The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
Discover the best professional documents and content resources in AnyFlip Document Base.
Published by Enhelion, 2019-11-24 05:21:50

Module_8 (Pubic International Law)

Module_8 (Pubic International Law)



International Humanitarian Law (sometimes also referred to as the Law of Armed Conflict or
LOAC) is a strand of International Law that prescribes principles encompassing a wide range of
situations that may occur over the course of an armed conflict including, but not limited to, the
treatment of prisoners during war, civilians in occupied territory, sick and wounded personnel,
prohibited methods of warfare and human rights.1 Thus, in a way it could be said to regulate both
the jus in bello (the laws that dictate the way in which warfare is to be conducted) in addition to
merely regulating jus ad bellum (the law concerning the justification for waging war in the first
place).2 International Humanitarian Law in itself is an academic discourse that has created
scholarly opinions and jurisprudence spanning several thousand pages (at the very least)3, and
inviting reasoned opinions of experts in the area. Due to both the breadth and the width of the
subject, a full-fledged analysis of the same is something that this piece cannot do justice do.
However, throughout this module, we will attempt to understand exactly what International
Humanitarian Law is, and the deeper issues involved, such as the types of armed conflict that
may occur, the role of several stakeholders within this process, and how it seeks to grapple with
new & upcoming technology among other things.

The essence of International Humanitarian Law can be found in a number of international
conventions (such as the Geneva Conventions), a major portion of it is a codification of the rules
that have been accepted as customary international humanitarian law4, and it would not be a
stretch to assert that the rules enunciated as part of the customary international humanitarian law

2004); T.Meron, THE HUMANIZATION OF INTERNATIONAL LAW (The Hague,2006); UK Ministry of Defence,
CONFLICT(2nd edn, Manchester, 2000); I. Detter,THE LAW OF WAR (2nd edn, Cambridge, 2000); D. Fleck (Ed.),
2Malcolm Shaw, INTERNATIONAL LAW (6th ed, Oxford University Press)
4D. Draper, ‘The Geneva Conventions of 1949’, 114 HR, p. 59; Draper ‘Implementation and Enforcement of the
Geneva Conventions and of the two Additional Protocols’, 164 HR, 1979, p. 1; F. Kalshoven, THE LAW OF
WARFARE(Leiden, 1973); M. Bothe, K. Partsch and W. Solf, NEW RULES FOR VICTIMS OF ARMED CONFLICT (1982)

framework exist over and above the conventions’ rules5, even though IHL is one of the most
heavily codified areas of international law. Customary international humanitarian laws play a
vital role in this regard, more so in instances where the state(s) involved in the armed conflict are
not party to the applicable conventions, ensuring that even if the conventional rules do not apply,
the customary law can hold its own ground.6


IHL has seen a spate of developments, with there being scope to argue that norms governing
conduct during armed conflict came into being as soon as mankind was introduced to the concept
of warfare itself, with some form of codes of conduct providing guidance to combatants.7
Various conceptualizations can be traced back to numerous periods across all nations, religions,
and races. Ancient Greece and Rome, the Middle East, China as well as Africa have been found
to have had some form of regulated conduct throughout history.8

The contemporary form of IHL owes a large part of its existence and acceptance to the pioneer
Henry Dunant, who had seen the ugly brutality of warfare during the Battle of Solferino.9His
shock and disbelief at the suffering of those taking part in the battle led to the establishment of
the ICRC and impetus for the first Geneva Conference. The result of which was the Geneva
Convention of 1864—the Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field—through the participation of European and American State governments. It
was during this conference, and appearing within the 1864 Geneva Convention, that the white
flag with the red cross that has come to represent humanitarian assistance internationally was
adopted and is now one of the most recognizable emblems.10 Over time, the 1864 Geneva
Convention has been replaced by further Geneva Conventions incorporating a wider framework
of protection. In 1906 and 1929, protections for the sick, wounded, and prisoners of war were
codified. It was not until 1949 that the most comprehensive Geneva Conference took place

5T. Meron, ‘Revival of Customary Humanitarian Law’, 99 AJIL, 2005, p. 817, and J.M. Henckaerts and L. Doswald-
6 Eritrea–Ethiopia Claims Commission, Partial Award, Prisoners of War, Eritrea’s Claim 17, (1 July 2003) at ¶ 38
7A. Roberts and R. Guelff (Eds.), DOCUMENTS ON THE LAWS OF WAR(3rd edn, Oxford University Press, 2000);
Nguyen Quoc Dinh, P. Daillier and A. Pellet, DROIT INTERNATIONAL PUBLIC (7th edn, Paris, 2002) at p. 962; T.
Meron, ‘The Humanisation of Humanitarian Law’, 94 AJIL, 2000, p. 239.
9 C. Moorehead, DUNANT’S DREAM (1998)
10Joyce Gutteridge, The Geneva Conventions of 1949 (1949) 26 BYBIL 294

between April and August, where fifty-nine State delegations and four State observers
participated11, the result of which were the four 1949 Geneva Conventions (Referred to as the
‘four GCs’ commonly) which apply even today. The four Conventions are bolstered and
augmented by the three Additional Protocols (also called APs) that were adopted.

Their scope is limited by the fact that they only apply to those States that have signed and ratified
them. Additional Protocol I, adopted in June 1977, covers the Protection of Victims of
International Armed Conflicts; Additional Protocol II, also adopted in June 1977, is concerned
with the Protection of Victims of Non-International Conflicts; while Additional Protocol III,
adopted in December 2005, addresses the Adoption of an Additional Emblem, the red crystal,
alongside the red cross and red crescent.

