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Published by Enhelion, 2019-12-02 09:30:58

Module_10

Module_10

MODULE 10

INTERNATIONAL WAR AND HOSTILITIES NORMS AND LAW

1. INTRODUCTION

International Law limits and regulates the means and methods of warfare used by the parties
to an armed conflict on the conduct of hostilities. It aims to strike a balance between
legitimate military action and the humanitarian objective of reducing human suffering,
particularly among civilians. In the 19th century the efforts to introduce effective legal limits
on the conduct of war began seriously by the international community. Through a series of
treaties such as Geneva conventions and their Additional Protocols, and the growth of
customary law, there is now an extensive body of law regulating the conduct of hostilities.

The general principles are enshrined in the Hague Convention 1907 and 1949 Geneva
Conventions and their Additional Protocols of 1977. But there are a series of other treaties
covering specific issues, particularly in the field of weapons. In 2005 the ICRC published a
major study on the extensive body of customary international humanitarian law, which is
binding on all states.1

Deliberately targeting civilians is a war crime. The measures must be taken from all sides to
separate military targets from population centres as far as possible. While it can be accepted
that the civilian’s causalities may be sustained when military targets are attacked, both the
sides must take measures to minimize injury and death among civilians, and damage to
civilian objects. If an attack is expected to cause “collateral civilian damages” that are
excessive in relation to the concrete and direct military advantage anticipated, it must be
cancelled or suspended. IHL does not allow the destruction of civilian objects and their
means of survival by attacks on crops, water supplies, medical facilities etc. and also forbids
terrorizing of civilian population. Use of human shields and hostage taking are also
prohibited.

The wounded and sick and those no longer taking part in hostilities must be respected.
Medical facilities and personnel must not be attacked. All parties to a conflict must respect
the use of the protective emblems enshrined in the Geneva Conventions and their Additional
Protocols, namely the Red Cross, the Red Crescent and the red crystal.

Regulations pertaining to the choice of weapons clearly constitute a major part of the law on
the conduct of hostilities. Under IHL, this choice is not unlimited. In addition to the
principles of distinction and proportionality, IHL has outlawed specific types of weapons
through a series of international treaties, in particular biological and chemical weapons,
blinding laser weapons and anti-personnel landmines. Most recently, in 2008 the Convention
on Cluster Munitions was adopted.

1 International law on the conduct of hostilities: overview, https://www.icrc.org/en/document/conduct-
hostilities

2. LIMITATIONS ON THE MEANS AND METHODS OF WARFARE

Methods of warfare are the strategies and tactics used in hostilities against an enemy in items
of conflict. Means of warfare are the weapons or weapons system used. The only legitimate
objective of war is to weaken and overpower the opponent’s military forces. Within the ambit
of interstate conventional warfare, each party to the conflict mirrors the other with regard to
the potential military resources. Furthermore, the principle of reciprocity in the treatment of
combatants facilities respect for the law of armed conflict. The imbalance between forces and
the lack of symmetry between the means often leads the belligerents to avoid direct military
confrontation. These methods directly weaken the distinction between civilians and
combatants and the choice of military objectives, as well as the methods of warfare.

The two 1977 Additional Protocols aim to take into account the characteristics of these kinds
of conflict. Additional Protocol I limits what may be destroyed in international armed
conflicts. It also covers the issue of resistance under situations of occupation. Additional
Protocol II confines the confrontations in non-international armed conflicts.

War is a part of history and of international relations. It is a transitional phase and must be
conducted in a way that will not make a return to peace impossible. Various international
humanitarian law texts therefore establish the principles that limit the choice of methods of
warfare.

• The 1899 and 1907 Hague Conventions, as well as the 1949 Geneva Conventions and
their 1977 Additional Protocols, set forth the main rules, restrictions, and prohibitions
concerning the use of violence and different methods of warfare in international and
non-international armed conflicts.

• The conventions define which acts are war crimes and establish sanctioning
mechanisms to punish the authors of such crimes. Some of these crimes are defined as
grave breaches of the Geneva Conventions or war crimes and therefore come under
the principle of universal jurisdiction and the competence of the International
Criminal Court.

