Hostilities, IV. International Humanitarian Law and Humanitarian Assistance)

Cases and Documents

4. Cyber warfare

The term cyber warfare can be defined as the means and methods of warfare that rely on information technology and are used in situations of armed conflict. The second part of the definition is of importance: IHL will only apply to cyber operations occurring during – or triggering by themselves – an armed conflict. The debates on whether a cyber-attack may amount to a “use of force” or even an “armed attack” under the UN Charter, which are ius ad bellum issues, are distinct, but parallel to the question of whether a cyber-attack alone can trigger the applicability of the IHL of international or of non-international armed conflicts. Determining the beginning of an armed conflict itself remains tricky in situations where cyber-attacks are employed alone, short of any kinetic use of force.  It is argued that the respective traditional thresholds for international and non-international armed conflict should also be applied in such situations [89]. Even then, in practice, the nature of information technology often makes it difficult to attribute an attack to a State or to an armed group (which is important to differentiate international from non-international armed conflicts) or to determine the existence of a sufficiently organized armed group (which is necessary to trigger IHL of non-international armed conflicts).

Once the applicability of IHL is triggered, the question becomes one of the adaptability of the rules on the conduct of hostilities. Do cyber attacks amount to “attacks” in the sense of Article 49 of Protocol I [90]?  Is it necessary for them to result in physical consequences such as destruction of objects or injury or death of persons? Some argue that acts resulting in mere destruction of data, i.e. interference with information systems, should also be considered as amounting to attacks at least if they have a considerable effect upon the targeted party[91].  This question is conceptually distinct from the above-mentioned question of when a cyber operation triggers an armed conflict, but similar elements may be decisive for both answers.

If considered an attack under the IHL meaning, a cyber operation will have to comply with the principles of distinction, proportionality and precautions.

Looking at distinction first, the principle is put at stake by the nature of information networks: with most military networks relying on civilian infrastructure (optic cables, satellites, etc.), the latter virtually becomes a "dual use" object with both civilian and military functions, leading to increased difficulties in effectively identifying military objectives. In addition, while destruction of information is at the centre of the majority of cyber operations, military objectives are circumscribed to objects under IHL [92].  As a consequence, the question arises of whether data, which is by definition intangible, can ever be considered a legitimate target. With regards to persons, may a hacker operating for a party to an armed conflict be considered as directly participating in hostilities?

Second, applying the principle of proportionality to cyber operations is not an evident task either. The interconnected nature of cyber space means that any act may result in infinite reverberating or "knock-on" effects, which may easily be considered disproportionate in relation to the concrete and direct military advantage anticipated [93].  Another recurring question concerns the attacks that do not result in any destruction or loss of life, but only in mere inconvenience for civilians, mainly because civilian objects are rendered inoperative for a certain amount of time. Inconvenience not being included in the definition of proportionality, a majority of experts conclude that "inconvenience, irritation, stress, or fear […] do not qualify as collateral damage because they do not amount to “incidental loss of civilian life, injury to civilians, damage to civilian objects” [94].  

Finally, as one can imagine, the issue of interconnectedness also affects the principle of precaution, in particular the obligation for parties to take passive precautions in segregating between military objectives and the civilian population and civilian objects [95].  

In the light of such new challenges, legal experts met in Tallinn to discuss whether and how the rules of IHL could actually be applied to cyber operations. This resulted in the Tallinn Manual on the International Law Applicable to Cyber Warfare [96],  which brings some clarification to some of the issues mentioned here as well as to numerous other ones, and at least presents the remaining controversies. In the end, it is essential to continue the discussion in order to determine whether the traditional rules of IHL provide sufficient protection to civilians from the effects of warfare, keeping in mind the enormous humanitarian impact that some cyber operations may have in the real world. It may be that this is one of the few fields in which the existing rules of IHL are indeed inadequate, because of the completely different environment in which cyber operations are conducted and because they are necessarily either over-inclusive or under-inclusive on some issues. Until such new regulation is in force, the existing rules have anyway to be applied according to their object and purpose. The Tallinn Manual makes many useful suggestions in this respect.