Simultaneous to the Geneva conferences and conventions, other initiatives concerned with the
conduct of hostilities and conflict were taking place. In 1856, the Paris Declaration was adopted
which covered maritime warfare with ratification open to all States and which was one of the
first multilateral treaties of its time to cover IHL. In 1899, the First Hague Peace Conference
took place and culminated in the adoption of three conventions covering land and maritime war,
as well as three declarations over the conduct of warfare.12 This was followed by the adoption of
the Hague Convention on Hospital Ships in 1904, succeeded by one of the biggest events that
caused the development of IHL as we know it – the Second Hague Peace Conference of 1907. It
resulted in the adoption of thirteen conventions and one declaration ranging from regulating the
opening of hostilities (Convention III), the laws and customs of war on land (Convention IV), to
the laying of automatic submarine contact mines (Convention VIII), and finally the Declaration
Prohibiting the Discharge of Projectiles and Explosives from Balloons. Further conventions have
been adopted regulating the type of weaponry to be used in conflicts; most notably, the 1980 UN
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and the


Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction.13

Therefore, it can be surmised that International Humanitarian Law has two different, albeit
complementary, strands – first, the law setting out the protections afforded to those taking part in
conflict as well as civilians and other non-participants as established by the Geneva Conventions
and the Additional Protocols; and second, the law governing the conduct and methods of
warfare, predominantly regulated by the Hague Conventions and subsequent international

Customary International Humanitarian Law also plays a major role in providing tribunals with
guidance. Certain conventions mentioned above have acquired the status of customary
international humanitarian law, more specifically, the law setting out the protections afforded to
those taking part in conflict as well as civilians and other non-participants as established by the
Geneva Conventions and the Additional Protocols, and the law governing the conduct and
methods of warfare, predominantly regulated by the Hague Conventions and subsequent
international conventions. It could be said that Customary IHL fulfilled a dual role in developing
IHL – it gives rise to codified conventions which embody the underlying principle enshrined in
customary international law, while at the same time being created by treaty law. This has been
widely accepted – from the Nuremberg International Military Tribunals to affirmation from the
UN Secretary General.14

While customary law can be used in certain instances to extend the application of specific treaty
law, customary law and its associated principles and rules continue to exist alongside the treaty
provisions, applying and containing additional principles other than the ones that had already
been codified.15 Essentially, customary international law complements IHL, but also fills the gap
when there are no treaty provisions on certain aspects of IHL.


13Adam Roberts and Richard Guelff, DOCUMENTS ON THE LAWS OF WAR (3rdedn, Oxford University Press, 2000) at
p. 5
14 Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (UN Doc.
S/25704, 3 May 1993) at p. 35
15Malcolm Shaw, International Law (6thedn, Oxford University Press) p. 755

Without knowing what type of armed conflict is taking place, it is difficult to know what IHL
laws and principles to apply. You can end up with situations where one party to a conflict is
operating under the assumption that an international armed conflict is the appropriate one, while
the other party may determine that neither is the correct approach and therefore consider the
situation to fall outside IHL completely, or in certain aspects, and not comply with any IHL laws
and principles.16

For the purposes of determining the existence of an armed conflict, it doesn’t matter that one of
the belligerents denies the existence of an armed conflict, or the place of hostilities or the forces
involved because the determination of the existence of an armed conflict within the meaning of
Article 2 (1) must be based solely on the prevailing facts demonstrating the defacto existence of
hostilities between the belligerents.17

In order for IHL to apply there needs to be an armed conflict. The question, however, exists as to
what the meaning of an armed conflict is. There is no one acceptable definition of armed conflict
despite the widespread use of the term throughout treaty and customary law.IHL has developed
with different levels of protection and application depending on the type of conflict. One only
needs to look at the names of 1949 Geneva Convention Additional Protocols I and II (AP I and
AP II) to understand that AP I applies to international armed conflicts (IACs) while AP II applies
to non-international armed conflicts (NIAC).

Adding on to this, is the common difficulty for the classification of armed conflict, i.e.
ascertaining whether a certain threshold of intensity is necessary for the application of rules of
IHL. Although no clear position is taken by scholars, the majority consider that no threshold
condition is required for a situation to be classified as an ‘international armed conflict’.18The
existence of an armed conflict will be deduced from the facts. The existence of an armed conflict
therefore depends on objective criteria, as to whether a state commits an armed hostile act
against another state. There is a contrasting position to this, asthe state practice and some
scholars suggest in the case of isolated or sporadic inter-state use of armed force that such
situations would not qualify as international armed conflicts because of their short duration or the

17Boškoski and Tarčulovski Trial Judgment, ICTY, ¶174
18Delalic Trial Judgment, para 174

low intensity of the violence involved.19 However, Jean Pictet, a leading authority on
international humanitarian law jurisprudence, believes that the length of the conflict does not
matter, neither does the amount of ‘slaughter that took place’, and others seem to mirror this

Another question that arises is regarding the timeline of the application of IHL to an armed
conflict – what point can it be said to begin, and at what point does it cease to apply to a factual
matrix? International humanitarian law applies from the initiation of such armed conflicts and
extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in
the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international
humanitarian law continues to apply in the whole territory of the warring States or, in the case of
internal conflicts, the whole territory under the control of a party, whether or not actual combat
takes place there.21

International Armed Conflicts

Common Article 2 of the Geneva Conventions of 1949 states that an armed conflict exists in “All
cases of declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties even if the state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance.”22 By using the
phrase ‘two or more of the High Contracting Parties’ this definition automatically limits this type
of armed conflict to between States. This is a result of the only entities able to be a High
Contracting Party being States. Therefore it is arguably safe to assume that this definition relates
to international armed conflicts and is limited in its application to that alone. It may be
questioned as to why Common Article 2 uses the terminology ‘war’ and ‘any other armed
conflict’, yet through looking at the ICRC’s commentary on the Geneva Conventions it was
merely a tactic to cover situations whereby States had not declared war but hostilities were still

19Timothy L.H. McCormick and Sir Christopher Greenwood (eds), INTERNATIONAL HUMANITARIAN LAW (Brill,
2008) at p. 48
21Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Interlocutory
Appeal), Case No. IT-94-1-AR72 (2 Oct. 1995) at ¶70
22 Common Article 2, Geneva Conventions 1949

taking place which were more than mere police enforcement and could include acts of self-

However, this definition of an international armed conflict was later expanded to encompass self-
determination conflicts within its scope. Consequently, Article 1(4) of AP I, states that “Armed
conflicts in which peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right to self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations.”24It is also pertinent to keep in mind that AP I has not been ratified by all
States and will only apply to those that have. Furthermore, some ratifying States have included
statements of understanding in order to limit the application of Article 1(4).