• Despite the numerous violations of these rules, their repeated use over time has
conferred most of them the value of “customary norms.” These rules have been
compiled by the ICRC in a study published in 2005 (customary IHL study). The rules
are now binding on all parties to a conflict, even States that are not parties to the
conventions and organized non-state armed groups that cannot ratify the conventions
or have not formally adhered to such rules. They apply almost in the same manner in
international and non-international armed conflicts. Rules 1 to 10 of the customary
IHL study concern the principle of distinction between civilian and military
objectives. Rules 11 to 24 address the principles of precaution and proportionality in
attacks. Rules 46 to 65 deal with specific methods of warfare and Rules 70 to 81
regulates the use of the different types of weapons.2

2 The practical guide to humanitarian law, https://guide-humanitarian-law.org/content/article/3/methods-
and-means-of-warfare/

2.1 REGULATING THE WEAPONS OF WAR

The right to choose the methods and means of warfare is not unlimited. International law
imposes restrictions on the manufacture and use of certain weapons—namely, those that
strike civilians and combatants indiscriminately or cause damage that is extensive or basically
irreversible and is disproportionate to any specific military advantage (Rules 7 to 24 of the
customary IHL study).

2.2 REGULATING THE TECHNIQUES OF WAR

Humanitarian law prohibits gratuitous and wanton violence and destruction. It requires that
any means of violence employed

(i) be justified by a real and direct military necessity,
(ii) be directed to a military objective, and
(iii) be proportionate to the threat. Those are known as the principles of distinction,

military necessity and proportionality. The application of the principle of
proportionality has been extended to the assessment of incidental loss of civilians
by the attack of a military objective and the duty to take necessary precautions to
limit them.

International humanitarian law prohibits:

• the use of means and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering (API Art. 35; Art. 22 of the rules of the 1907 Hague
Conventions; and the 1868 Saint Petersburg Declaration);

• Carrying out attacks with the goal that there will be no survivors—in other words,
giving no quarter (API Arts. 40, 41; Art. 35 of the 1907 Hague Convention on the
laws and customs of war). Rule 46 of the customary IHL study provides that
“ordering that no quarter will be given, threatening an adversary therewith or
conducting hostilities on this basis is prohibited.”

Prohibited methods of warfare include:

• perfidy (API Arts. 37–39; Rules 57–65)
• terror (API Art. 51, APII Art. 13, Rule 2)
• famine (starvation) of civilians (API Art. 54, APII Art. 14, Rule 53)
• reprisals against non-military objectives (GCI Art. 46; GCII Art. 47; GCIII Art. 13,

GCIV Art. 33; API Arts. 20, 51–56; Art. 46 of the 1954 Convention on the Protection
of Cultural Property)
• attacks against protected persons and civilian objects, indiscriminate attacks (API
Arts. 48, 51; Rules 1 and 6)
• attacks aimed at causing damage to the natural environment (API Arts. 35, 52, and 55;
Rules 43–45)
• attacks against works and installations containing dangerous forces (API Arts. 52, 56;
APII Art. 15; Rule 42)

• pillage of cultural objects and property (GCIV Art. 33; Art. 4 of 1954 Convention on
the Protection of Cultural Property; APII Art. 4; Rules 38–41 and 52)

• taking hostages (GCI–IV Art. 3; GCIV Art. 34; API Art. 75; principles of
international law established by the statute and judgments of the Nuremberg
Tribunals; Art. 12 of the 1979 Convention against the Taking of Hostages; Rule 96);

• Using human shields or population movements to favour the conduct of hostilities
(GCIV Art. 49; API Art. 51; APII Art. 17; Rules 97 and 129).

Military commanders are under the obligation to respect and enforce the respect for
international humanitarian law, including the prohibitions listed above. They must:

• take certain precautions when attacking (Rules 15–21 of the customary IHL study);
• ensure that their subordinates know and understand humanitarian law;
• Punish any of their subordinates who have acted in violation of these rules.

The Regulation of Methods of Warfare in the Customary IHL Study

Most of the following rules are applicable both in international armed conflicts (IAC) and in
non-international armed conflicts (NIAC).

