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CHAPTER BIBLIOGRAPHY

Introduction

I. Distinction between the Law of The Hague and the Law of Geneva

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

SPECIFIC BIBLIOGRAPHY

   b. even attacks directed at military objectives are prohibited if the expected incidental effects on the civilian population are excessive 

(See infra, Conduct of Hostilities, 6.Prohibited Attacks, c.Indiscriminate Attacks, dd)Principle of Proportionnality)

   c. 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

(See infra, 10.Precautionary measures in attack)

 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

SPECIFIC BIBLIOGRAPHY

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

sPECIFIC BIBLIOGRAPHY

Suggested reading TURNER Lisa & NORTON Lynn G., “Civilians at the Tip of the Spear”, in Air Force Law Review, Vol. 51, 2001, pp. 21 ff. VAN ENGELAND Anicée, Civilian or Combatant?: A Challenge for the 21st Century, Oxford, OUP, 2011, 192 pp. Further reading: ALIJA FERNANDEZ Rosa Ana & SAURA ESTAPA Jaume, “Towards a Single and Comprehensive Notion of ‘Civilian Population’ in Crimes against Humanity”, in International Criminal Law Review, Vol. 17, No. 1, 2017, pp. 47-77. GUILLORY Michael E., “Civilianizing the Force: Is the United States Crossing the Rubicon?”, in Air Force Law Review, Vol. 51, 2001, pp. 111 ff. HLAJKOVA Monika, “Reconstructing the Civilian/Combatant Divide: A Fresh Look at Targeting in Non-international Armed Conflict”, in Journal of Conflict and Security Law, Vol. 19, No. 2, 2014, pp. 251-278.

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

SPECIFIC BIBLIOGRAPHY

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

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

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

SPECIFIC BIBLIOGRAPHY

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

SPECIFIC BIBLIOGRAPHY

1. attacks against civilian objects P I, Art. 52(1) [CIHL, Rule 10]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

1. indiscriminate attacks [CIHL, Rule 11]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

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

cc) treating different military objectives as a single military objective P I, Art. 51(5)(a) [CIHL, Rule 13]

CASES AND DOCUMENTS

 dd) principle of proportionality (See also supra, Fundamentals of IHL, D. Sources of Contemporary International Humanitarian Law, III. Fundamental principles of International Humanitarian Law, 2) Principles of International Humanitarian Law, c) proportionality) P I, Art. 51(5)(b) [CIHL, Rule 14]

• also covers reasonably foreseeable incidental effects

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

1. attacks against the civilian population (or civilian objects) by way of reprisals

(See infra State Responsibility 2.Consequences of Violations c.Applicability of The General Rules on State Responsibility ee)Admissibility of Reprisals)

P I, Art. 51(6) and 52(1)

CASES AND DOCUMENTS

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

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.

SPECIFIC BIBLIOGRAPHY

 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

SPECIFIC BIBLIOGRAPHY

 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

SPECIFIC BIBLIOGRAPHY

a. explosive bullets [CIHL, Rule 78]

SPECIFIC BIBLIOGRAPHY

b. dum-dum bullets [CIHL, Rule 77]

SPECIFIC BIBLIOGRAPHY

c. certain conventional weapons

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

aa) mines [CIHL, Rules 80-83]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

bb) incendiary weapons

[CIHL, Rules 84 and 85]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

cc) non-detectable fragments [CIHL, Rule 79]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

dd) blinding weapons

[CIHL, Rule 86]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

ee) explosive remnants of war

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

ff) cluster munitions

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

Suggested reading: 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. 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. 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, 3rd ed., 2016, 236 pp. NYSTUEN Gro & CASEY-MASELN Stuart, The Convention on Cluster Munitions. A Commentary, Oxford, OUP, 2010, 864 pp.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. Further 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. BOOTHBY William, “Cluster Bombs: Is There a Case for New Law?”, in Harvard University Occasional Paper Series/ Program on Humanitarian and Conflict Research, No. 5, 2005, 46 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. 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. PROKOSCH Éric, “Arguments for Restricting Cluster Weapons: Humanitarian Protection Versus ‘Military Necessity’”, in IRRC, No. 299, March-April 1994, pp. 183-193. 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

SPECIFIC BIBLIOGRAPHY

1. poison HR, Art. 23(a) [CIHL, Rule 72]

SPECIFIC BIBLIOGRAPHY

Suggested reading: BUNN Georges, “The Banning of Poison Gas and Germ Warfare: should the United State agree?”, in Wisconsin Law review, Vol. 69, No. 375, 1970, pp. 194-199.

f.  bacteriological and biological weapons

[CIHL, Rule 73]