Non-International Armed Conflict

In general international armed conflicts are subject to more extensive regulation than non-
international armed conflicts. Given the fact that State sovereignty is one of the fundamental
principles recognized by public international law and that States traditionally viewed their
internal matters as beyond the scope of international law regulation, consensus over the
applicable regulation was harder to come by. Nevertheless, consensus was reached. As with
international armed conflicts, the Geneva Conventions are sorely lacking in any definition for a
non-international armed conflict. The first point of call to consider is Common Article 3 of the
Geneva Conventions which takes a negative definitional approach. In essence, Common Article
3 is merely the converse of Common Article 2, stating “armed conflict not of an international
character occurring in the territory of one of the High Contracting Parties”.25

While little is developed in this Article, a few points are clear. The armed conflict needs to occur
within a High Contracting Party’s territory, thus excluding conflicts which extend beyond the
territory of one State and spill into other States. By stipulating that it is ‘not of an international

23Timothy L.H. McCormick and Sir Christopher Greenwood (eds), INTERNATIONAL HUMANITARIAN LAW (Brill,
24 Article 1(4), Additional Protocol I to the 1949 Geneva Conventions
25Common Article 3, 1949 Geneva Conventions

character’ it can be deduced that the armed conflict cannot be between two or more States,
therefore some other actor(s) or group must be involved.

It appears as if AP II acts as the safety net provision, attempting to account for those armed
conflicts not considered international under AP I and the 1949 Geneva Conventions. It requires
the actors involved to possess a level of organization and command structure as well as having a
degree of control over territory within the State. The rationale for this is to distinguish between
an actual internal conflict and lower levels of disturbances which do not require the same level of
protection, which are carved out through the drafting of Article 1(2) of AP II. Similar to the last
instance, AP II does not include any definition as to what such internal disturbances and tensions
are. The problem with AP II’s approach is that through imposing such a high threshold for a non-
international armed conflict by requiring the exercise of control over a part of the territory, many
situations will fall short. Furthermore, the requirement of ‘sustained and concerted military
operations’ seeks to separate minor rebellions, which have no real impact on the government’s
control of their territory, and those situations in which rebels or militia succeed in controlling
areas of a State. There are guidance notes that decipher how to distinguish between tensions,
internal disturbances, and non-international armed conflicts26, with the emphasis being on the
nature of the violence, its intensity, and the organization and coordination of the attacks.

Internationalized Armed Conflicts

The expression “internationalized armed conflicts” is not a legal expression as such and does not
imply a third category of armed conflicts. Per Common Article 2 of the Geneva Conventions,
IACs are defined as conflicts between states. There are thus two basic ways of
‘internationalizing’ a NIAC: (1) for treaties and/or custom to exceptionally expand the definition
of an IAC to include as parties some sufficiently state-like entities, or (2) for the non-state actor
which is a party to a NIAC with a state to be considered as acting on behalf of a third state.27The

26Arne Dahl and Magnus Sanbu, The Threshold of Armed Conflict (2006) 45 Military Laws and Laws of War Rev
369, at p. 378
27Marko Milanovic, What Exactly Internationalizes an Armed Conflict, EJIL Talk, <available at:>

expression rather describes situations of non-international armed conflicts with a dimension that
is said to be “international”. This dimension can take several forms:28

1. One or more third States or an international/regional organization (the States or the
organization acting through a multinational force) intervene in support of a state involved
in an armed conflict against an organized armed group

2. One or more third States or an international/regional organization (the States or the
organization acting through a multinational force) intervene in support of an organized
armed group involved in an armed conflict against a State

3. Other possible combinations between situations 1), and 2)

The factual situations that nurture internationalization are various and sometimes complex: this
includes armed conflict between two internal factions both of which are backed by different
states, direct hostilities between two foreign states that military intervene in an internal armed
conflict in support of opposing sides, and war involving a foreign intervention in support of an
insurgent group fighting against an established government.15 The most transparent
internationalized internal armed conflicts in recent history, include North Atlantic Treaty
Organization‟s16 intervention in the armed conflicts between Federal Republic of Yugoslavia
and the Kosovo Liberation Army in 199917 and the intervention undertaken by some states in
the Great Lake region in support of opposing sides of the internal armed conflict in the
Democratic Republic of Congo and in Somalia.29

The proliferation of nuclear weaponry and its inhibiting impact on direct form of aggression
during the Cold War led to many less transparent internationalized armed conflicts, which
although superficially internal were infact wars by proxy, taking place in the territory of a single
state with the covert intervention of foreign governments.30 The United State support of the
contra rebels against state’s forces in Nicaragua in the 1980s, perhaps is the pure example of this

28Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan,
Kampuchea and Lebanon, in (1983) 33(1) American University Review 145-161
29Hagler Okorie, Internationalization of Armed Conflict in Africa: Appraisal of Sub-Saharan African Countries of
Democratic Republic of Congo, Somalia and Nigeria, (2018) 6(1) JOURNAL OF LAW AND CRIMINAL JUSTICE 65, at
67 <available at:>
30G. Abi–Saab, Non–International Armed Conflicts, in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW,
(Henry Dunant Institute&UNESCO, Geneva, 1988) 22

trend.31 Motivations for intervention in civil wars may have changed since the end of the Cold
War, but the increased economic interdependence of states born of globalization, the
development of nuclear capabilities among previously incapable states, the greater incidence of
terrorism in Western countries and the increasing scarcity of natural resources all provide
incentives for foreign intervention in domestic internal conflicts. As a reflection of that reality,
internal conflicts are presently more in number, brutal and damaging than their international
counterparts,32 despite the fact that the state remains the main war – waging machine.33 The
difficulty from humanitarian point of view is that although internationalized armed conflict has
special features distinguishing them from both international and internal armed conflicts,34 there
is absolutely no basis for a halfway house between the law applicable in internal armed conflicts
and that relevant to international warfare.35 Therefore, the application of IHL to internationalized
armed conflicts involves characterizing events as either wholly international or non–international
according to the various tests espoused in the Geneva Conventions, their Additional Protocols
and Customary IHL. According to scholar Marko Milanovic, the concept of internationalization
is only legally useful if it denotes the transformation of a prima facie non–international armed
conflict into an international one, thereby rendering applicable to the said conflict the more
comprehensive international armed conflict legal regime.36 There is crucially one striking
distinction between the two legal regimes. In international armed conflicts, the parties to the
conflict are two equal sovereign states. Lawful participants in the hostilities who in effect
represent those sovereign states have combatant status, and enjoy the privilege of belligerency.
They cannot be prosecuted by the other state for their mere participation in the hostilities, but
solely for the violations of international humanitarian law.