Cases and Documents

Readings

Suggested reading:

  • BEARD Jack M., "Law and War in the Virtual Era", in AJIL, Vol. 103, No. 3, July 2009, pp. 409-445
  • BROWN Davis, "A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict", in Harvard International Law Journal, vol. 47, No. 1, 2006, pp. 179-221
  • CRAWFORD Emily, "Virtual Battlegrounds: Direct Participation in Cyber Warfare", Sydney Law School Legal Studies Research Paper No. 12/10 (2012)
  • DINNISS Heather Harrison, Cyber Warfare and the Laws of War, Cambridge, Cambridge Studies in International and Comparative Law, 2012
  • DROEGE Cordula, Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians, IRRC 94 (2012), 533
  • GRAHAM David E., "Cyber Threats and the Law of War", in Journal of National Security Law and Policy, vol. 4, No. 1, 2010, pp. 87-102
  • HATHAWAY Oona A., CROOTOF Rebecca, LEVITZ Philip, NIX Haley, NOWLAN Aileen, PERDUE William & SIEGEL Julia, "The Law of Cyber-Attack", California Law Review, Vol. 100 (2012), pp. 817-885
  • JENSEN Eric Talbot, "Cyber Warfare and Precautions Against the Effects of Attacks", Texas Law Review, Vol. 88 (2010), pp. 1533-1569
  • KELSEY Jeffrey T. G., "Hacking Into International Humanitarian Law: the Principles of Distinction and Neutrality in the Age of Cyber Warfare", Michigan Law Review, vol. 106, No. 7, May 2008, pp. 1427-1451
  • KESSLER Oliver & WERNER Wouter, "Expertise, Uncertainty, and International Law: A Study of the Tallinn Manual on Cyberwarfare", in Leiden Journal of International Law, Vol. 26, Issue 04, December 2013, pp 793-810
  • KODAR Erki, "Computer Network Attacks in the Grey Areas of Jus ad Bellum and Jus in Bello", in Baltic Yearbook of International Law, vol. 9, 2009, pp. 133-155
  • LUBELL Noam, "Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?", International Law Studies, Vol. 89, 2013, pp. 252-275
  • MELZER Nils, Cyberwarfare and International Law, United Nations Institute for Disarmament Research (UNIDIR) Resources, 2011
  • PALOJARVI Pia, A Battle in Bits and Bytes: Computer Network Attacks and the Law of Armed Conflict, Helsinki, The Erik Castrén Institute of International Law and Human Rights, 2009, 186 pp.
  • RALTCHEV Christo C., Cybergewalt, Dissertation, Fribourg/Sofia, 2013
  • RID Thomas & HECKER Marc, War 2.0: Irregular Warfare in the Information Age, Westport, London, Praeger Security International, 2009, 280 pp.
  • SCHAAP Arie J., "Cyber Warfare Operations: Development and Use under International Law", in The Air Force Law Review, vol. 64, 2009, pp. 121-173
  • SCHMITT Michael, "Classification of Cyber Conflict", Journal of Conflict & Security Law, Vol. 17, No. 2, 2012, pp. 245–260
  • SCHMITT Michael, The Law of Cyber Warfare: Quo Vadis?, SLPR 25 (2014), 269
  • SCHMITT Michael & VIHUL Liis, "The International Law of Attribution During Proxy “Wars” in Cyberspace", Fletcher Security Review, Vol. I (II), 2014, pp. 55-73
  • THÜMMEL Juliane, Computernetzwerkoperationen innerhalb internationaler bewaffneter Konflikte, Dissertation, Hamburg, 2011
  • TODD Graham H., "Armed Attack in Cyberspace: Deterring Asymmetric Warfare with an Asymmetric  Definition", in The Air Force Law Review, vol. 64, 2009, pp. 65-102

 Footnotes

IV. IHL and Humanitarian Assistance

Introductory text

IHL recognizes that the civilian population of a State affected by an armed conflict is entitled to receive humanitarian assistance. It regulates in particular the conditions for providing humanitarian assistance, in the form of food, medicines, medical equipment or other vital supplies, to civilians in need.

During an international armed conflict, belligerents are thus under the obligation to permit relief operations for the benefit of civilians, including enemy civilians.
Art. 23 of Convention IV outlines the basic principles applicable to relief assistance for particularly vulnerable groups among the civilian population: children under fifteen and pregnant and nursing mothers. It also grants the States concerned the right to inspect the contents and verify the destination of relief supplies, as well as to refuse the passage of relief goods if they have well-founded reasons to believe that they will not be distributed to the victims but rather used in the military effort.

Art. 70 of Protocol I has considerably developed the right to humanitarian assistance. Under this provision, relief operations must be carried out for the benefit of the entire civilian population if there is a general shortage of indispensable supplies. However, Art. 70 contains a severe limitation: it stipulates that the consent of all the parties concerned – including that of the State receiving the aid – is necessary for such assistance.