Distinction between Civilian Objects and Military Objectives

Rule7. The parties to the conflict must at all times distinguish between civilian objects and
military objectives. Attacks may only be directed against military objectives. Attacks must
not be directed against civilian objects. [IAC/NIAC]

Indiscriminate Attacks

Rule 11. Indiscriminate attacks are prohibited. [IAC/NIAC]

Rule 12. Indiscriminate attacks are those:

1. which are not directed at a specific military objective;
2. which employ a method or means of combat which cannot be directed at a specific

military objective; or
3. Which employ a method or means of combat the effects of which cannot be limited as

required by international humanitarian law; and consequently, in each such case, are
of a nature to strike military objectives and civilians or civilian objects without
distinction. [IAC/NIAC]

Proportionality in Attack

Rule 14. Launching an attack which 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, is prohibited.
[IAC/NIAC]

Precautions in Attack

Rule 15. In the conduct of military operations, constant care must be taken to spare the
civilian population, civilians and civilian objects. All feasible precautions must be taken to

avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and
damage to civilian objects. [IAC/NIAC]

Rule 16. Each party to the conflict must do everything feasible to verify that targets are
military objectives. [IAC/NIAC]

Rule 17. Each party to the conflict must take all feasible precautions in the choice of means
and methods of warfare with a view to avoiding, and in any event to minimising, incidental
loss of civilian life, injury to civilians and damage to civilian objects. [IAC/NIAC]

Rule 18. Each party to the conflict must do everything feasible to assess whether the attack
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. [IAC/NIAC]

Rule 19. Each party to the conflict must do everything feasible to cancel or suspend an attack
if it becomes apparent that the target is not a military objective or that the attack 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. [IAC/NIAC]

Denial of Quarter

Rule 46. Ordering that no quarter will be given, threatening an adversary therewith or
conducting hostilities on this basis is prohibited. [IAC/NIAC]

Rule 47. Attacking persons who are recognised as hors de combat is prohibited. A
person hors de combat is:

1. anyone who is in the power of an adverse party;
2. anyone who is defenceless because of unconsciousness, shipwreck, wounds or

sickness; or
3. Anyone who clearly expresses an intention to surrender; provided he or she abstains

from any hostile act and does not attempt to escape. [IAC/NIAC]

Rule 48. Making persons parachuting from an aircraft in distress the object of attack during
their descent is prohibited. [IAC/NIAC]

Destruction and Seizure of Property

Rule 49. The parties to the conflict may seize military equipment belonging to an adverse
party as war booty. [IAC]

Rule 50. The destruction or seizure of the property of an adversary is prohibited, unless
required by imperative military necessity. [IAC/NIAC]

Rule 51. In occupied territory:

1. movable public property that can be used for military operations may be confiscated;
2. immovable public property must be administered according to the rule of usufruct;

and
3. Private property must be respected and may not be confiscated except where

destruction or seizure of such property is required by imperative military necessity.
[IAC]

Rule 52. Pillage is prohibited. [IAC/NIAC]

Starvation and Access to Humanitarian Relief

Rule 53. The use of starvation of the civilian population as a method of warfare is prohibited.
[IAC/NIAC]

Rule 54. Attacking, destroying, removing or rendering useless objects indispensable to the
survival of the civilian population is prohibited. [IAC/NIAC]

Rule 55. The parties to the conflict must allow and facilitate rapid and unimpeded passage of
humanitarian relief for civilians in need, which is impartial in character and conducted
without any adverse distinction, subject to their right of control. [IAC/NIAC]

Rule 56. The parties to the conflict must ensure the freedom of movement of authorised
humanitarian relief personnel essential to the exercise of their functions. Only in case of
imperative military necessity may their movements be temporarily restricted. [IAC/NIAC]

Deception

Rule 57. Ruses of war are not prohibited as long as they do not infringe a rule of international
humanitarian law. [IAC/NIAC]

Rule 58. The improper use of the white flag of truce is prohibited. [IAC/NIAC]

Rule 59. The improper use of the distinctive emblems of the Geneva Conventions is
prohibited. [IAC/NIAC]