The Tadic Appeal Judgment’s test for determining whether an internal armed conflict has
become international is whether “some of the participants in the internal armed conflict act on

31Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, ICJ
Reports 1986, 14
32Ibid, at p. 38
33Ibid, at p. 38
34I. Detter, THE LAW OF WAR (Cambridge University Press, 2002) at p. 49
35C. Byron, Armed Conflicts: International or Non-International, (2001) 6(1) JOURNAL OF CONFLICT AND SECURITY
LAW, 87
36Marko Milanovic, What Exactly Internationalizes an Armed Conflict, EJIL Talk, <available at:>

behalf of another state.”37 The International Court of Justice (ICJ) was asked to answer a similar

question in the Military and Paramilitary Activities in and against Nicaragua case, in order to

determine the responsibility of the United States for armed conflict between the Contras it had
sponsored and the Nicaraguan government.38 In defining the circumstances in which an
insurgent’s acts can be attributed to a state, the court applied what it described as an “effective
control” test39. It is imperative here to state that the Tadic Appeal Judgment overruled the Trial
Chamber’s support for the strict “effective control” test espoused in the Nicaragua’s case,
declaring the ICJ’s reasoning “unconvincing based on the very logic of the entire system of
international law on state responsibility.” As a result of this, a less stringent three pronged test
has come to apply.40

The test espoused three different standards of control under which an entity could be considered

a de facto organ of a state, each differing according to the nature of the entity. Firstly, where the

question involves the acts of a single private individual or a not military organized group that is

alleged to have acted as a de facto state organ, it is necessary to ascertain whether specific

instructions concerning the commission of that particular act has been issued by that State to the

individual or group in question, or alternatively, it must be established whether the unlawful act
has been publicly endorsed or approved ex–post facto by the State at issue.41In the Second

instance, involving control by a state over subordinate armed forces, militias or paramilitary
units, “control must be of an overall character”. The Appeals Chamber declared that: “… control

by a state over subordinate armed forces or militias as paramilitary units may be of an overall

character (and must comprise more than the mere provision of financial assistance or military
equipment or training)”.42The Appeal Chamber made clear that the overall control test under the
second category requires that a state “has a role in organizing, coordinating or planning the

military actions of the military group, in addition to financing, training and equipping or
providing operational support to that group” but that it “does not go so far as to include the

issuing of specific orders by the state, or its direction of each individual

37Prosecutor v Tadic, T-94-1-A Appeals Judgment (15 Jul 1999) at ¶84
38Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) Merits, Judgment, ICJ
Reports 1986, ¶ 116
39 Ibid
40Prosecutor v Tadic, T-94-1-A Appeals Judgment (15 Jul 1999) at ¶116
41Prosecutor v. Delalic, et al, IT – 96-21- A, Appeals Judgment (20 February 2001), ¶¶ 5 -50
42Prosecutor v Tadic, T-94-1-A Appeals Judgment (15 Jul 1999) at ¶137

operation”.43Consequently, the reasoning would seem to suggest that foreign military
intervention that only indirectly affects an independent internal conflict is sufficient to render
that conflict international. That supposition was subsequently confirmed by the Kordic&Cerkez
Judgment, which found that the Croatian government’s intervention in the conflict against Serb
forces in Bosnia internationalized a separate conflict in which the Croatian government had no
direct military involvement, namely, the conflict between Bosnian Croats and Bosnian
Muslims.44The third and final test involves “assimilation of individuals to state organs on
account of their actual behaviour within the structure of a state.”45 Despite the now extensive
literature addressing the issue, application of the three–pronged test remains complex,
convoluted and the subject of considerable confusion, even among Appeal Chamber Judges


Traditionally, IHL never included a definition of combatant as it was only ever soldiers who
participated in war and usually the battles were not located close to civilian areas. Slowly but
surely the concept of a combatant began to appear, as did the use of standard uniforms for armies
throughout the seventeenth and eighteenth centuries. Nevertheless, there was no real controversy
as to who constituted a combatant. Yet, from the Franco-Prussian War of 1870–71 questions
were being raised as to the status of francs-tireurs (free-shooters) and the levée en masse (mass
uprising). The free-shooters were groups or militia who armed themselves independently from
the government or military and fought against an invading army. Whereas the mass uprising
categorization encompasses civilians who during an invasion spontaneously take up arms against
the invading army and become recognized as combatants when they carried arms openly. While
it may seem obvious that anyone who is involved in fighting in the conflict should be classified a
combatant, it is not always that straightforward. The fundamental criterion for being a combatant

44Prosecutor v. Kordic&Cerkez, IT–95–14/2–T, Trials Judgment (26 Feb 2001)
45Prosecutor v Tadic, T-94-1-A Appeals Judgment (15 Jul 1999) at ¶141
46Prosecutor v. Blaskic, IT–95–14, Judgment (3 March 2000)

and therefore enjoying the rights of combatants (e.g. prisoners of war or POW status if captured)
is based on taking a direct part in hostilities.47

In order lawfully to take a direct part in hostilities, one must satisfy the four criteria of Article 4
(A)(2), Geneva Convention III, which states that the person must meet the following
requirements: (i) be commanded by a person responsible for his subordinates; (ii) have a fixed
distinctive emblem recognizable at a distance; (iii) carry arms openly; and (iv) conduct their
operations in accordance with the laws and customs of war.48It is irrelevant whether a person is a
member of the armed forces, a militia, or a volunteer corps, including such organized resistance
movements. What is important is that he or she fulfils these four criteria upon which he or she
becomes a lawful combatant. The consequence is that: only combatants can be made the object
of attack; only lawful combatants possess the right to be POWs, whereas if a random civilian in
occupied territory kills a member of the occupying forces he or she is subject to the criminal
laws of the occupying power. It is important to note that not all military personnel are considered
combatants, military medical and religious personnel are considered non-combatants (see Article
33 of the 1949 Geneva Convention III). Subsequent treaty provisions have developed the
definition and concept of combatant and non-combatant in relation to POW protection. What
they have done is to include certain non-combatants in the same level of protection for
combatants recognized as prisoners of war.

