9L - International Humanitarian Law

Basic Principles and rules

Basic Principles

• Principle of military necessity: force may be used only to the extent necessary to achieve a legitimate military objective

• Principle of humanity: prohibits inflicting suffering, injury, or destruction not necessary for military purposes

• > Principle of distinction: parties must always distinguish between civilians and combatants, and between civilian objects and military objectives.

Basic Rules

• Legitimate military objectives: targeting: only objects that by their nature, location, purpose, or use effectively contribute to military action and whose destruction offers a definite military advantage may be attacked

• Prohibition of indiscriminate attacks: attacks that cannot be directed at a specific military objective or whose effects cannot be limited as required by IHL are forbidden.

• Proportionality: attacks are prohibited if expected civilian harm would be excessive in relation to the concrete and direct military advantage anticipated.

Categories

Jus ad bellum (jus contra bellum): the regime governing the permissibility of entering into war in the first place

Jus in bello: which aims to restrain the actual conduct of hostilities

International armed conflict (IAC)

Non-international armed conflict (NIAC)

Different sources may apply

IAC:

• 1949 Geneva Convention (196 parties) + Additional Protocol (174 parties)

• Customary IL

NIAC:

• Common article 3 Geneva Conventions + Additional Protocol II (169 parties)

  • Sets out the lowest bar of protection of HR that you must provide to individuals

  • Also applies to non-international armed conflict

1949 Geneva Conventions

Geneva Conventions (4 in total): set rules for conduct in armed conflicts

Prohibited practices:

• Torture

• Forced displacement of civilians (unless imperatively necessary)

• Illegal executions

• Reprisals against protected persons

Mandated minimum standards for treatment of:

• Prisoners

• Enemy hospital staff

• Other protected persons

International armed conflict

Common article 2 GCs

• applies to all declared wars or other armed conflicts, even if state of war is not recognised

• no formal definition of armed conflict; applicability is fact-based

Tadic case, Jurisdiction 1995, para. 70

• “an armed conflict exists whenever there is a resort to armed force between States”

• Protraction = sufficient intensity, not necessarily long duration.

Occupation

• the Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party

• also article 42 Hague Regulations

Article 1(4) Protocol I

• Armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination

Non-international armed conflict (NIAC)

Common article 3 GCs

• Between the State and non-State actor or between non-State actors

• Humane and non-discriminatory treatment for persons not actively participating in hostilities

• Prohibitions: murder, cruel treatment, torture, hostage-taking, humiliating/degrading treatment, executions without due process.

• Care for the sick and wounded, even former combatants.

• Strong humanitarian intent, but limited scope:

  • No protection for participants in hostilities.

  • Highlights need for further legal rules for NIACs.

Article 1(1) Additional Protocol II

• “armed conflicts (…) between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concentrated military operations and to implement this Protocol”

• Debate exists on whether AP II has become customary IL

• Scope and limitations

  • High threshold:

    • Intensity of violence must be significant

    • Organised armed groups must have clear structure and effective control over territory

    • Many conflicts fall outside AP II’s scope

Article 1(2) Protocol II

• This protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature

Tadic case, Jurisdiction (1995), para. 70

• “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”

Who is a Combatant

Art. 43 (1) (Additional Protocol I) API:

• ‘(…) all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’.

Art. 43(2) API: armed forces;

• combatant’s rights to directly participate in hostilities

All members of the armed forces

Other Militants and Volunteer Groups

Art. 4 GCIII

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

> need to satisfy all four elements

Levée en masse

Article 2 1907 Hague Regulations

• Article 4A(6) GC III &

• Art. 50(1) API

• Inhabitants of a non-occupied territory, who, on the approach of the enemy spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units, provided that they carry their arms openly and respect the laws and customs of war.

Others whose status upon capture is POW

GC III, art. 4

Archetypal combatant: Member of State armed forces, militia, or volunteer corps.

• Armed forces (militias and volunteer groups forming part of those forces)

• Members of other militias and members of other volunteer groups (fullfiling the 4 conditions)

• Regular armed forces professing allegiance to an unrecognized authority

• Persons who accompany the armed forces without being members thereof

• Merchant marine and civilian aircraft crews

• Levée en masse

• Demobilised military personnel

Obligations owed to POWs

• Core principle: protection of life and person; must be treated humanely.

• Prohibited acts: insults, public humiliation, parading prisoners, exposing them to mobs.

Interrogation rules:

• Can only be asked for name, date of birth, rank, serial number.

• No torture or coercion to obtain other information.

Legal status of POWs:

• Not criminals or hostages, but subject to detaining State’s laws/orders.

