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IHL

A. General aspects

Jus in bello: rules relating to the conduct of war: jus ad bello: rules relating to the legality of the use of
force in peace times
Rights and duties in GC are erga omnes (ICJ, Advisory Opinion: Legality of Wall in Palestine)
All states have the right (or duty? - debated) to react to breaches
Most rules in IHL apply only for international armed conflicts (IAC); only some apply for non-international
armed conflicts (NIAC)
Reasons why there should be no discrimination in the application of IHL (rules should also apply towards
an aggressor): mostly no objective definition of the aggressor possible; humanitarian reasons (people in
aggressor-state should also enjoy the same protection); reciprocity (aggressor-state would not respect IHL
if it would not enjoy the same privileges)
In the Middle Ages: Limited war (only professional fighters are part of the war not civilians); later: Total
war (also civilians become part of the actual war and suffer its consequences)
No diminishing derogation (by agreements or renunciation) from the guarantees in the GC (Art 6,7 GCI-III:
Art 7,8 GC IV)
Sources of law: treaties and customary law (partly identical) list of treaty provisions that also have
customary law status: ICRC Customary Study
Today GCI-IV, HR are also customary law (ICJ, Advisory Opinion: Legality of Wall in
Palestine)
Duty of treaty parties to effectively enforce the Convention and deal with breaches: Artt. 49/50/129/146
GCI-IV
Regulations regarding naval warfare: GCII & San Remo Manual on Int. Law Applicable to Armed
Conflict at Sea
Persons/objects entitled to special protection against attack have to be visibly identifiable to the adverse
belligerent
This is achieved by the usage of emblems (Art 37ff GCI)
Misuse/imitation/commercial use of such emblems are prohibited (Art 44, 53, 54 GCI; Art
37(1) in connection with Art 85(3)(f) API)
Relationship between human rights and IHL
human rights remain applicable even when IHL applies
ICJ: IHL is lex specialis in times of armed conflict
Human rights are interpreted in the light of IHL (e.g. to determine if there is an arbitrary
deprivation of life)

B. Basic principles of IHL

Two contradicting poles: humanity & military necessity


Derogation of a rule of IHL on the basis of military necessity is only allowed if it is
explicitly stated in that the provision
Both principles may serve as a basis to fill gaps in regulatory IHL and as a guideline for
interpretation
Principle of humanity:
Protected persons shall be treated humanely in all circumstances (e.g. Art 3
GCI-IV; Art 4 APII)
Belligerents shall treat protected persons respectfully (abstain from
mistreatment)
Belligerents shall defend protected persons from dangers/suffering brought by
armed forces
Principle of equality (no discriminative application of IHL)
Principle of limitation (Art 22 HR: Art 35(1) API) not all means of war are allowed
Martens Clause (Art 1(2) AP1)
In cases not covered by this Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the principles of international
law derived from established custom, from the principles of humanity and from the
dictates of public conscience
Main functions: Prevention of the assumption that everything that is not explicitly is
prohibited, is therefor allowed; dynamic factor to secure applicability of IHL facing
subsequent developments; interpretation basis for IHL

C. International and non-international conflicts

Importance of differentiation: most of the rules in GC only apply to IAC


Rules for NIAC: e.g. Common Article 3 GC and rules in APII
But the trend goes towards a harmonization of the rules for IAC/NIAC (e.g. by declaration of the ICTY that
certain rules for IAC evolved into customary law with a wider scope of application; also Art 8 Rome
Statute of the ICC that does not distinguish between both types of conflict)
However: still strong differences in terms of the applicable rules in the field of occupied
territories and prisoners of war
Key distinction feature: the parties that are involved in a particular armed conflict
Special Case: mixed armed conflicts
Belligerent relations that are partly internal and partly international
Internationalization of a NIAC:
E.g. Intervention of foreign armed forces
Applicable law (IAC or NIAC) differs depending on the parties
involved in a certain conflict situation
1) Relationship between the local government and the insurgents:
NIAC
2) Relationship between a foreign state fighting on the side of the local
government and the insurgents: NIAC
3) Relationship between a foreign state intervening on one side and a
foreign state intervening on the other side: IAC
4) Relationship between a foreign state intervening on the side of the
rebels and the local government: IAC
In practice: parties often conclude special treatments according to
Art 3(3) GCI-IV regarding the privileges and duties under IHL

Subset: Foreign state exercises control over rebels (no foreign


armed forces are involved)
ICTY, Tadic-Case: Control by a State over [rebel forces must] be of
an overall character (and must comprise more than the mere provision
of financial assistance or military equipment or training). This
requirement, however, does not go so far as to include the issuing of
specific orders by the State, or its direction of each individual
operation. The criterion of overall control is achieved when the
foreign 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
In case of occupation: foreign government must have overall
control over rebels exercising effective control over the territory
(ICTY, Blaskic-Case: ICTY, Rajic-Case)