Combatants do not need to be part of a recognized State’s military or government forces. This
determination of combatant or belligerent status irrespective of being recognized by the adverse
party is a marked improvement for protection of combatants and for civilian alike, as it enables
non-State actors, and non-recognized military groups of States to come under the definition.
Consideration has also been given to the evolving nature of warfare and the different types of
conflict which are subject to IHL.49

As a contrast to this, the definition of a civilian is anyone who does not come under the
definition of a combatant as discussed in this section of the module. Civilians have now been

48 Article 4(a)(2), Geneva Convention III of 1949
49A Bellal, International Law and Armed Non-State Actors in Afghanistan, ICRC <available at:>

afforded a separate convention specifically addressing their protection issues—1949 Geneva
Convention IV Relative to the Protection of Civilian Persons in Time of War, where Article 4
defined civilians as: “Persons protected by the Convention are those who at a given moment and
in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of
persons a Party to the conflict or Occupying Power of which they are not nationals. Nationals of
a State which is not bound by the Convention are not protected by it. Nationals of a neutral State
who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State,
shall not be regarded as protected persons while the State of which they are nationals has
normal diplomatic representation in the State in whose hands they are.

The provisions of Part II are, however, wider in application, as defined in Article 13.

Persons protected by the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea of August 12, 1949 or by the Geneva Convention relative to the
Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons
within the meaning of the present Convention.”

Despite the clear distinctions provided for in IHL between a combatant and a non-combatant,
this has been greatly called into question given the realities of warfare in modern times. In
practice, the distinction between combatants and non-combatants cannot be upheld in the face of
human distress. War, as it becomes more and more total, practically annuls the difference as to
injury and exposure to danger which formerly existed between armed forces and non-

Of late, a third category has been put forward, that of unlawful combatants. However, in this
regard, sufficient attention ought to be given to the perspective put forth by the Trial Chamber at
ICTY, where they opined that there is no gap between the Third and the Fourth Geneva
Conventions. If an individual is not entitled to the protections of the Third Convention as a
prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the
ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary

50Max Huber, Address to the Preliminary Red Cross Conference, Geneva 1946; See also Jean Pictet, The New
Geneva Conventions for the Protection of War Victims, (1951) 45 AJIL 462, at 474

to the Fourth Geneva Convention asserts that; “[e] very person in enemy hands must have some
status under international law: he is either a prisoner of war and, as such, covered by the Third
Convention, a civilian covered by the Fourth Convention, or again, a member of the medical
personnel of the armed forces who is covered by the First Convention. There is no intermediate
status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory
solution—not only satisfying to the mind, but also, and above all, satisfactory from the
humanitarian point of view”.51

The term unlawful combatant does not appear in any of the four 1949 Geneva Conventions,
while AP I is considered by some to have a similar conceptualization with the recognition of
‘irregular force’. Even if this specific interpretation of the term ‘irregular force’ can be equated
to unlawful combatant, the fact of its inclusion in AP I no longer means unlawful combatants are
outside the scope of IHL as they are recognized belligerents and it would seem that the ICTY’s
opinion holds true. For those States that are not a party to AP I, there may be stronger legal
arguments for unlawful combatant classification but that is still subject to much conjecture.52 In
this regard, it is necessary to peruse the contents of Article 5 of the Geneva Convention III and
Article 45(1) of the Additional Protocol I. Both under Geneva Convention III and AP I, an
individual who has taken part in hostilities or undertaken belligerent acts will be entitled to POW
status until a competent tribunal determines their status. Consequently, there is unlikely to be a
situation whereby IHL protection does not apply. IHL is clear as to the classification of
individuals as well as what protections each are afforded.

While distinguishing the status of a combatant or civilian, terrorism presents another unique
challenge to this classification conundrum. As stated by Zachary, the main difficulty in dealing
with terrorism through legal means is the fact that international law is inherently State-oriented.
International law has difficulties relating coherently to international organizations or
individuals.53This is not to say that international law does not have room for interpreting its
provisions toapply to terrorism. In fact, the Inter-American Commission on Human Rights has
determinedthat in terms of taking part in hostilities there can be situations in which terrorist acts

51Prosecutor v. Delalic, et al, IT – 96-21- T, Trials Chamber Judgment (16 Nov 1998), ¶271
52Knut Dormann, The Legal Situation of Unlawful/Unprivileged Combatants(ICRC) <available at:>
53Shlomy Zachary, Between the Geneva Conventions: Where do Unlawful Combatants Belong? (2005) 38 Israel L
Rev 378, at 388

andcounter-terrorist acts can be of the intensity needed to be considered an armed conflict.54IHL
can be interpreted broadly enough to cover the developing situations we presently find the
international community is dealing with in terms of conflict and who takes part in hostilities. In
addition, the only time in which specific individuals are expressly excluded from such POW
protection, and conversely could be argued are outside the scope of IHL, is in the case of
mercenaries.55 This considered with the fact that the drafters adopted a negative manner of
defining civilians, there is barely any scope for a third category – and neither was that the
intention of the framers of the Conventions.



Customary international law plays an important role in restricting the conduct of warfare and one
of the most fundamental principles upon which this is possible is proportionality and distinction.
This concept of proportionality is different from the one that is applied during cases involving
the use of force under general public international law, since in this instance what is being
referred to is the notion of proportionality in relation to the damage caused (be it to civilians or
physical structures) when taking into account the military advantage gained. A phrase you are
most likely to have come across before encompasses this principle; collateral damage. What this
means in essence is that there is an acceptable level of casualties during times of armed conflict
as long as it is not excessive. Furthering this principle is the requirement of distinction. For this,
military objects and targets, including combatants, need to be distinguished from civilians and
civilian objects.56Furthermore, there are considered to be three principles which are incorporated
into the concept of proportionality and distinction; the principles of military necessity, humanity,
and chivalry. Article 51(2) of AP I prohibits any violence against civilian objects, which it
defines as “the civilian population as such, as well as individual civilians, shall not be the object
of attack. Acts or threats of violence the primary purpose of which is to spread terror among the

54(Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (OEA/Ser.L/-V/II. 116
Doc.5 rev. 1 corr., 22 October 2002), p. 73
55 Article 47(1), Additional Protocol I
56Judith Gardam, Proportionality and Force in International Law, (1993) 87 AJIL 391, at p. 402-403

civilian population are prohibited.”57 Art. 51(4) further prohibits indiscriminate attacks, which
negate the principle of distinction.