In occupied territories, the occupying power has to make sure that the population receives adequate medical and food supplies.[89] If this proves impossible, the occupying power is obliged to permit relief operations by third States or by an impartial organization, and to facilitate such operations.[90]

The rules regulating humanitarian assistance during non-international armed conflicts are far less developed. However, Art. 18(2) of Protocol II stipulates that: “If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.”

Although Art. 18 undoubtedly enhances the protection of the civilian population, it has been strongly criticized because it also makes relief actions contingent on government consent. Art. 18 can, however, also be construed as implying that the government has to give this consent when the stipulated conditions are fulfilled.

Readings

Suggested reading:

  • BRAUMAN Rony, L’action humanitaire, Paris, Flammarion, 2000.
  • International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa, International Development Research Centre, 2001, 91 pp., online: http://www.iciss.ca.
  • MACALISTER-SMITH Peter, International Humanitarian Assistance, Disaster Relief Actions in International Law and Organization, Dordrecht/Geneva, M. Nijhoff /Henry-Dunant Institute, 1985, 244 pp.
  • MOORE Jonathan (ed.), Hard Choices: Moral Dilemmas in Humanitarian Intervention, New York, Rownan and Littlefield, 1998, 322 pp.
  • PASQUIER André, “Action humanitaire : une légitimité en question?”, in IRRC, No. 842, June 2001, 311-321.
  • PEJIC Jelena, “The Right to Food in Situations of Armed Conflict: The Legal Framework”, in IRRC, No. 844, December 2001, pp. 1097-1110.
  • RYFMAN Philippe, L’action humanitaire, Paris, La Documentation française, coll. Problèmes politiques et sociaux. Dossiers d’actualité mondiale, No. 864, October 2001, 84 pp.
  • RYNIKER Anne, “The ICRC’s Position on ‘Humanitarian Intervention’”, in IRRC, No. 842, June 2001, pp. 527-532.
  • ZANETTI Véronique, L’intervention humanitaire : droits des individus, devoirs des États, Genève, Labor et Fides, 2008, 345 pp.

Further reading:

  • BELLAMY Alex J., Responsibility to Protect: the Global Effort to End Mass Atrocities, Cambridge, Polity, 2009, 249 pp.
  • BETTATI Mario & KOUCHNER Bernard, Le devoir d’ingérence, peut-on les laisser mourir ?, Paris, Denoël, 1987, 300 pp.
  • BOISSON DE CHAZOURNES Laurence & CONDORELLI Luigi, “Quelles perspectives pour la responsabilité de protéger ?”, in Les droits de l’homme et la constitution : études en l’honneur du professeur Giorgio Malinverni, Geneva, Schulthess, 2007, pp. 329-337.
  • CHOMSKY Noam, The New Military Humanism : Lessons from Kosovo, Monroe, Common Courage Press, 1999, 199 pp.
  • CORTEN Olivier & KLEIN Pierre, Droit d’ingérence ou obligation de réaction ?, 2nd ed., Brussels, Bruylant, 1996, 309 pp.
  • DENNE Sarah R., “Re-Thinking Humanitarian Aid in the Post-Gulf War Era: the International Committee of the Red Cross Takes the Lead”, in Case Western Reserve Journal of International Law, Vol. 39, No. 3, 2007, pp. 867-895.
  • DOMESTICI-MET Marie-José, “Aspects juridiques récents de l’assistance humanitaire”, in AFDI, 1989, pp. 117-148.
  • DOMESTICI-MET Marie-José, “Aspects récents du droit et de l’assistance humanitaires”, in L’observateur des Nations Unies, No. 10, printemps-été 2001, pp. 1-99.
  • EVANS Gareth, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All, Washington, Brookings Institution Press, 2008, 349 pp.
  • HOFMANN Claudia, “Engaging Non-State Armed Groups in Humanitarian Action”, in International Peacekeeping, Vol. 13, No. 3, September 2006, pp. 396-409.
  • KRÄHENBÜHL Pierre, “Conflict in the Balkans: Human Tragedies and the Challenge to Independent Humanitarian Action”, in IRRC, No. 837, March 2000, pp. 11-29.
  • MACALISTER-SMITH Peter, “Protection of the Civilian Population and the Prohibition of Starvation as a Method of Warfare – Draft Texts on International Humanitarian Assistance”, in IRRC, No. 283, September-October 1991, pp. 440-459.
  • MICHELETTI Pierre, Humanitaire : s’adapter ou renoncer, Paris, Marabout, 2008, 245 pp.
  • PATTISON James, “Whose Responsibility to Protect?: the Duties of Humanitarian Intervention”, in Journal of Military Ethics, Vol. 7, Issue 4, 2008, pp. 262-283.
  • PATTISON James, “Humanitarian Intervention, the Responsibility to Protect and Jus in Bello”, in Global Responsibility to Protect, Vol. 1, No. 3, 2009, pp. 364-391.
  • PEROUSE DE MONTCLOS Marc-Antoine, L’aide humanitaire, aide à la guerre ?, Brussels, Complexe, 2001, 207 pp.
  • PFANNER Tony, “Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action”, in IRRC, Vol. 87, No. 865, March 2005, pp. 149-174.
  • PLATTNER Denise, “Assistance to the Civilian Population: The Development and Present State of International Humanitarian Law”, in IRRC, No. 288, May-June 1992, pp. 249-263.
  • REFSLUND SORENSEN Birgitte, “Violence and Humanitarian Assistance: Reflections on an Intricate Relationship”, in Journal of Humanitarian Assistance, September 2006, 24 pp.
  • SANDOZ Yves, “‘Droit’ or ‘devoir d’ingérence’ and the right to assistance: the issues involved”, in IRRC, No. 288, June 1992, pp. 215-227.
  • SANDVIK-NYLUND Monika, Caught in Conflicts: Civilian Victims, Humanitarian Assistance and International Law, Turku/Åbo, Åbo Akademi University, Institute for Human Rights, 2003, 2nd ed., 174 pp.
  • SHOTWELL B. Charles, “Food and the Use of Force, the Role of Humanitarian Principles in the Persian Gulf Crisis and Beyond”, in Revue de Droit Pénal et de Criminologie, Vol. 30, 1999, pp. 347-377.
  • STOFFELS Ruth-Abril, “Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps”, in IRRC, No. 855, September 2004, pp. 514-546.
  • STUDER Meinrad, “The ICRC and Civil-Military Relations in Armed Conflict”, in IRRC, No. 842, June 2001, pp. 367-391.
  • SUHRKE Astri & KLUSMEYER Douglas, “Between Principles and Politics: Lessons from Iraq for Humnaitarian Action”, in Journal of Refugee Studies, Vol. 17, No. 3, 2004, pp. 273-285.
  • WILLS Siobhan, “Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations Engaged in Peace Support Operations”, in Journal of Conflict and Security Law, Vol. 9-3, Winter 2004, pp. 387-418.
  • ZWITTER Andrej, “Humanitarian Action on the Battlefields of Global War on Terror”, The Journal of Humanitarian Assistance, October 2008, pp. 1-23.