E.g. Intervention of an international organization (still debated if IAC or


NIAC applies in armed conflicts between UN troops and troops of local
government; actually being a party vs. exercise of self-defense)
E.g. civil war with successful secession
If seceded country has acquired international recognition, IAC rules
are applicable between troops of ex mother country and the newly
seceded country
E.g. Recognition of belligerency (IAC applies in conflicts between rebels
troops and troops of the recognizing state) no relevance anymore today
Internalization of a IAC:
The government of the country in which the IAC is ongoing is replaced by a
new government that consents to foreign intervention (e.g. Iraq and
Afghanistan)
Reason for change of the nature of conflict:
Either involved states recognize new government
Or, for not recognizing states: same result from the principle of
effectiveness (when it is clear from the facts on the ground that the
new government is in effective control, the armed conflict would
automatically become non international)

D. Applicability of IHL

I. Material scope of applicability (rationae materiae)

1) FOR IAC (Common Art 2 GC) : Armed conflict or declared war or occupation of a territory
without armed resistance
Whenever there is a resort to armed force between States (ICJ, Tadic-Case)
The use of armed force must be intentionally (and not a product of error)
Also consent by the attacked state precludes the application of IHL

Further situation in Art 1(4) API: wars of national liberation (obsolete nowadays, was only
relevant for ex-colonized territories)
Meant to cover cases in which a state occupies territories of a State which is not a
High Contracting Party, or territories with a controversial international status, and to
establish that the population of such territory is fighting against the occupant in the
exercise of their right of self-determination
Also determines the applicability for customary law regarding IAC, Hague regulations and API
Also became customary law (and in that process also became the application criteria for all IHL
rules (even those who specified different application criteria)!!)
effective armed conflict:
objective determination (subjective/formal recognition by the parties as a war not
relevant)
Very low intensity threshold: even minor hostilities are sufficient
declared war:
If hostilities follow a declaration of war armed conflict-requirement becomes
the reference point of the applicability of IHL
If no hostilities follow a declaration of war IHL applies nevertheless from the
declaration onwards
occupation:
2 conditions:
(a) The occupier is able to exercise effective control over a territory that does not
belong to it
(b) Its intervention has not been approved by the legitimate sovereign.
Effective control: the overthrown government is unable to exercise its
authority and the occupying power is in a position to fill that gap by exerting its
own power
2) FOR NIAC (Common Art 3 GC): Rebel forces must display a minimum level of organization and
the armed conflict must present a minimum level of intensity
Armed conflict (for NIAC): Protracted (read: intense) armed violence between governmental
authorities and organized armed groups or between such groups within a State" (ICTY, Tadic
Case)
Higher intensity threshold than for IAC

Also determines the applicability for customary law regarding NIAC


Also applicable when there is a conflict between different rebel (non-government) forces
minimum level of organization
Has to be evaluated on a case-by-case basis
Indicators:
- Existence of an organizational chart indicating a command structure,
- Authority to launch operations bringing together different units,
- Ability to recruit and train new combatants
- Creation of weapon distribution channels
- Public statements
- Use of uniforms
- Existence of internal rules
With regard to government forces: presumed that they meet that requirement
minimum level of intensity
Has to be evaluated on a case-by-case basis
Indicators:
- Duration of the conflict,
- Frequency/gravity of the acts of violence and military operations,
- Nature of the weapons used,
- Number of government forces
- If the conflict is subject to action for the UN Security Council
- Displacement of civilians,
- Territorial control by opposition forces,
- The number of victims (dead, wounded, displaced persons, etc.)
Rule of thumb: when police forces are incapable of dealing with the insurrection
and the army has to be mobilized to defeat the rebels
Conflicts under this threshold: internal disturbances and tensions (Art 1(2) APII)
In this case: domestic law and human rights are applicable

3) FOR NIAC (Art 1 APII): armed conflict on the territory of a member state between its armed forces
and organized armed groups, which, under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted military operations and to
implement AP2
More demanding organization-element

More limited scope than provisions in GC


Not applicable in conflicts between different non-government forces
Determines the applicability of APII

II. Spatial (locale) scope of applicability (rationae loci)

Entire Territory of the belligerent states


All spaces where actual hostilities of relationships between belligerents happen (e.g. high seas)
Territories that are occupied without the existence of a state of war or actual hostilities
But notice: there can be different types of conflicts in the same area (IAC and NIAC at the same
time)
Applicable law is determined by the fighting parties
Exception: agreed Hospital zones (Art 23 GCI) and neutralized zones (Art 15 GCIV)

III. Temporal scope of applicability (rationae temporis)

Objective scope of application: IHL applies during any period of armed conflict/declared
war/occupation without resistance
Subjective scope of application: IHL applies once the convention has entered into force for a state
Exception: customary law applies for every state (also for non- parties of the treaties)

1) Beginning of applicability of IHL


Objective scope: as soon as all material requirements of application are fulfilled (for IAC see
Common Article 2 GC; for NIAC: see Common Art 3 GC)
Subjective scope: see above