One of the biggest challenges in this area is determining whether something is proportional or
not. There are no set criteria for determining how many casualties are acceptable or what degree
of military advantage would justify the armed action. The real problem comes down to who is
interpreting the proportionality. Military personnel are likely to put greater emphasis on the
military aims and therefore may be more likely to accept a higher proportion of civilian loss.
Whereas non-military individuals are more likely to emphasize the protection of civilians,
striving for little to no casualties, with less emphasis and understanding of military objectives.58

This was the issue the ICTY had to consider when assessing whether the North Atlantic Treaty
Organization (NATO) bombing of the Serbian Radio and Television (RTS) building constituted
a military target. NATO bombed the building late at night to ensure the least number of civilians
would be in the building. The reason for targeting the civilian building was that it was alleged the
Serbian forces used this building as their backup communication network. Unfortunately, sixteen
civilians died as a result of the bombing and the Serb armed forces were able to utilize another
backup from a secret location. As shown in the ICTY, Final Report to the Prosecutor by the
Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of
Yugoslavia ((2000) 39 ILM 1257, 78–79), NATO knew that bombing the RTS building was
strategically important to the Yugoslav command and control network. In this instance, the dual
use of a civilian building was considered and assessments were made as to the anticipated
military advantage which would be achieved by its bombing in relation to the loss of civilian life.

Use of Weapons

In terms of conduct of hostilities, due regard must also be paid to the weapons that are being
employed by the actors. The focus is on minimal, or no usage, of weapons which uselessly
aggravate the sufferings of people, such acts being considered as being contrary to the laws of
humanity, a principle that has been codified in the St Petersburg Declaration Renouncing the

57 Article 51(2) of Additional Protocol I
58Judith Gardam, Proportionality and Force in International Law, (1993) 87 AJIL 391, at 409

Use, In Time of War, of Explosive Projectiles 1868 receiving further affirmation in Articles 22
and 23 of the Hague Regulations 1907. AP I develops the notion of ‘superfluous injury’ further
and extends the prohibition to cover unnecessary suffering as well.59

Through regulating the kind of weapons employed during armed conflict, it is hoped to limit the
related damage and suffering as much as possible while still accepting that suffering and
destruction are not ever going to be completely eradicated from armed conflict due to its very
nature and the use of force. It must also be taken into account that while there is general
regulation in the form of the above, it remains subjective as to what is considered unnecessary
suffering and superfluous injury. It is this subjective element which leads to various
interpretations and different applications of IHL and its associated principles. Perhaps as a direct
response to this there have been numerous treaties concluded over specific forms of weaponry.
Some examples include the 1980 UN Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, the 1996 Amended Protocol II on Prohibition or Restriction on the Use of
Mines, Booby-Traps and Other Devices, the 1997 Ottawa Convention on the Prohibition of the
Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, and
the 2008 Dublin Convention on Cluster Munitions. Protection has also been extended to include
the environment by preventing its utilization as a method of warfare through the 1976 UN
Convention on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques. This includes the practice of modifying the environment as part of a
military strategy which has negative long-term effects.


IHL does not foresee any particular status for corporate actors, such as PMSC.60 Except for the
unlikely case where a PMSC, as such, becomes an independent non-State party to an armed
conflict, its rights and obligations as a corporate actor, therefore, will not be defined by IHL, but
by national law including, where applicable, Corporate Criminal Law. The question of status,
rights and obligations under IHL is much more relevant with regard to the individual employees

59 Article 35(2), Additional Protocol I
60 International Institute of Humanitarian Law, Private Military and Security Companies Study 35th Round-Table,
<available at:>

and contractors of PMSC. All PMSC-personnel carrying out activities for reasons related to an
armed conflict are bound by IHL and criminally responsible for serious violations (war crimes),
irrespective of their status. Individual status becomes relevant primarily for determining the
entitlement of PMSC-personnel to a particular regime of protection or treatment under IHL.

Which regime will be applicable then depends on whether the individual contractor or employee
qualifies as a “civilian”, “civilian accompanying the armed forces”, or “civilian directly
participating in hostilities”, or whether he qualifies as a “member of the armed forces”, a
privileged “combatant” entitled to “prisoner of war” status, a “civilian internee” protected by the
Fourth Geneva Convention or, rather, a “mercenary”.61 Under IHL, all of these categories of
persons have a particular status, to which certain rights and obligations are tied. While these
categories cannot be discussed in detail here, it is worth highlighting a few important points.
First, it is uncontested today that the majority of PMSC personnel operating in armed conflicts
are not members of the armed forces and do not directly participate in hostilities and, therefore,
enjoy civilian status and protection against attack.62 Nevertheless, their proximity to the armed
forces and the hostilities may expose them to increased risk of incidental death or injury. In
international armed conflict, PMSC personnel formally authorized to accompany the armed
forces remain civilians but are entitledto prisoner of war-status upon capture.63 Just as any other
civilians, however, they are not entitled to combatant privilege and, thus, do not have the right to
directly participate in hostilities. Where PMSC-personnel have been incorporated into the armed
forces of a belligerent party, they can no longer be regarded as civilians and private actors but
become members of that party’s armed forces. In this context it is important to note that such
incorporation can take place either through a formal procedure (de jure), which results in
membership in the regular armed forces in accordance with national law, or simply by being
authorized to directly participate in hostilities on behalf of the contracting State (de facto), in
which case one becomes a member of an irregular militia or group belonging to a belligerent
party.64 In international armed conflict, such PMSC-personnel would be entitled to combatant

61 Alan Bryden, Private Military Security Companies Regulation: The Way Forward
62Katherine Gallagher, Detention Activities by PMSCs
63 Ibid
64 L C Green, THE CONTEMPORARY LAW OF ARMED CONFLICT (Manchester Press, 1993) at 100

privilege and prisoner of war status according to the same criteria as any other member of the
armed forces.65

Finally, the question of PMSC-personnel assuming combat function for belligerent parties also
raises the delicate question of “mercenarism”.66 While the threshold of the mercenary definition
in Art. 47 Additional Protocol I is very high, it cannot be excluded that some PMSC-personnel
may fit the definition. Indeed, where PMSC-personnel are specifically contracted to directly
participate in hostilities in return for compensation significantly exceeding the pay level of
regular armed forces, they will probably have to be regarded as mercenaries under IHL unless
they are nationals of the contracting or the territorial State or incorporated into the armed forces
of the contracting State. As mercenaries, they could lawfully be attacked but would not be
entitled to combatant privilege and prisoner of war status. In these contexts, the main practical
relevance of the status question concerns the conduct of hostilities, the distinction between
legitimate military targets and persons protected against attack. Once a person has fallen into the
hands of the enemy, IHL governing non-international armed conflicts does not foresee distinct
categories or status but entitles everyone who does not or no longer directly participate in
hostilities to the basic protection of humane treatment and judicial guarantees.