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

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

SPECIFIC BIBLIOGRAPHY

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

SPECIFIC BIBLIOGRAPHY

Suggested reading: BOOTHBY William (ed.), Dehumanization in Warfare: Legal Implications of New Weapons Technologies, Cham, Springer, 2018, 243 pp. 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. GOW James, DIJXHOORN Ernst, KERR Rachel, VERDIRAME Guglielmo (eds.), Routledge Handbook of War, Law and Technology, New-York, Routledge, 2019, 448 pp. GRUT Chantal, “The Challenge of Autonomous Lethal Robotics to International Humanitarian Law”, in Journal of Conflict and Security, Vol. 18, No. 1, 2013, pp. 5-23. HUGUES Joshua G., “The law of armed conflict issues created by programming automatic target recognition systems using deep learning methods”, in Yearbook of International Humanitarian Law, Vol. 21, 2018, pp. 99-135. ICRC, A Guide to Legal Review of New Weapons, Means and Methods of Warfare. Measures to Implement Art. 36, Geneva, ICRC, 2007, 34 pp. JENSEN Eric Talbot & ALCALA Ronald T.P. (eds.), The Impact of Emerging Technologies on the Law of Armed Conflict, Oxford, OUP, 2019, 389 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.$ LIU Hin-Yan, “From the autonomy framework towards networks and systems approaches for ‘autonomous’ weapons systems”, in Journal of International Humanitarian Studies, Vol. 10, No. 1, 2019, pp. 89-110. LIU Hin-Yan, VAN ROMPAEY Leonard & MAAS Matthijs M., “Symposium : beyond killer robots : networked artificial intelligence systems disrupting the battlefield”, in Journal of International Humanitarian Legal Studies, Vol. 10, No. 1, 2019, pp. 77-202.OHLIN Jens David (Ed.), Research Handbook on Remote Warfare, Northampton, Edward Elgar, 2017, 528 pp. SASSOLI Marco, “Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified”, in International Law Studies, Vol. 90, 2014, pp. 308-340. SAXON Dan (ed.), International Humanitarian Law and the Changing Technology of War, Leiden, Boston, Nijhoff, 2013, 357 pp. SCHMITT Michael N., War, Technology, and International Humanitarian Law, Cambridge, Program on Humanitarian Policy and Conflict Research, 2005, 62 pp. SCHMITT Michael N., “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics”, in Harvard National Security Journal Features, 2013, 37 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. EDDAZI Fouad, Le droit à l’épreuve des drones militaires, Paris, LGDJ, 2019, 376 pp. 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. HEYNS Christof, AKANDE Dapo, HILL-CAWTHORNE Lawrence & CHENGETA Thompson, “The International Law Framework Regulating the Use of Armed Drones”, in International and Comparative Law Quarterly, Vol. 65, No. 4, 2016, pp. 791-827. 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. 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. 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. McCELLAND Justin, “The Review of Weapons in Accordance with Article 36 of Additional Protocol I”, in IRRC, No. 850, June 2003, pp. 397-415. MAAS Matthijs M., “Innovation-Proof Global Governance for Military Artificial Intelligence? How I Learned to Stop Worrying, and Love the Bot”, in Journal of International Humanitarian Legal Studies, Vol. 10, No. 1, 2019, pp. 129-157. NASU Hitoshi, “Nanotechnology and Challenges to International Humanitarian Law: A Preliminary Legal Assessment”, in IRRC, Vol. 94, No. 886, 2012, pp. 653-672 O’CONNELL Mary Ellen, “Unlawful Killing with Combat Drones: a Case Study of Pakistan”, in Notre Dame Law School Legal Studies Research Paper, No. 09-43, 2009, 26 pp. PEJIC Jelena, “Extraterritorial targeting by means of armed drones: Some legal implications”, in IRRC, Vol. 96, No. 893, 2015, pp. 67-106.$ 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. RATNER Mark A. & RATNER Daniel, Nanotechnology and homeland security: new weapons, new wars, Upper Saddle River, Prentice Hall, 2003, 176 pp. RID Thomas & HECKER Marc, War 2.0: Irregular Warfare in the Information Age, Westport, London, Praeger Security International, 2009, 280 pp. SCHMITT Michael N. & GODDART David S., “International Law and the Military Use of Unmanned Maritime Systems”, in IRRC, Vol. 98, No. 902, 2016, pp. 567-592. SUKMAN Daniel, “Lethal Autonomous Systems and the Future of Warfare”, in Canadian Military Journal, Vol. 16, 2015, pp. 44-53.

 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

SPECIFIC BIBLIOGRAPHY

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

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

Suggested reading: FLECK Dieter, “Ruses of War and Prohibition of Perfidy”, in RDMDG, Vol. 13/2, 1974, pp. 269-314. MADDEN Mike, “Of Wolves and Sheep: A Purposive Analysis of Perfidy Prohibitions in International Humanitarian Law”, in Journal of Conflict and Security Law, Vol. 17, No. 3, 2012, pp. 439-463. WATTS Sean, “Law-of-War Perfidy”, in Military Law Review, Vol. 219, 2014, pp. 106-175. Further reading: CLARKE Robert, “The Club-K Anti-Ship Missile System: A Case Study in Perfidy and its Repression”, in Human Rights Brief, Vol. 20, No. 1, 2012, pp. 22-28. 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. 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. JON HELLER Kevin, “Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?”, in International Law Studies, Vol. 91, 2015, pp. 517-539.