2) End of applicability of IHL


objective scope: 3 alternative thresholds
- end of military operations (Art 6(2) GCIV; Art 3(b) API)
General close of military operations
e.g.: conclusion of a general and definitive armistice/ capitulation by a
belligerent or the complete surrender of the vanquished belligerent to the will of
the victor and the assumption of the functions of government in the vanquished
country by the victorious state.
- end of captivity and detention (Art 5(1) GCIII)
- end of military occupation (Art 6(3) GCIV)
One year after the general close of the military operations
BUT several Articles mentioned are applicable for the duration of the
occupation
BUT Hague Regulations also apply for the duration of the occupation (Art
42(1) Annex HRIV)
BUT API also applies for the duration of the occupation (Art 3(b) API)
subjective scope:
- Denunciation from treaties is possible
- Terms: Art 8 Annex HRIV and Common Art 63/62/142/158 GCI-IV
- BUT: stat is still bound by customary law

IV. Personal Scope of application (rationae personae)

Bound parties (IAC): all parties that effectively participate in armed conflicts (by making acts of
war)
Mainly states (more precise: their armed forces), but also international organizations,
non-state entities and individuals (At least under customary law)
Bound parties: (NIAC): see above
Problematic: insurgent movements never ratified the conventions
if a state ratifies the conventions they are applicable in the whole territory and
for all of its inhabitants
Apart from that, everyone is bound by customary law
Protected parties:
- ules on the means of warfare; Hague
Regulations
- Combatants hors de combat (wounded, sick, shipwrecked) GCI,II
- Prisoners of war GCIII
- Civilians GCIV

E. Non-international armed conflicts


No status of occupation
No combatant status for rebel fighters
No POW status for rebels (they may be tried as criminals before the national court)
but Art 6(5) APII: appeal towards the states to grant amnesty to the fighters/detained
people at the end of hostilities in a NIAC (NOT for war crimes)
Only lawful targets: Civilians that directly participate in hostilities (Art 51(3) API, Art 13(3)
APII)

ICRC, Interpretive Guidance (2009) on direct participation in hostilities (DPH):


Two categories of civilian fighters:
In practice a categorization groups has to be made with all reliable information
available at that time
1) Civilians with continuous combat function as members of an organized armed
group
May be targeted at all times and in all places
No civilian status for as long as they remain members of the organized armed
group by virtue of their continuous combat function.
Dissident groups (parts of a states armed forces that turned against the state)
also fall under organized armed groups
An individual that is recruited, trained and equipped by an organized armed
group can be considered to assume a continuous combat function even before
carrying out hostile act
Individuals who continuously accompany or support an organized armed
group, but whose function does not involve direct participation in hostilities, are
not members of that group within the meaning of IHL (e.g. financiers,
propagandists, recruiters, etc. NOTE: also manufacturer, smuggler, purchasers
of weapons/other military equipment) remain civilians under IHL
2) Civilians that engage in hostilities once or only sporadically
May only be attacked during the specific act of DPH
DPH limited to each single act
Starting point of DPH: concrete preparatory measures for that specific act
(e.g., loading bombs onto a plane)
Ending point of DPH: when the activity ends.
Direct (as opposed to indirect) refers to the quality and degree of the civilians
involvement
direct (as in Art 3 GCI-IV) and active (as in Art 51(3), 43(3), 67(1)(e),
13(3) API) are used synonymous
Requirements for an act by an civilian to constitute DPH (cumulative):
1) The act must be likely (means: to be reasonably expected) to adversely affect the
military operations or military capacity of a party to an armed conflict or, alternatively,
to inflict death, injury, or destruction on persons or objects protected against direct attack
(threshold of harm),
Actual materialization of harm is not required (likelihood suffices)
Adversely affecting: Failure of positively affection is not sufficient
2) There must be a direct causal link between the act and the harm likely to result either
from that act, or from a coordinated military operation of which that act constitutes
an integral part (direct causation)
Direct causation: harm in question must be brought about in one causal step
Excluded, for example, conduct that merely build up or maintains the capacity
of a party to harm the enemy
3) The act must have a belligerent nexus (must be specifically designed to support the
military operations of one party to the detriment of another)
Determined objectively (intent is irrelevant)
Harm caused
(a) in individual self-defense or defense of others against violence
prohibited under IHL
(b) in exercising power or authority over persons or territory (lawful
exercise of administrative, judicial or disciplinary authority)
(c) as part of civil unrest against such authority
(d) during inter-civilian violence
lacks the belligerent nexus

Underlying rationale: Exclusion of indirect conduct (e.g. general support for the war
effort through preparation or capacity building, such as the production of weapons) AND
conduct that is protected by other human rights standards, (e.g. political support for a
belligerent party or an organized armed group)
Beginning/End of DPH: Measures preparatory to the execution of a specific act of direct
participation in hostilities, as well as the deployment to and the return from the location
of its execution, constitute an integral part of that act.
Preparatory measures:
- must be of an military nature and have a close link to the subsequent
execution
- Preparatory measures aiming to carry out a specific hostile act (+)
- Preparatory measures aiming to establish the general capacity to carry
out unspecified hostile acts (-)
Criticism:
Treaty provision says for such time but Civilians in the first category may be
attacked at all time
Rise of the risk of erroneous targeting (e.g. ex-fighters in rebel group)