CASES AND DOCUMENTS

  • ICRC, International humanitarian law and the challenges of contemporary armed conflicts in 2015 [paras 127-149]

 1.   Principles

CASES AND DOCUMENTS

  • ICRC, International humanitarian law and the challenges of contemporary armed conflicts in 2015 [para. 130]

a)    starvation of civilians: a prohibited method of warfare
P I, 54(1); P II, 14 [CIHL, Rule 53]

Cases and Documents

Readings

Suggested reading:

  • DOMESTICI-MET Marie-José, “Contre la faim provoquée, les outils du droit”, in Action contre la Faim, Géopolitique de la faim, Édition 2000, Paris, PUF, 1999, pp. 285-294.
  • MACALISTER-SMITH Peter, “Protection of the Civilian Population and the Prohibition of Starvation as a Method of Warfare – Draft Texts on International Humanitarian Assistance”, in IRRC, No. 283, September-October 1991, pp. 440-459.
  • MAYER Jean, “Starvation as a Weapon”, in ROSE Steven (ed.), CBW: Chemical and Biological Warfare, London conference on CBW, London, Harrap, 1968, pp. 76-84.

Further reading:

  • DINSTEIN Yoram, “Siege Warfare and the Starvation of Civilians”, in DELISSEN Astrid J.-M. & TANJA Gerard J. (eds), Humanitarian Law of Armed Conflicts, Challenges Ahead, Essays in Honour of Frits Kalshoven, Dordrecht, M. Nijhoff, 1991, pp. 145-152.

b)   the right of the civilian population to be assisted
[CIHL, Rules 55 and 56]

Cases and Documents

Readings

Suggested reading:

  • PLATTNER Denise, “Assistance to the Civilian Population: The Development and Present State of International Humanitarian Law”, in IRRC, No. 288, May-June 1992, pp. 249-263.
  • ZEMMALI Ameur, “The Right to Water in Times of Armed Conflict”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 307-318.