wearing of enemy uniforms 

CASES AND DOCUMENTS

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

CASES AND DOCUMENTS

SPECIFIC BIBLIOGRAPHY

Suggested 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. DREW Philip, The Law of Maritime Blockade: Past, Present, and Future, Oxford, OUP, 2017, 168 pp. HUTTER Simone, Starvation as a Weapon, Domestic Policies of Deliberate Starvation as a Means to an End under International Law, Leiden, Boston, Brill, Nijhoff, 2015, 306 pp. MARCUS David, “Famines Crimes in International Law”, in The American Journal of International Law, Vol. 97, No. 2, 2003, pp. 245-281. 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: DREW Phillip J., “Blockade? A legal assessment of the Maritime Interdiction of Yemen’s ports”, in Journal of Conflict and Security Law, Vol. 24, No. 1, 2019, pp. 35-52. LINTON Suzannah, “International Humanitarian Law in Occupied East Timor: Displacement, Relocation and Famine”, in LINTON Suzannah, McCORMACK Tim & SIVAKUMARAN Sandesh (Eds.), Asia-Pacific Perspectives on International Humanitarian Law, Cambridge, CUP, 2019, pp. 400-422. MATHIAS Samira, “The silent killer: The inadequacy of the present ICC framework in criminalizing starvation as NIAC warfare”, Cambridge International Law Journal, 2018.

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

SPECIFIC BIBLIOGRAPHY

Suggested reading: BEARD Jack M., “Law and War in the Virtual Era”, in AJIL, Vol. 103, No. 3, July 2009, pp. 409-445 CRAWFORD Emily, “Virtual Battlegrounds: Direct Participation in Cyber Warfare”, in Sydney Law School Legal Studies Research Paper, No. 12/10, 2012, 20 pp. DINNISS Heather Harrison, Cyber Warfare and the Laws of War, Cambridge, Cambridge University Press, 2012, 331 pp. DROEGE Cordula, “Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians”, in IRRC, Vol. 94, No. 886, 2012, p.533-578. GEISS Robin & LAHMANN Henning, “Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space”, in Israel Law Review, Vol. 45, No. 3, 2012, pp. 381-399. GISEL Laurent, RODENHAUSER Tilman & DORMANN Knut, “Twenty years on: International humanitarian law and the protection of civilians against the effects of cyber operations during armed conflicts”, in IRRC, Vol. 102, No. 913, 2020, pp. 287-334. 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”, in California Law Review, Vol. 100, 2012, pp. 817-885 ICRC, Cyber warfare and international humanitarian law: The ICRC's position, 2013, 4 pp. JENSEN Eric Talbot, “Cyber Attacks, Proportionality and Precautions in Attack”, in International Legal Studies, Vol. 89, 2013, pp. 198-217. JENSEN Eric Talbot, “Cyber Warfare and Precautions Against the Effects of Attacks”, in 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”, in 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, No. 04, 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?”, in International Law Studies, Vol. 89, 2013, pp. 252-275. MELZER Nils, Cyberwarfare and International Law, United Nations Institute for Disarmament Research (UNIDIR) Resources, 2011, 38 pp. OHLIN Jens David, GOVERN Kevin & FINKELSTEIN Claire, Cyber War: Law and Ethics for Virtual Conflicts, Oxford, OUP, 2015, 320 pp. 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. RID Thomas & HECKER Marc, War 2.0: Irregular Warfare in the Information Age, Westport, London, Praeger Security International, 2009, 280 pp. ROSCINI Marco, Cyber Operations and the Use of Force in International Law, Oxford, OUP, 2014, 307 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 N. (ed.), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Cambridge, CUP, 2nd ed., 2017, 598 pp. SCHMITT Michael N., “Classification of Cyber Conflict”, in Journal of Conflict & Security Law, Vol. 17, No. 2, 2012, pp. 245–260. SCHMITT Michael N., “The Law of Cyber Warfare: Quo Vadis?”, in SLPR, No. 25, 2014, pp. 269-299. 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.  WALLACE David col., “Cyber Weapon Reviews under International Humanitarian Law: A Critical Analysis”, in Tallinn Paper, No. 11, 2018, 22 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. GEIß Robin, “Cyber Warfare: Implications for Non-international Armed Conflicts”, in International Law Studies, Vol. 89, 2013, pp. 627-645. RALTCHEV Christo C., Cybergewalt, Dissertation, Fribourg/Sofia, 2013, 235 pp. 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 SCHMITT Michael N., Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge, CUP, 1st ed., 2013, 282 pp. SCHMITT Michael N. & VIHUL Liis, “The International Law of Attribution During Proxy “Wars” in Cyberspace”, in Fletcher Security Review, Vol. I (II), 2014, pp. 55-73. THÜMMEL Juliane, Computernetzwerkoperationen innerhalb internationaler bewaffneter Konflikte, Dissertation, Hamburg, 2011, 273 pp.

 Footnotes