Applicable rules:
Human rights law (at least non-derogable human rights)
Article 3 GCI-IV
Applies also in other situations where there are gaps in the protection by IHL
ICJ - Nicaragua Case: minimum standard of protection und which no
belligerent shall ever fall
APII (develops the protections in Art 3 GCI-IV)
Extended principle of humane treatment (Art 4 APII)
Extended version of rights in Art 3 GCI-IV (Artt. 7-12 APII)
Reproduction of the provisions in API (Artt 48-60 API) regarding protection
of civilians (Artt 13-18 APII)
Customary law

F. Protection of wounded, sick and shipwrecked combatants


Especially GCI,II
Def. [hors de combat]: Art 41(2) API; Def. [Wounded, sick]: Art 8(a) API
Main provision for IAC (Art. 12 and 15 GCI,II):
once combatants are hors de combat, they shall no longer be made the object of an
attack/assault
also enemy belligerents shall respect (abstain from threats, intimidation, harassment),
protect (from dangers caused by the armed conflict and other causes) ) and care for
(search and collection of the wounded and sick without discrimination; also medical care
according to the possibilities available) the belligerents hors de combat under their
control
Also in Art 10 API
For NIAC: Common Art 3 GC and Art 7 APII
But reduced to the minimum core of those duties mentioned above
Those obligations are primary for the parties of the armed conflict
Civilians dont have these duties; but: Note Art. 18 GCI
No discrimination between the wounded/sick people allowed distinction only on the
basis of urgency/need
Obligation to gather information about a wounded, sick combatant and forward those to the
responsible office (Art 16 GCI)
To assist a belligerent state with the aid for the sick and the wounded, the ICRC can provide
support
Medical personnel and their material are granted immunity from attack (Art 19, 24ff GCI)
BUT: medical units must be visibly marked

G. Definition of Combatants (Art 4 GCIII)


ONLY FOR IAC
For NIAC, there is no clear definition of combatant (only Art 75 API, Artt. 4-6 APII)
NIAC: Fighters may be criminally prosecuted (BUT: note Common Art 3(1)(d)) here
human rights is lex specialis to IHL
Effects of combatant status: such persons enjoy immunity regarding criminal charges for having
taken part in the hostilities (war crimes dont fall under this); POW status (and the accompanied
rights in GCIII)
If the status is uncertain: POW status shall be granted anyways (Art 5(2) GCIII; also Art 45(1)
API)
if a person does not fall under this category: GCIII is not applicable for him; apart from that:
ICTY, Brdjanin-Case: he falls automatically into the scope of GCIV
least if he meets the requirements of Art 4 GCIV reflects customary law
Argument: GCIV was drafted to close gaps of protection
Other opinion: only minimum standards apply (Art 5(3) GCIV), because he does not fall
into the scope of GCIII or IV (minimum standards: Common Article 3 GC; Art 75 API;
human rights)
Argument: wording of Art 5(1) GCIV
Consequences of being a regular combatant:
May be made the object of attack, at all times (unless hors de combat) (Art 48 AP1)
Enjoys combatant immunity from criminal prosecution for ordinary hostilities Art
43(2) AP1
When captured POW status and treatment for duration of IAC Art 4 jo. 118 GCIII,
44(1) AP1

I. Regular members of the armed forces (Regular combatant status) Art 13(1) GCI, Art 4(A)(1) GCIII, Art
43 API
All persons incorporated into the army of a state that are engaged in a mission, that sees them
actively taking part in hostilities (actual fighting is not necessary)
Medical personal/chaplains do not have a combat mission and therefor dont fall under this
category (covered by Art 33 GCIII)
Militias/volunteer corps/police forces that become incorporated into the regular army by
this has to be given to
the other party
The non-recognition of one state by the other is irrelevant for the combatant status (Art 13(3)
GCI, Art 4(A)(3) GCIII)
Civilian status is restored once a member of the armed forces disengages from active duty and
re-integrates into civilian life
II. Civilians participating in a leve en masse (Regular combatant status) Art 13(6) GCI, Art 4(A)(6)
GCIII, Art 43 API
Civilians that spontaneously take up arms to defend their country for a short period of time (at a
time when there is no current occupation by the other party)
They must distinguish themselves from a non-combatant civilian

III. Resistance movements and militias not incorporated into the regular army (Regular combatant status)
Art 13(1),(2) GCI, Art 4(A)(2) GCIII, Art 43 API
Very strict requirements
If the requirements are not met: combatant is not entitled to POW status if captured (if the
relevant state has only signed GCI-IV)
If state also has signed API:
Art 44(4) API: detaining power shall grant equivalent protection to such
combatants
Art 75 API (fundamental guarantees) in any case
irregular combatant