Rule 60. The use of the United Nations emblem and uniform is prohibited, except as
authorised by the organisation. [IAC/NIAC]

Rule 61. The improper use of other internationally recognised emblems is prohibited.
[IAC/NIAC]

Rule 62. Improper use of the flags or military emblems, insignia or uniforms of the adversary
is prohibited. [IAC/arguably NIAC]

Rule 63. Use of the flags or military emblems, insignia or uniforms of neutral or other States
not party to the conflict is prohibited. [IAC/arguably NIAC]

Rule 64. Concluding an agreement to suspend combat with the intention of attacking by
surprise the enemy relying on that agreement is prohibited. [IAC/NIAC]

Rule 65. Killing, injuring or capturing an adversary by resort to perfidy is prohibited.
[IAC/NIAC]

3. LAWS GOVERNING WEAPONS MANUFACTURING, PROCUREMENT AND
USE

The combatants’ right to choose their means and methods of warfare is limited by a number
of basic IHL rules regarding the conduct of hostilities, many of which are found in Additional
Protocol I of 1977 on the protection of victims of international armed conflicts.

The only other reference in international treaties to the need to carry out legal reviews of new
weapons, means and methods of warfare is found in Article 36 of Additional Protocol I of

1977. The aim of Article 36 is to prevent the use of weapons that would violate international
law in all circumstances and to impose restrictions on the use of weapons that would violate
international law in some circumstances, by determining their lawfulness before they are
developed, acquired or otherwise incorporated into a State’s arsenal.

4. MATERIAL SCOPE OF APPLICATION OF REVIEW MECHANISM

• TYPES OF WEAPONS TO BE SUBJECTED TO LEGAL REVIEW

Article 36 of Additional Protocol I refers to “weapons, means or methods of warfare”.
According to the ICRC’s Commentary on the Additional Protocols:

“The words ‘methods and means’ include weapons in the widest sense, as well as the
way in which they are used. The use that is made of a weapon can be unlawful in
itself, or it can be unlawful only under certain conditions. For example, poison is
unlawful in itself, as would be any weapon which would, by its very nature, be so
imprecise that it would inevitably cause indiscriminate damage. (...) However, a
weapon that can be used with precision can also be abusively used against the civilian
population. In this case, it is not the weapon which is prohibited, but the method or
the way in which it is used.”

The material scope of the Article 36 legal review is therefore very broad. It would cover:

• weapons of all types – be they anti-personnel or anti-materiel, “lethal”, “non-lethal”
or “less lethal” – and weapons systems;

• the ways in which these weapons are to be used pursuant to military doctrine, tactics,
rules of engagement, operating procedures and counter-measures;

• all weapons to be acquired, be they procured further to research and development on
the basis of military specifications, or purchased “off-the-shelf”;

• a weapon which the State is intending to acquire for the first time, without necessarily
being “new” in a technical sense;

• an existing weapon that is modified in a way that alters its function, or a weapon that
has already passed a legal review but that is subsequently modified;

• An existing weapon where a State has joined a new international treaty which may
affect the legality of the weapon.

PROHIBITIONS ON THE USE OF CERTAIN WEAPONS

Prohibitions or restrictions on specific weapons under international treaty law

In conducting reviews, a State must consider the international instruments to which it is a
party that prohibit the use of specific weapons and means of warfare or that impose
limitations on the way in which specific weapons may be used. These instruments include (in
chronological order) :

• Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grams Weight, St-Petersburg, 29 November/11 December 1868 (hereafter the 1868
St-Petersburg Declaration).

• Declaration (2) concerning Asphyxiating Gases. The Hague, 29 July 1899.
• Declaration (3) concerning the Prohibition of Using Bullets which Expand or Flatten

Easily in the Human Body, The Hague, 29 July 1899.
• Convention (IV) respecting the Laws and Customs of War on Land and its annex:

Regulations concerning the Laws and Customs of War on Land, The Hague, 18
October 1907, Article 23 (a), pursuant to which it is forbidden to employ poison or
poisoned weapons.
• Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines. The
Hague, 18 October 1907.
• Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, Geneva, 17 June 1925.
• Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction. Opened for
Signature at London, Moscow and Washington, 10 April 1972.
• Convention on the Prohibition of Military or Any Hostile Use of Environmental
Modification Techniques, 10 December 1976 (ENMOD Convention).
• 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 (CCW), Geneva, 10 October 1980, and Amendment to Article
1, 21 December 2001. The Convention has five Protocols:

o Protocol on Non-Detectable Fragments (Protocol I), Geneva, 10 October
1980;

o Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps
and Other Devices (Protocol II). Geneva, 10 October 1980; or Protocol on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as
amended on 3 May 1996);

o Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons
(Protocol III), Geneva, 10 October 1980;

o Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), 13
October 1995;

o Protocol on Explosive Remnants of War (Protocol V), 28 November 2003.
• Convention on the Prohibition of the Development, Production, Stockpiling and Use

of Chemical Weapons and on their Destruction, Paris, 13 January 1993.
• Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of

Anti-Personnel Mines and on their Destruction, 18 September 1997.

• Rome Statute of the International Criminal Court, 17 July 1998, Article 8(2)(b),
paragraphs (xvii) to (xx), which include in the definition of war crimes for the
purpose of the Statute the following acts committed in international armed conflict:

“(xvii) Employing poison or poisoned weapons;

“(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices;

“(xix) Employing 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;

“(xx) Employing weapons, projectiles and material and methods of warfare which
are of a nature to cause superfluous injury or unnecessary suffering or which are
inherently indiscriminate in violation of the international law of armed conflict,
provided that such weapons, projectiles and material and methods of warfare are the
subject of a comprehensive prohibition and are included in an annex to this Statute, by
an amendment in accordance with the relevant provisions set forth in articles 121 and
123.”

5. PRINCIPLE OF DISTINCTION

INTERNATIONAL ARMED CONFLICTS

The principle of distinction between civilians and combatants was first set forth in the St.
Petersburg Declaration, which states that “the only legitimate object which States should
endeavour to accomplish during war is to weaken the military forces of the enemy”.[1] The
Hague Regulations do not as such specify that a distinction must be made between civilians
and combatants, but Article 25, which prohibits “the attack or bombardment, by whatever
means, of towns, villages, dwellings, or buildings which are undefended”, is based on this
principle. The principle of distinction is now codified in Articles 48, 51(2) and 52(2) of
Additional Protocol I, to which no reservations have been made. According to Additional
Protocol I, “attacks” means “acts of violence against the adversary, whether in offence or in
defence”. At the Diplomatic Conference leading to the adoption of the Additional Protocols,
Mexico stated that Articles 51 and 52 of Additional Protocol I were so essential that they
“cannot be the subject of any reservations whatsoever since these would be inconsistent with
the aim and purpose of Protocol I and undermine its basis”.] Also at the Diplomatic
Conference, the United Kingdom stated that Article 51(2) was a “valuable reaffirmation” of
an existing rule of customary international law. The prohibition on directing attacks against
civilians is also laid down in Protocol II, Amended Protocol II and Protocol III to the
Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-
personnel landmines. In addition, under the Statute of the International Criminal Court,
“intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities” constitutes a war crime in international armed
conflicts. Numerous military manuals, including those of States not, or not at the time, party

to Additional Protocol I, stipulate that a distinction must be made between civilians and
combatants and that it is prohibited to direct attacks against civilians. Sweden’s IHL Manual
identifies the principle of distinction as laid down in Article 48 of Additional Protocol I as a
rule of customary international law. In addition, there are numerous examples of national
legislation which make it a criminal offence to direct attacks against civilians, including the
legislation of States not, or not at the time, party to Additional Protocol I.