Today, armed conflict no longer consists of two regular armies opposing each other on a broad
plain. Armed conflict takes place in areas which are densely populated or difficult to gain access
to. Armed conflict arises either between non-state actors, or between a non-state group and a
conventional army. This new reality influences the application of international humanitarian law
in different ways.67 Ever since the advent of the modern era, IHL has grappled with a series of
challenges, with continued efforts to apply the legal framework to challenges posed by
innovation and emerging technology. Cyber Warfare, Robotization of the battlefield, and
targeted killings by drones all go on to show that new means and methods of combat hold a

65R Morgan, Professional Military Firms under International Law, (2008) 9(1) CHICAGO JOURNAL OF

INTERNATIONAL LAW, 213-247 <available at:



67E. Crawford, From Inter-State and Symmetric to Intra-State and Asymmetric: Changing Methods of Warfare and

the Law of Armed Conflict in the 100 Years Since World War One, in T. D. Gill (Ed.), YEARBOOK OF


certain amount of strategic importance for the stakeholders involved. In order to stay relevant,
IHL must devise ways to govern such developments, ensuring effective regulation.

Innovation in terms of armaments, is nothing new, in fact the history of warfare has been molded
by constant progress of the research and development of newer, more complex weapons.68
Developments of armament have always posed interesting questions to the then-existing legal
frameworks, exposing the need to create new set of norms or regulations to govern them
effectively. The Geneva Protocol on Asphyxiating or Poisonous Gases, and of Bacteriological
Methods, and more recently, the Convention on the Prohibition of Biological Weapons have both
been borne as a result of such armament innovation.While innovation in weapon technology is as
old as warfare itself, the rise of new weapon technologies like cyberwarfare, military
robotization, and in particular autonomous weapons have raised fundamental questions about the
impact of IHL on the battlefields in the future.

The proliferation of military robots, in particular the targeted killing operations carried out by
drones and the use of cyber-weapons, allow the multiplication of more or less hostile operations
of the states without the deployment of military forces on the ground. The question is whether
such acts carried out by technologically advanced systems can be interpreted to constitute an
armed conflict for application of IHL.Even though there is no definition of armed conflict in
international law treaties, it is understood to be ‘the use of armed force between two

The use of robots and cyber weapons makes it more complicated to prove the involvement of a
state in an operation. Yet, there can be armed conflict only if one state attacks another. The use
of these means of combat complicates the attribution of the operations because the perpetrators
can the origin of the attack. For example, backtracking a cyber action becomes far more difficult
when it involves an international border. Attackers will almost always route their attacks through
servers in several countries, launch cyber-attack in an indirect fashion (use the enemy’s resources
against them, by seizing control over computers in the target nation and launching the attack
from within the victim’s borders or use non-state actor) (Lin, 2012).70 This complexity of the

68 M. L. Van Creveld, Technology and War: From 2000 BC to the Present (The Free Press, 1991)
69Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A (2 Oct. 1995), ¶70
70H. Lin, Cyber conflict and international humanitarian law, (2015) 94 INTERNATIONAL REVIEW OF THE RED CROSS

technical assignment impacts the attribution in the legal sense (who is responsible for the
wrongful act).71 Without proof of origin of the attack, the victim state will be unlikely to prove
that it is a case of international armed conflict.72

Questions of distinction do not really arise for current robots because a person is always in the
loop but they will do so for autonomous weapons systems.73

These robotic weapons systems, once activated, can select and attack targets without further
intervention of a human operator.74How can these autonomous systems distinguish between
combatants and non-combatants? The distinction of combatants in an IAC should not pose any
real difficulties on the condition that the robots and lethal autonomous weapons systems
(hereinafter “LAWSs”) are able to recognize the uniforms and to distinguish the soldiers
protected by immunity from attacks (chaplains, sanitary auxiliaries and non-combatants –
wounded). The distinction between individuals directly involved in hostilities will certainly be
more complex. Indeed, LAWSs must be able to distinguish between civilians on the one hand
and members of non-state armed groups on the other, provided that they perform a continuous
combat function, i.e., prepare, execute or actions or operations that constitute direct participation
in hostilities, as well as civilians directly involved in hostilities (private military company’s
employees, etc.) understood as civilians committing a hostile act causing injury (causality must
be direct) to one of the Parties to the conflict with the intention (belligerent nexus) to favor one
of the parties to the detriment of the other. These civilians then lose their immunity from direct
attacks for the time of this participation. This inevitably raises the question of how LAWSs will
determine their target. Two methods seem possible. In the first, it is a military leader who
designates its target by coordinates, by the introduction into the system of a face, etc. In the
second, the LAWS will determine or treat the target without human intervention. Only this last
hypothesis will be discussed. This method asks the question of what criteria will be used to
decide an attack. The first criterion could be databases. LAWS will decide an attack once it
recognizes a target identified as a combatant in one of its databases. The legality of such a

71International Law Commission’s Draft Articles on State Responsibility


73N. Bhuta, S. Beck, Geiß, R., H.Y. Liu, &C. Kreβ, AUTONOMOUS WEAPONS SYSTEMS.(Cambridge University
Press, 2016)
74W. Boothby, How Far Will the Law Allow Unmanned Combat Systems Comply with International Humanitarian
WAR(MartinusNijhoff Publishers, 2014) at pp. 45-64

process will require at least daily or even real-time updates to these bases to take account of
possible changes in the status of individuals, such as the departure of an armed group. So it will
not be the LAWS that will really determine the target, but the military leader, from information
that it will pass on to the LAWS via the updates. The LAWS would therefore be autonomous
during the execution of the attack but not in the choice of the target. Action based on a database
that recognizes distinctive signs and faces, however, appears to be a solution applicable only to
combatants and members of armed groups with a continuous combat function.Such a method
seems difficult to apply to civilians directly involved in hostilities, since their targeting requires
verification of the meeting of certain conditions (belligerent nexus etc.) at the time of the attack.
Thus, in these cases, LAWS could only treat the target if it was at the time of the attack in a
phase of participation in hostilities. Otherwise, the individual is protected as a civilian.