1) Militia must be linked to a party of the conflict (must fight for the same cause; not private goals)
2) Commanded by a person responsible for his subordinates
3) Having a fixed distinctive sign recognizable at a distance
Exception for periods of active combat: Art 44(3) API
4) Carrying arms openly
5) Conducting their operations in accordance with the laws and customs of war.
Non-compliance with the rules of IHL does not deprive a combatant of his POW-rights (Art
44(2) API)

H. Protection of Civilians
Protection of civilians outside of zones of active hostilities (GCIV)
Protection of civilians during active phases of combat (Hague regulations, API)
Protection is lost, when a civilian engages in armed hostilities (Art 51(3) API, Art 13(3) APII)
Also reflects customary law
Consequences of being a civilian
May not be made the object of attack Art 51(2) API
No combatant immunity against criminal prosecution for any participation in hostilities
(domestic law; not on basis of ICL!)
May not be detained (interned) arbitrarily Art 79 GIV
Only if Civilian poses a serious threat to security/if its absolutely necessary (Art
27(4), 41, 42, 78 GCIV)
Interned person can request a review of the detention decision (Art 41, 78 GCIV)
Afterwards periodic review on a 6-monthly basis
Detention has to cease immediately, when the reason for detention no longer exist (Art
132 GCIV, Art 74(3) API) OR as soon as possible after the close of hostilities (Art 46,
133(1) GCIV)
Special categories of persons: medical/religious personnel:
- Permanent Medical personnel:
May not be made object of attack (Art 24 GCI)
Identifiable by RC emblem (Art 40 GCI)
In hands of enemy retention only if necessary for POWs (Art 28 GCI jo. Art 33 GCIII)
- Auxiliary Medical personnel:
May not be made object of attack when carrying out their duties (Art 25 GCI)
Identifiable by RC emblem in miniature (Art 41 GCI)
In hands of enemy: POW status (Art 29 GCI)

Fourth Geneva Convention:


Applicability (Art 4 GCIV)
Ordinarily: Protection of enemy civilians (civilians with the nationality of the
enemy party in combat)
Special provisions for children: Art 77, 78 API; Art 4(3) APII; Art 50, 68(4)
GCIV
Also state-less persons (Art 73 API) and civilians of third states (if they no
longer enjoy the diplomatic protection of their home state)
nationality must be interpreted as including allegiance (ICTY, Tadi-Case)
NOT: Protection of a civilian against belligerents of his home state (Exception:
Part 2 (Art 13-26) of GCIV)
Def. [Civilian]: all non-combatant persons (Art 50(1) API) also customary
law
Def. (in the hands of]: all persons in an area controlled by the adverse
belligerent
Types of rules and personal scope of application:
Part II [13-26]: all persons (incl. own nationals)
Part III.1 [27-34]: enemy aliens and inhabitants of occupied territory
Part III.2 [35-46]: enemy aliens
Part III.3 [47-78]: inhabitants of occupied territory
Part III.4 [79-159]: interned enemy aliens and inhabitants of occupied
territory

I. Targeting and means of attack (Art 48-58 API, Rule 1-24 ICRC Customary Study)

I. Distinction between civilian objects and military objectives

1) Target Selection
Only objects that are military objective are legitimate targets (no civilian objects) Art 52(1) API
Definition [military objective]: Art 52(2) API (also reflects customary law)
In so far as objects are concerned, military objectives are limited to those [a] objects which by
their nature, location, purpose or use make an effective contribution to military action and
[b] whose total or partial destruction, capture or neutralization, in the circumstances ruling
at the time, offers a definite military advantage.
Implies also the notion to prevent unnecessary destruction (explicit codification in Art 23(g)
HR)
Effective contribution to military action: relates to military action in general; no direct
connection with specific combat operation needed
Nature: refers to the intrinsic character of the object
Purpose: refers to the belligerents intended future use of an object (possible future use is not
sufficient)
Use: current function
Definite military advantage: concrete and perceptible rather than hypothetical and
speculative
Debated: whether the definite military advantage must accrue from a single attack or if
a mere contribution to obtaining a military advantage is sufficient

In case of doubt: Art 52(3) API (rebuttable presumption) reasonable belief that target is military
objective is required (ICTY, Galic-Case)
If party fails to separate civilian and military objects: possible breach of the obligation to take
precaution against the effects of a attack (Art 58 API) for cases when a party arbitrarily uses civilian
objects to launch military attacks
Art. 50(3) AP I protection of population in spite of the presence of non-civilians
Attacking party has to do everything feasible to verify that the intended target is military object (Art
57(2)(a)(i) API) countries possessing superior intelligence capabilities have to use such technology
if available in that special situation
Special case: Dual use targets (targets that serve both civilian and military purposes (e.g. power plant)