NON INTERNATIONAL ARMED CONFLICT

Article 13(2) of Additional Protocol II prohibits making the civilian population as such, as
well as individual civilians, the object of attack. The prohibition on directing attacks against
civilians is also contained in Amended Protocol II to the Convention on Certain Conventional
Weapons. It is also set forth in Protocol III to the Convention on Certain Conventional
Weapons, which has been made applicable in non-international armed conflicts pursuant to
an amendment of Article 1 of the Convention adopted by consensus in 2001. The Ottawa
Convention banning anti-personnel landmines states that the Convention is based, inter alia,
on “the principle that a distinction must be made between civilians and combatants”. Under
the Statute of the International Criminal Court, “intentionally directing attacks against the
civilian population as such or against individual civilians not taking direct part in hostilities”
constitutes a war crime in non-international armed conflicts. In addition, this rule is included
in other instruments pertaining also to non-international armed conflicts. Military manuals
which are applicable in or have been applied in non-international armed conflicts specify that
a distinction must be made between combatants and civilians to the effect that only the
former may be targeted. To direct attacks against civilians in any armed conflict is an offence
under the legislation of numerous States. There are also a number of official statements
pertaining to non-international armed conflicts invoking the principle of distinction and
condemning attacks directed against civilians.

6. RULES OF MILITARY NECESSITY AND RULES OF PROPORTIONALITY

1. MILITARY NECESSITY

The principle of military necessity is an essential component of international humanitarian
law.

The “principle of military necessity” permits measures which are actually necessary to
accomplish a legitimate military purpose and are not otherwise prohibited by international
humanitarian law. In the case of an armed conflict the only legitimate military purpose is to
weaken the military capacity of the other parties to the conflict.
Military necessity generally runs counter to humanitarian exigencies. Consequently the
purpose of humanitarian law is to strike a balance between military necessity and
humanitarian exigencies. A dominant notion within the framework of IHL is military
necessity, often the principle which clashes most with humanitarian protection. Military
necessity permits armed forces to engage in conduct that will result in destruction and harm
being inflicted. The concept of military necessity acknowledges that under the laws of war,
winning the war or battle is a legitimate consideration.

However the concept of military necessity does not give the armed forces the freedom to
ignore humanitarian considerations altogether and do what they want. It must be interpreted
in the context of specific prohibitions and in accordance with the other principles of IHL. It is
important to note that the notion itself is to be found within the rules of IHL. For example,
Article 52 of Addition Protocol I list those objects that can be subject to lawful attacks. The
notion cannot be applied to override specific protections, or create exceptions to rules where
the text itself does not provide for one.

2. RULE OF PROPORTIONALITY

INTERNATIONAL ARMED CONFLICTS

The principle of proportionality in attack is codified in Article 51(5)(b) of Additional
Protocol I, and repeated in Article 57. At the Diplomatic Conference leading to the adoption
of the Additional Protocols, France voted against Article 51 because it deemed that paragraph
5 by its “very complexity would seriously hamper the conduct of defensive military
operations against an invader and prejudice the inherent right of legitimate defence”. Upon
ratification of Additional Protocol I, however, France did not enter a reservation to this
provision. At the Diplomatic Conference leading to the adoption of the Additional Protocols,
Mexico stated that Article 51 was so essential that it “cannot be the subject of any
reservations whatsoever since these would be inconsistent with the aim and purpose of
Protocol I and undermine its basis”. Also at the Diplomatic Conference, several States
expressed the view that the principle of proportionality contained a danger for the protection
of the civilian population but did not indicate an alternative solution to deal with the issue of
incidental damage from attacks on lawful targets. The United Kingdom stated that Article
51(5) (b) was “a useful codification of a concept that was rapidly becoming accepted by all
States as an important principle of international law relating to armed conflict”.
The principle of proportionality in attack is also contained in Protocol II and Amended
Protocol II to the Convention on Certain Conventional Weapons. In addition, under the
Statute of the International Criminal Court, “intentionally launching an attack in the
knowledge that such attack will cause incidental loss of life or injury to civilians or damage
to civilian objects … which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated” constitutes a war crime in international armed
conflicts.
A large number of military manuals lay down the principle of proportionality in
attack. Sweden’s IHL Manual, in particular, identifies the principle of proportionality as set
out in Article 51(5) of Additional Protocol I as a rule of customary international
law. Numerous States have adopted legislation making it an offence to carry out an attack
which violates the principle of proportionality. This rule is supported by official
statements. This practice includes that of States not, or not at the time, party to Additional
Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in
October 1973, i.e., before the adoption of Additional Protocol I, to respect the principle of
proportionality in attack, the States concerned (Egypt, Iraq, Israel and Syrian Arab Republic)
replied favourably.