• May be punished for offences during detention or pre-capture criminal offences

Protections in conflict:

• Must be removed from combat zones.

• Cannot be used as human shields or reprisals.

• Military necessity does not justify ill-treatment.

Repatriation:

• POWs must be released and repatriated after hostilities.

• Exceptions exist if POWs request to remain in another country (e.g., Iraqi POWs in Saudi Arabia, 1991 Gulf War).

Mercenaries

47 AP I - Mercenaries

• “soldiers for hire”

• A mercenary shall not have the right to be a combatant or a prisoner of war.

1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries → EIF: 20/10/2001 → 33 State Parties (none of the major powers) → broader than AP I (it applies to any kind of conflict including NIACs)

Private Military and Security Companies: modern analogue to mercenaries: corporate-organised nationals, performing ancillary armed conflict tasks

Spies

46(1) AP I → No POW status

46(2) AP I → if in uniform not espionage

46(3) AP I → if resident of territory occupied by enemy, considered as engaging in espionage if s/he does so secretly and in a clandestine manner → loses right to POW status

• ONLY if s/he is captured while spying

46(4) AP I → if not resident → loses POW status ONLY if s/he is captured before s/he rejoins their armed forces

Non-international armed conflict

Lawful targets:

• Members of armed forces of a State

• Dissident Armed Forces

• Combatant member of organised armed groups

• Civilians exercising continuous combat function

Direct Participation in Hostilities (DPIH)

Civilians - art. 50, 51 AP I

• Art. 50 - definition of civilians and civilian population

Art. 51(3): directly participating in the hostilities

• Protection, exception if they take a direct part in hostilities

Recommendation V:

• Three cumulative requirements

  • Threshold of Harm

  • Direct Causation

  • Belligerent Nexus

    • Response to prior law of armed conflict violations

    • Object & Purpose of Direct Participation

    • Is subjective Intent relevant? Only in exceptional circumstances e.g. unawareness, involuntariness (physical coercion)

DPIH - Revolving Door Issue

Revolving door problem: Civilians who repeatedly take part in hostilities gain and lose protection each time they fight, creating uncertainty about when they may be targeted.

‘Functional membership Approach’ → ‘Continuous Combatant Function’

• Focuses on what a person does, not formal status.

De facto Membership

• Formal enlistment is not required; sustained participation in fighting roles is enough.

Disengagement doesn’t have to be openly declared but has to be demonstrated through acts

• Leaving the group does not need to be publicly declared, but must be clearly shown by conduct

DPIH: in dubio pro…

Recommendation VIII:

• all feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack.

• case-by-case analysis

Legitimate objective war

Preamble St. Petersburg Declaration “the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy”

Article 22 Hague Regulations “the right of belligerents to adopt means of injuring the enemy is not unlimited

Principle of military necessity

Hostages case (World War II)

“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”

Corn, Max Planck Encyclopedia P.I.L

“When no military advantage is anticipated, it is impossible to speak of the existence of a military necessity to pursue a certain conduct. A good illustration is that of destruction of property (see para.12 above). As emphasized by the Hostage Judgment, ‘[d]estruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces’ ”.

• Just revenges are not allowed

Principle of humanity

Corn, Max Planck Encyclopedia P.I.L.

“The principle protects combatants from unnecessary suffering, and individuals who are no longer, or never were, active participants in hostilities by mandating that they be treated humanely at all times.”

“The principle of humanity provides an essential counter-balance to the equally fundamental principle of military necessity. The operation of these two principles ensures that in all situations of armed conflict there is a pragmatic balance between authority to take hostile measures to subdue an opponent and the obligation to limit the suffering associated with armed conflict to that which is genuinely necessary to accomplish this purpose.”

• Unnecessary suffering is unlawful

• You have to balance it with military necessity

Principle of distinction

Article 44(3) Protocol I: obligation to distinguish

“In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. [...]”

Article 48 Protocol I: principle of distinction

“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.”