2) Terms regarding the execution of an attack on a legitimate target

a) Indiscriminate attacks
Definition: Art 51(4) API
Those attacks are prohibited per se
Specific prohibitions in Art 51(5) API (here, not the number of casualties is relevant,
but the mind-set of the attacker)
Special rules regarding the use of (voluntary) human shields (Art 51(7) API, Art 28
GCIV; also reflects customary law)
b) Precautionary measures
Exhaustive list in Art 57 API
Goal: minimization of civilian casualties
Every mentioned measure contains a subjective element to implement an ex ante-
assessment
General limitation: only practicable and practically possible precautions have to be
taken into account
Precautionary Measures that have to be taken by a belligerent regarding its own
territory: Art 58 API
c) Principle of minimum feasible damage (Art 57(2)(a)(ii) API)
If several means or methods yield the same military advantage, the one that causes the
least collateral damage, has to be chosen
All relevant factors and circumstances (ex ante!) have to be taken into account
Important factors in this regard (inter alia!!!): method of ware and the timing
of the attack
Underlying limitations: feasibility and availability
Countries with more advanced warfare equipment available have to use it
d) Proportionality
There must be an acceptable relation between the legitimate destructive effect and the
undesirable collateral effects of an attack
Debated: customary nature of the principle of proportionality

II. Other objects protected against attacks

1) Undefended/open towns or non-defended localities (Art 25 HR; Art 59 API)


By unilateral declaration of one belligerent and acknowledgement of the other, a certain locality
is declared undefended
All troops/military material of the belligerent have to be evacuated from that area and the fixed
military installations will not be used anymore for military purposes
The adverse party, as a result, will not attack the specified area
2) Hospital/Safety/demilitarized zones (Art 23 GCI; Art 14 GCIV)
Safe havens for victims of war and protected persons
Arms are not allowed in hospital zones
3) Neutralized zones (Art 15 GCIV; Art 60 API)
See under 2) Difference: latter are more temporal, smaller, closer to the front and created by
ad-hoc agreement
4) Cultural property (Art 53 API: Convention for the Protection of Cultural Property in the Event of an
AC)
5) Objects indispensable for the survival of civilian population (Art 54 API)
E.g. foodstuffs or water
Also customary law
6) Natural environment (Art 55 API)
Only the infliction of widespread, long-term and severe damage to the environment is
prohibited.
Definition [long-term]: must last for months or years
Definition [severe]: must endanger the health or the survival of the civilian population.
Definition [wide-spread]: geographically extensive and not merely confined to a localised area
7) Works/installations containing dangerous forces (Art 56 API)
E.g. Nuclear plants, dykes
List in Art 56 API not exhaustive
Immune against attacks
Exception: if they are military objectives and if attack cannot cause the release of the dangerous
force
Exception: if such an installation significantly and directly supports military operations, and if
the attack is the only way to terminate such support.

III. Prohibited Weapons

Art 35 API: the right of the Parties to the conflict to choose methods and means of warfare is not
unlimited
Art 36 API: Restrictions regarding the development of weapons
Main principles
Prohibition of weapons and means rendering the death inevitable
Underlying thought: in war it is sufficient to render an enemy hors de combat to defeat
him and death is not necessary to achieve this less destructive alternative is preferred
Prohibition of weapons that cause superfluous injury or unnecessary suffering (Art 35(2)
API)
Also customary law
Suffering is unnecessary when, in the circumstances, another practicable militarily
means, causing less suffering to the adverse combatants, could have been used to place
the adversary hors de combat
E.g.: projectiles which flatten or fragment themselves when entering the human body
Prohibition of Weapons that have an indiscriminate effect (Art 48 API)
Also customary law
Para. 4: Definition of indiscriminate attacks
Specific prohibitions of certain weapon types (see, inter alia, Rule: 72-86 ICRC Customary Study)
Nuclear weapons have a special status; the question of their legality simply was excluded in the
process of drawing up API by request of the nuclear powers
ICJ, Nuclear Weapons Advisory opinion: the threat or use of nuclear weapons would
generally be contrary to the rules of international law [] the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defense, in which the very survival of the State would be
at stake.

IV. Prohibition of Perfidy (Art 37-39 API)


Definition [perfidy]: Art 37 API
Reflects customary law (Rules 58-63 ICRC Customary Study)
Also in Art 23(b),(f) HR
Prohibition of the misuse of the Red Cross emblem: also in Art 54 GCI, Art 45 GCII
Three elements are constitutive of perfidy (must be cumulatively present):
a) an act of deception as to the applicability of a protection under the LOAC;
b) with the aim of gaining a military advantage; and
c) when the military advantage consists in killing, injuring or capturing an adversary.
Must be the direct result
BUT: Ruses of war are allowed; Difference: Perfidy contains the deceit about the applicability of a
IHL protection

V. Other prohibited means and methods of warfare


Means of warfare: weapons or physical devices used in combat
Methods of warfare: tactical or strategic (non-physical) techniques designed to weaken the adversary
War Crimes: Violations of substantive rules of IHL
All means or methods have to be compatible with the general principles of IHL (ICJ, Tadic-Case:
applies also in NIAC)
Partial list of prohibited means and methods: Art 8 Rome Statute Para. 2(b): for IAC; Para 2 (e): for
NIAC
Art 40 API: Prohibition of the refusal of mercy (surrendering enemy soldiers must be spared and taken
POWArt 12 GCIII
Art 23(h) HR; Art 130 GCIII; Art 147 GCIV: Prohibition to make a captured enemy soldier fight
against his own country