NON INTERNATIONAL ARMED CONFLICT

While Additional Protocol II does not contain an explicit reference to the principle of
proportionality in attack, it has been argued that it is inherent in the principle of humanity
which was explicitly made applicable to the Protocol in its preamble and that, as a result, the

principle of proportionality cannot be ignored in the application of the Protocol. The principle
has been included in more recent treaty law applicable in non-international armed conflicts,
namely Amended Protocol II to the Convention on Certain Conventional Weapons. In
addition, it is included in other instruments pertaining also to non-international armed
conflicts.
Military manuals which are applicable in or have been applied in non-international armed
conflicts specify the principle of proportionality in attack. Many States have adopted
legislation making it an offence to violate the principle of proportionality in attack in any
armed conflict. In the Military Junta case in 1985, the National Appeals Court of Argentina
considered the principle of proportionality in attack to be part of customary international law.
There are also a number of official statements pertaining to armed conflicts in general or to
non-international armed conflicts in particular that refer to this rule. The pleadings of States
before the International Court of Justice in the Nuclear Weapons case referred to above were
couched in general terms applicable in all armed conflicts.

3. PROHIBITION OF DIRECT AND INDISCRIMINATE ATTACKS
1. MEANING OF INDISCRIMINATE ATTACK

Article 51(4) of Additional Protocol I of the Geneva Conventions, while itself
formally not applicable in non-international armed conflicts, defines attacks which are
indiscriminate as follows:

(a) Which are not directed at a specific military objective;

(b) Which employ a method or means of combat which cannot be directed at a
specific military objective; or

(c) Which employ a method or means of combat the effects of which cannot be
limited as required by international humanitarian law; and consequently, are of a
nature to strike military objectives and civilians or civilian objects without distinction.

Article 51(5) of the same Protocol, offers the following useful examples of what
would therefore constitute an indiscriminate attack:

(a) an attack by bombardment by any methods or means which treats as a single
military objective a number of clearly separated and distinct military
objectives located in a city, town, village or other area containing a similar
concentration of civilians or civilian objects; and

(b) an attack which 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.

4.5.2 Rule 71. The use of weapons which are by nature indiscriminate is prohibited.

INTENATIONAL ARMED CONFLICT

Additional Protocol I prohibit the use of weapons which are “of a nature to strike military
objectives and civilians or civilian objects without distinction”. This prohibition was
reaffirmed in the Statute of the International Criminal Court. It has also been included in
other instruments.
This rule is set forth in many military manuals. Violations of this rule constitute an offence
under the legislation of several States. This rule is also supported by official statements and
reported practice. This practice includes that of States not, or not at the time, party to
Additional Protocol I.
The prohibition of weapons which are by nature indiscriminate is also recalled in numerous
resolutions adopted by the UN General Assembly, as well as in some resolutions adopted by
the OAS General Assembly. The rule has also been recalled by several international
conferences.
In their submissions to the International Court of Justice in the Nuclear Weapons case,
several States not at the time party to Additional Protocol I referred to the prohibition of
indiscriminate weapons.[10] In its advisory opinion, the Court affirmed that this prohibition
was one of the “cardinal principles” of international humanitarian law.

NON INTERNATIONAL ARMED CONFLICT

By virtue of the customary rule that civilians must not be made the object of attack, weapons
that are by nature indiscriminate are also prohibited in non-international armed conflicts. This
was the reasoning behind the prohibition of certain types of mines and booby-traps in
Amended Protocol II to the Convention on Certain Conventional Weapons, which is
applicable in non-international armed conflicts Similarly, the Ottawa Convention, which
prohibits the use of anti-personnel landmines in all armed conflicts, is based, in part, on the
principle that a distinction must be made between civilians and combatants.

The prohibition of weapons which are by nature indiscriminate is also set forth in several
military manuals which are applicable in or have been applied in non-international armed
conflicts. It is also supported by a number of official statements and reported
practice. Practice is in conformity with the rule’s applicability in both international and non-
international conflicts, as States generally do not have a different set of military weapons for
international and non-international armed conflicts.