Further reading:

  • JAKOVLJEVIC Bosko, “The Right to Humanitarian Assistance: Legal Aspects”, in IRRC, No. 259, 1987, pp. 469-484.

c)    the belligerents bear primary responsibility

Cases and Documents

d)   medical assistance may benefit civilians or combatants

Cases and Documents

 2.   Definition and characteristics of humanitarian assistance

[CIHL, Rule 55]

Cases and Documents

Readings

Suggested reading:

  • BRAUMAN Rony, L’action humanitaire, Paris, Flammarion, 2000.
  • SLIM Hugo, “Doing the Right Thing: Relief Agencies, Moral Dilemmas and Moral Responsibility in Political Emergencies and Wars”, in Studies on Emergencies and Disaster Relief, No. 6, Nordiska Afrikainstitutet, Uppsala, 1997, 18 pp.

Further reading:

  • PLATTNER Denise, “ICRC Neutrality and Neutrality in Humanitarian Assistance”, in IRRC, No. 818, March-April 1996, pp. 161-179.
  • RUSSBACH Rémi & FINK Daniel, “Humanitarian Action in Current Armed Conflicts: Opportunities and Obstacles”, in Medicine and Global Survival, Vol. 1/4, 1994, pp. 188-199.
  • MINEAR Larry & WEISS Thomas G., Mercy under Fire, War and the Global Humanitarian Community, Oxford/San Francisco, Boulder/Westview Press, 1995, 260 pp.

 3.   The rules of treaty law

Readings

Suggested reading:

  • BARBER Rebecca, “Facilitating Humanitarian Assistance in International Humanitarian and Human Rights Law”, in IRRC, Vol. 91, No. 874, June 2009, pp. 371-399.
  • BOTHE Michael, “Relief Actions: The Position of the Recipient State”, in KALSHOVEN Frits (ed.), Assisting the Victims of Armed Conflict and Other Disasters, Dordrecht, M. Nijhoff, 1989, pp. 91-98.
  • LUOPAJÄRVI Katja, “Is There an Obligation on States to Accept International Humanitarian Assistance to Internally Displaced Persons under International Law?”, in International Journal of Refugee Law, Vol. 15/4, 2004, pp. 678-714.
  • REY Francisco, CARBONNIER Gilles & BOUCHET-SAULNIER Françoise, Puertas cerradas: el acceso a la víctimas en la acción humanitaria, Barcelona, Icaria, 2001, 214 pp.
  • ROTTENSTEINER Christa, “The Denial of Humanitarian Assistance as a Crime under International Law”, in IRRC, No. 835, September 1999, pp. 555-582.

a)    the starting point: Art. 23 of Convention IV
        aa)        addressed to all “High Contracting Parties”, not only the parties to the conflict
        bb)       but limitations

    • with regard to the beneficiaries
    • with regard to the kind of assistance
    • conditions

CASES AND DOCUMENTS

  • ICRC, International humanitarian law and the challenges of contemporary armed conflicts in 2015 [para. 148]

b)   in occupied territories: Art. 59 of Convention IV: the occupying power has an obligation to accept relief

Cases and Documents

c)    a broad right to assistance: Art. 70 of  Protocol I and Art. 18(2) of Protocol II
        aa)        but subject to the consent of the State concerned

Cases and Documents

bb)       the conditions on which a belligerent may make its agreement to humanitarian assistance contingent

Cases and Documents

cc) is the State concerned obliged to give its consent if the conditions are fulfilled?

Cases and Documents

 4.   Protection of those providing humanitarian assistance

[CIHL, Rules 31 and 32]

Cases and Documents

Readings

Suggested reading:

  • BIERENS DE HAAN Barthold, Humanitarian Action and Armed Conflict: Coping with Stress, Geneva, ICRC, July 2001, 3rd ed., 28 pp.
  • MACKINTOSH Kate, “Beyond the Red Cross: the Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law”, in IRRC, Vol. 89, No. 865, March 2007, pp. 113-130.
  • RUFIN Jean-Christophe, “The Paradoxes of Armed Protection”, in Médecins Sans Frontières (ed.), Life, Death and Aid, New York, Routledge, 1993, pp. 111-123
  • SUY Erik, “La protection des volontaires humanitaires dans les conflits armés non-internationaux et dans les operations de secours en cas de catastrophes”, in Des Menschen Recht Zwischen Freiheit und Verantwortung: Festschrift für Karl Josef Partsch zum 75 Geburtstag, Berlin, Duncker & Humblot, 1989, pp. 173-182.

 5.   The protection of water supplies and water engineers

Cases and Documents

Readings

 Footnotes