J. Belligerent Occupation

Must be distinguished from peaceful occupation (occupation is the result of an agreement that is freely
entered into between the territorial and another state)
But peaceful occupation can turn into a belligerent one and vice versa
Local government must be autonomous
Relevant provisions: Artt 42-56 HR (mainly regulations regarding administrative rights and duties) ;
Artt 47-78 GCIV (mainly regulations regarding protection of the civilian protection)
Definition [occupation]: Art 42 HR, Art 43 GCIV Reflects also customary law
Occupying Power must obtain effective control/authority
Lack of consent to the presence of enemy armed forces by the relevant state
Effective control: [1] the overthrown government is de facto unable to exercise its authority
in that area and [2] the occupying power is de facto in a position to fill that gap by exerting its
own power
Only absence of governmental authority is required, not anarchy
If foreign power cannot exercise authority: No occupation & therefor those rules dont apply
If foreign power is not willing to exercise power: Rules on occupation apply
nevertheless (Reason: Safety and protection of civilians shall be re-established)
Problematic: Unwillingness due to lack of resources
Main features:
Maintenance, as far as possible, of the status quo in the occupied territory (Art 43 HR)
Underlying rationale: Situation of occupation is only provisional and temporary
Occupying power should modify the status of the territory as sparingly as possible and
change as few of the local laws and institutions as practicable
Local laws remain in force (Exception: for the security of the occupying power) and
Local courts remain competent (Art 43 HR, Art 64 GCIV)
Specific provisions on criminal law (include human rights guarantees): Art 65-78
GCIV
Allowed changes:
- Laws contrary to human rights/IHL shall be abolished
- Adoption of laws that ensure the security of the occupying forces and
establishment of tribunals to punish violations of these rules (Art 64(2), 66
GCIV)
Duty to protect law and order in the occupied territory, as well as for ensuring public
hygiene and health, relief, food and medical supplies (Art 43 HR; Art 55-61 GCIV)
Annexation of occupied territory prohibited under Art 2(4) UN Charter
Also: annexation cannot deprive civilians of its protections under IHL (Art 47
GCIV)
Prohibition of deportations and transfers of population (Art 49 GCIV)
Exceptions: security of population: imperative military necessity
Non-nationals have the right to leave/repatriation (Art 48 GCIV)
Role of the occupying power:
- Administrator & usufruct (Art 55 HR)
- allowed to collect taxes (Art 48-51 HR)
Respect for individual rights of the civilian population
In an occupation situation: human rights and IHL apply both (overlapping) (ICJ,
Advisory Opinion: Legality of Wall in Palestine)
Provisions: Art 49-78 GCIV
Especially property rights:
- No confiscation: Art 46 HR
- No pillage: Srt 47 HR
- No destruction unless absolutely necessary: 53 GC IV
- Protection of cultural heritage: Art 53 API
- But: proportionate requisitions for the occupying army allowed (Art 52 HR)

Beginning: when a hostile army penetrates into territory under the sovereignty of another state, or at
least not under the sovereignty of its own state, and begins to exercise effective and exclusive control
over it (Art 42 HR, also customary law)
End: when the hostile armed forces cease to control the occupied country
Can be by formal announcement; treaty, withdrawal of troops from territory; decision of an
international institution
Art 6(3) GCIV: some provisions of the Convention will cease to apply one year after the general close
of military operations
But superseded by customary law (see also Art 3(b) API): cessation of applicability of all GC
provisions not until the end of belligerent occupation