In their submissions to the International Court of Justice in the Nuclear Weapons case, many
States considered that the prohibition of indiscriminate weapons was based on the principle
that a distinction must be made between civilians and combatants and between civilian
objects and military objectives. While the Court noted that it would not consider the issue of
non-international armed conflicts, it did state, however, that “States must never make
civilians the object of attack and must consequently never use weapons that are incapable of
distinguishing between civilian and military targets”.

No official contrary practice was found with respect to either international or non-
international armed conflicts. No State has indicated that it may use indiscriminate weapons
in any type of armed conflict.

4. Rule 7 the Principle of Distinction between Civilian Objects and
Military Objectives

INTERNATIONAL ARMED CONFLICT

This rule is codified in Articles 48 and 52(2) of Additional Protocol I, to which no
reservations have been made. At the Diplomatic Conference leading to the adoption of the
Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the
subject of any reservations whatsoever since these would be inconsistent with the aim and
purpose of Protocol I and undermine its basis”. The prohibition on directing attacks against
civilian objects is also set forth in Amended Protocol II and Protocol III to the Convention on
Certain Conventional Weapons. In addition, under the Statute of the International Criminal
Court, “intentionally directing attacks against civilian objects, that is, objects which are not
military objectives”, constitutes a war crime in international armed conflicts.
The obligation to distinguish between civilian objects and military objectives and the
prohibition on directing attacks against civilian objects is contained in a large number of
military manuals. Sweden’s IHL Manual, in particular, identifies the principle of distinction
as set out in Article 48 of Additional Protocol I as a rule of customary international
law. Many States have adopted legislation making it an offence to attack civilian objects
during armed conflict. There are also numerous official statements invoking this rule. This
practice includes that of States not, or not at the time, party to Additional Protocol I.
In their pleadings before the International Court of Justice in the Nuclear Weapons case,
several States invoked the principle of distinction between civilian objects and military
objectives. In its advisory opinion, the Court stated that the principle of distinction was one of
the “cardinal principles” of international humanitarian law and one of the “intransgressible
principles of international customary law”.
When the ICRC appealed to the parties to the conflict in the Middle East in October 1973,
i.e., before the adoption of Additional Protocol I, to respect the distinction between civilian
objects and military objectives, the States concerned (Egypt, Iraq, Israel and the Syrian Arab
Republic) replied favourably.

NON INTERNATIONAL ARMED CONFLICT

The distinction between civilian objects and military objectives was included in the draft of
Additional Protocol II but was dropped at the last moment as part of a package aimed at the
adoption of a simplified text. As a result, Additional Protocol II does not contain this
principle nor the prohibition on directing attacks against civilian objects, even though it has
been argued that the concept of general protection in Article 13(1) of Additional Protocol II is
broad enough to cover it. The prohibition on directing attacks against civilian objects has,
however, been included in more recent treaty law applicable in non-international armed
conflicts, namely Amended Protocol II to the Convention on Certain Conventional
Weapons. This prohibition is also contained in Protocol III to the Convention on Certain
Conventional Weapons, which has been made applicable in non-international armed conflicts
pursuant to an amendment of Article 1 of the Convention adopted by consensus in 2001. In
addition, the Second Protocol to the Hague Convention for the Protection of Cultural
Property uses the principle of distinction between civilian objects and military objectives as a
basis to define the protection due to cultural property in non-international armed conflicts.
The Statute of the International Criminal Court does not explicitly define attacks on civilian
objects as a war crime in non-international armed conflicts. It does, however, define the
destruction of the property of an adversary as a war crime unless such destruction be

“imperatively demanded by the necessities of the conflict”. Therefore, an attack against a

civilian object constitutes a war crime under the Statute inasmuch as such an attack is not

imperatively demanded by the necessities of the conflict. The destruction of property is

subject to Rule 50 and the practice establishing that rule also supports the existence of this

rule. It is also relevant that the Statute defines attacks again installations, material, units or

vehicles involved in a humanitarian assistance or peacekeeping mission as a war crime in
non-international armed conflicts, as long as these objects “are entitled to the protection given
to … civilian objects under the international law of armed conflict”.


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