Similar difficulties arise in cyber warfare because the direct participation of civilians in cyber
operations will be greater than in traditional military operations. If the civilian belongs to a state
or to a military non-state actor, he will lose his protection against attack only when he will
participate directly to the hostilities and has a continuous combat function. The problem is to
determinate what is a continuous combat function in the context of cyber military operation. A
person executing a cyberattack against UAV control systems, for example, will certainly be
regarded as have a continuing combat function because his acts will affect the capacities of the
enemy. But this is less certain for a person who simply creates a virus without participating in the
operation. In the same vein, it is complicated to determine the status of a civilian who
participates directly in the hostilities, for example launching a cyber-attack against one of the
parties to the conflict. There is a debate amongst scholars as to the necessary degree of damage
for such a determination to be made75. For the ICRC, it is necessary for the act to cause physical
or material damage76. However, for the Tallinn Manual on the International Law Applicable to
Cyber Warfare, there is direct participation in hostilities as soon as the act adversely affects the
opposing military operations. This difference illustrates perfectly that interpretation is subject to
the interests of the interpreter of the rule.

75C. Allan, Direct participation in hostilities from cyberspace, (2013) 54(1) VIRGINIA JOURNAL OF INTERNATIONAL
LAW, 173-193

The principle of distinction also applies to the objects.77 Under IHL, two types of objectives that
can be targeted must be distinguished. Firstly, there are military objectives by nature. These are
objectives which, because of their characteristics, are permanent military targets such as military
bases, etc. Secondly, there are military objectives by use: these are civilian objects becoming
military objectives. For this, two conditions must be fulfilled: the object constituting the
objective must contribute to the military action of the adversary because of their location,
purpose or use and its destruction must offer a military advantage to the attacker.

For any attack the military character of the object must be identified. This determination is
problematic in the context of cyber war because the entire infrastructure (servers etc.) consists of
dual-use object78. Such infrastructure is used for both military and civilian purposes. So it is
important for military leaders to determine the object of the attack precisely. This obligation
must be taken into account when designing cyber-weapons in order to limit their effects to the
targets without spreading beyond them without discrimination. For example, during the attack of
the Iranian nuclear power plant by the Stuxnet virus, the objective was not the Siemens software
but the centrifuges.79

The new means and methods of warfare pose a challenge to the analysis of the proportionality
concept.80 The concept of proportionality concerns two ideas. The first is the requirement to
balance the harm caused to civilians and the purpose of the attack (the principle of
proportionality)81. The second dimension of proportionality is that, when there are several means
to achieve a goal, the choice should be made in favour of the least harmful for civilians (the
principle of precaution in attack). The principle of precaution in attack as set out in article 57 of
AP I requires measures to be taken in advance to avoid or at least minimize injury to civilians or
damage to civilian objects. Compliance with this principle is not always respected, for example,
in extrajudicial killing carried out by drones. Indeed, the timing and location of the attack are not

77Article 52(2) of the Additional Protocol I
78R. Geiß&H. Lahmann, Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space, (2012)
45 (3) ISRAEL LAW REVIEW, 381-399
79S M Bellovin, Limiting the undesired impact of cyber weapons: technical requirements and policy implications,
80E Boylan, Applying the Law of Proportionality to Cyber Conflict: Suggestions for Practitioners, (2017) 50
81Article 51 (5) of Additional Protocol I

always calculated to do the least harm to civilians.The legality of LAWSs will also depend on
the possibility of integrating into their programming the respect of the precautionary principle.
This implies that the LAWS programming includes the obligation to choose between several
objectives to minimize the risks and the obligation to cancel an attack in case of doubt. This
raises the question of the non-neutrality of programming. This will be based on interpretations of
the IHL of the possessor state, which can be questionable. Thus, the programming of Article 50
(1) of API by a French LAWS may be different from that of a LAWS of another state because
France has issued an interpretative declaration on this rule.

The legality of LAWSs will also depend on the possibility of integrating into their programming
the respect of the precautionary principle. This implies that the LAWS programming includes the
obligation to choose between several objectives to minimize the risks and the obligation to
cancel an attack in case of doubt. This raises the question of the non-neutrality of programming.
This will be based on interpretations of the IHL of the possessor state, which can be
questionable. Thus, the programming of Article 50 (1) of API by a French LAWS may be
different from that of a LAWS of another state because France has issued an interpretative
declaration on this rule.

The second dimension of proportionality requires the attacker to refrain from launching any
attack which may be expected to cause incidental loss of life among civilians, injury to civilians,
damage to civilian property, or a combination thereof, or damage which would be excessive in
relation to the concrete and direct military advantage anticipated. The application of this
principle to cyber-attacks is quite complicated. It raises the question of what damage is to be
taken into account for the analysis of proportionality. Cyberattacks produce different types of
effects82: immediate effects: destruction, corruption, data corruption, system damage, as
happened in the Estonian and Georgian conflicts); destruction/neutralization of the machine or
infrastructure like Stuxnet. Injury to civilians can result due to either, also like in Estonia or
Georgia. If there is a poor assessment of the potential effects of the attack, a cyber-attack could
be described as being indiscriminate (an attack in which attacker does not take into account
potential civilian casualties) and would constitute a war crime. This situation could arise if the
attack were aimed at all computers without trying to differentiate (e.g. a Botnets attack). The


same is true if the cyber-attack is carried out with a cyber ‘weapon’ (virus etc.)83which cannot
differentiate between military and civilian infrastructure. The principles of precaution in attack
and proportionality impose an obligation to control the spread of a virus, so that the cyber-attack
affects only military infrastructure, or civilian objects in a proportionate manner. Stuxnet is a
good example, because it was designed with the sole aim of attacking the Siemens system of
Iranian centrifuges.

Applying IHL to these new technologies and means of combat can be tricky. However, the
difficulty in doing so has been exaggerated. While the weapons and tactics may change, the
principals are far from new, they are inherent in IHL.84 Indeed, states wish to be able to retain
certain latitude in the application of IHL. IHL can govern contemporary conflicts because its
principles are adaptable to new challenges. IHL is therefore not obsolete. It is a relevant
framework provided that it is implemented.85

83S Mele, Legal Considerations on Cyber-Weapons and Their Definition, JOURNAL OF LAW AND CYBER WARFARE

(2014) 3(1), 52-69

84 Louise Doswald-Beck, Confronting Complexity and New Technologies: A Need to Return to the First Principles

of International Law, (2012) 106 Proceedings of the 106th Annual Meeting, pp 107-116 <available at:>

85International Institute of Humanitarian Law, INTERNATIONAL HUMANITARIAN LAW AND NEW WEAPONS

TECHNOLOGIES<available at:$file/IHL+&+n


Click to View FlipBook Version