> distinguish themselves from civilian population

> prohibitions: acts spreading terror among civilians; removal/destruction of objects indispensable for survival (food, water)

Legitimate military objectives: targeting

Articles 48 and 44(3) and Protocol I: principle of distinction and obligation to distinguish

Military objectives: article 52(2-3) Protocol I

• persons

• objects which by

  • nature

  • location

  • purpose

  • use

• make an effective contribution to military action

• whose total or partial destruction, capture, neutralization offers a definite military advantage

Prohibition of indiscriminate attacks

Article 51(4) Protocol I: use of weapons or methods of warfare that are of a nature to strike without distinction

Proportionality

Article 51(5)(b) Protocol I

• an attack which may be expected to cause incidental loss of civilian life

  and/or damage to civilian objects which would be excessive in relation to

  the concrete and direct military advantage anticipated

History

Manumsriti (Laws of Manu) → 1500 BCE

• When [the king] fights with his enemies he shall not use weapons that are hidden, poisoned or the tips of which have been set on fire

Treaties between States-cities → Ancient Greece

• Chalki and Eretreia → prohibition of ballistic weapons (spears and arrows) → the authenticity of these treaties is debated

Pope Innocent II → Second Lateran Conference → 1139 CE → Rule 29: prohibition of cross-bow (note the use was prohibited only against Christians and Catholics)

Regulation of Warfare

Early attempts SPECIAL REGIMES

• 1864 St. Petersburg

• 1899 -1907 Hague Conventions

• 1925 Gas Protocol

GENERAL REGIME

• API art 35 (2) (1977)

• ENMOD ( 1977)

• CCW (1980)

SPECIAL REGIMES

• Biological Weapons Convention(1972)

• Chemical Weapons Convention(1993)

• CCW protocols(1980-2003)

• Anti-personnel landmines (1997) [Ottawa Convention]

• Cluster munitions (2008) [Dublin Convention]

The St. Petersburg Declaration, renouncing the use of Explosive Projectiles Under 400 Grammes Weight (1868)

• Unnecessary suffering of combatants → (Maux superflus)

• Aimed at drawing a line between explosive artillery shells and rifle ammunition

• Allowed against ‘hard targets’

See also: ICRC CIHL Rules:

• Rule 78. The anti-personnel use of bullets which explode within the human body is prohibited

The Hague Declarations Concerning Expanding Bulletts

Unnecessary suffering of combatants

• “The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”

See also: ICRC CIHL Rules:

• Rule 77. The use of bullets which expand or flatten easily in the human body is prohibited

The Geneva Gas Protocol

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.

“Consumed” by the Conventions on biological and chemical weapons -

> Considered to reflect CIL

Poison and Poisoned Weapons

One of the oldest prohibitions of weapons

• Manumsriti (Laws of Manu) → 1500 BCE

• Lieber Code (1863) Art 70

• Hague Regulations → Art 23(a)

• ICC Statute → Article 8(2)(b)(xvii)

Cardinal Principles of IHL - case

ICJ Advisory Opinion on the Use or Threat of Use of Nuclear Weapons

• States must never make Civilians the Object of Attack and must consequently never use weapons that are incapable of distinguishing between civilians and military targets

  • > prohibitions of Weapons that are Indiscriminate

• It is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering (…) States do not have unlimited freedom of choice of means in the weapons they use

• > prohibition of weapons that cause unnecessary suffering or superfluous injury

Cardinal Principles

International humanitarian law is based on two cardinal principles on weapons: (1) weapons must not be indiscriminate (they must distinguish between civilians and military targets), and (2) weapons must not cause unnecessary suffering or superfluous injury to combatants. These principles are laid down in Additional Protocol I (API)—especially Articles 35 (unnecessary suffering), 51 (protection of civilians), and 57 (precautions in attack)—and are reinforced by broader treaty regimes like the CCW and ENMOD, as well as specific bans on certain weapons (biological, chemical, landmines, cluster munitions). The same principles are also reflected in international criminal law, where the ICC Statute (Article 8) makes the use of inherently indiscriminate weapons or weapons causing unnecessary suffering a war crime.

Cluster Munitions

Issues:

• Wide dispersal pattern

• Many submunitions do not explode

Stockpiled by almost 90 states over 210 different types

Customary International Humanitarian Law

Rule 70: States and all parties to an armed conflict (including non-state armed groups) may not use weapons or methods of warfare that cause superfluous injury or unnecessary suffering.

Rule 71: States and all parties to an armed conflict may not use indiscriminate weapons, meaning weapons that cannot distinguish between civilians and combatants.

>Both rules are part of Customary International Humanitarian Law, as identified by the ICRC (Red Cross), and are binding on all parties to armed conflict, regardless of treaty ratification.

Orkan 87 Specs

CTY, Milan Martic case, 2007

Para 463: ”..the Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon [in the siege of Zagreb],…”

Orkan 87 Specs

• Surface launched rocket (MLRS)

• 12 Rockets at a time

• Each rocket carrying 288 sub-munitions

• Each sub-munition carrying 420 pellets

• Firing range 50 kilometers

• Footprint 150 by 200 meters

• Dud rate: 46-69 %

(depending on how many rockets were fired)