K. Protection of Prisoners of War (POW)

Regulated by GCIII
Once members of the armed forces of belligerents, other lawful combatants and persons entitled by analogy
to a prisoner of war status (religious and medical personnel) have been captured, the enjoy POW status
(Art 4, 33 GCIII)
Structure:
General Rules (Art 12-16 GCIII)
Art 13: absolutely fundamental duty of humane treatment
Art 14: respect for the integrity of the person and their honour
Art 15: duty to maintain and provide medical care to the prisoners free of
charge
Art 16: duty to treat detainees equally, excepting well-founded distinctions
such as rank, sex or professional qualifications.
Rules as to the beginning of captivity (Art 17-20 GCIII)
Art 17: the detaining power can question the prisoner, but that he or she is
only obliged to respond to certain points. Apart from that prisoner is free to
refuse to answer.
If prisoner refuses to answer to allowed questions: may be restricted
in privileges
Article not applicable in regard to criminal proceedings about crimes
that are not covered by the combatant immunity (E.g. war crimes)
Art 18, 19: Evacuation of POW from combat area
Rules as to the internment of prisoners of war (Art 21-48 GCIII)
Topics: security; quarters; food and clothing;13 hygiene and medical
attention; religious, intellectual and physical activities; discipline; respect due to
the rank of prisoners of war; and transfer of prisoners of war after their arrival in
camp
Rules on labour of prisoners of war (Art 4957 GCIII)
Art 49: General Rule
Art 50: Explicitly allowed labour
Art 52: Explicitly prohibited labour
Rules on financial resources of prisoners of war (Art 5868 GCIII)
Objective: allow prisoners to purchase the services or commodities they need
whilst in detention
Art 61: duty to accept payment of sums of money to the prisoners, even if the
payment comes from an opposing belligerent power
Rules on the relations of the prisoners of war with the exterior (Art 6977 GCIII)
Topics: Sending of a capture card to the family of the prisoner,
correspondence, exemptions from postal charges, sending of relief shipments
Rules on relations between prisoners of war and the authorities (Art 78108 GCIII)
Topics: representation of prisoners in their dealings with the detaining power;
penal and disciplinary sanctions that may be imposed on prisoners.
Art 82: Right to prosecute POW for war crimes
Art 86, 99ff: Rights to due process & Fair Trail
Art 85: POW keeps his status/rights after conviction
Art 100f: Special restrictions regarding the death penalty
Rules as to the termination of captivity (Art 109121 GCIII)
Art 111 the repatriation of seriously wounded or sick prisoners during the
continuing hostilities (since they are no longer able to fight Art 109ff)
Art 118f: Repatriation of prisoners at the general close of hostilities
Objective: immediate release & prevention of procrastination in that
matter (in practice problematic)
Modification of application in practice since not all POW want to
return to home country (E.g. due to fear of prosecution) duty for
immediate release only applies if POW consents
Art 120f: Procedure in case a POW dies in detention camp

L. Enforcement of IHL

Special agreements between the conflict parties can be made that increase the amount of applicable
rules (in NIAC Art 3(4) GCI-IV) respectively render a certain regime of rules applicable in situations
where the nature of the conflict is unclear
Art 6/6/6/7 GCI-IV
Only applies inter partes and for the conflict specified in the agreement
Agreements may not adversely affect the situation of protected persons; no lower standard than
the one stipulated in GCI-IV may the agreed on
Reprisals
Definition: a violation of IHL committed in response to a violation of the LOAC by the other
party, in order to induce that other party to comply with the law.
Legality is highly debated (especially in NIAC)
Not generally prohibited, but only many special prohibitions regarding the target
Not against:
- Wounded, sick shipwrecked combatants and other protected persons under
GCI,II (Art 46 GCI, Art 13(3) GCII) and those covered by Part II of API (Art20
API)
- POW (Art 13(3) GCIII)
- Civilians in the hands of the enemy belligerent party (Art 33(3) GCIV)
- Civilians (Art 51(6) API) and civilian objects (Art 52(1) API) during hostilities
- Historic monuments, works of art or places of worship which constitute the
cultural or spiritual heritage of peoples (Art 53(c) API)
- Natural environment (Art 55(2) API
- Works and installations containing dangerous forces (Art 56(4) API)
Conditions for the execution of reprisals (ICTY, Martic-Case)
a) The purpose of the reprisals may only be to secure future law-compliance, not, for
example, to punish for a violation of the law
b) Must be a measure of last resort (ultima ratio); no other, less intrusive, means for securing
law-compliance must be available
c) Must be proportionate to the wrong suffered
d) The decision to take reprisals must be made at the highest level of government
e) Must cease as soon as the adversary complies with the law.
Protecting Powers
States in dispute can nominate a protecting power (independent third party state) to mediate in
their dispute and help the to overcome their differences (all involved states have to accept
nomination)
Functions of protecting power (Art 8/8/8/9 GCI-IV): link between parties; exercise of protection
and control
Almost never used
Fact-Finding Commission (Art 90 API)
Impartial organ to investigate alleged breaches of IHL
Never has been established in a case
Criminal prosecution
Universal jurisdiction in regard to war crimes
Requirement for a violation of IHL to be criminally punishable (ICTY, Tadic-Case)
(i) The violation must constitute an infringement of a rule of IHL
(ii) The rule must be customary in nature or the relevant treaty must be applicable
(iii) The violation must be serious (must constitute a breach of a rule protecting
important values and the breach must involve grave consequences for the victim)
(iv) The violation of the rule must entail individual criminal responsibility
Combatants that get orders contrary to IHL have to refuse to obey otherwise: criminal
responsibility (No I only acted upon superior orders-defense)
Special status of Commander in armed conflict
Duties Art 87 API (in case of non-compliance: criminal prosecution for war crimes)
Criminal responsibility of a commander: Art 28 Rome Statute
Criminally responsible if he or she knew, or should have known that subordinates
were planning to violate or have violated IHL without doing anything to prevent or to
suppress such action
should have known: threshold/ requirements in Art 86(2) API
No obligation to search for information regarding the conduct of subordinates
Art 91 API
Party that committed a breach is liable for compensation
A state is responsible for the actions committed by its armed forces

M. ICRC

constituted as an association under Swiss private law and also a subject of public international law
Mission Statement: Art 5 Statutes of the International of the Red Cross/Red Crescent Movement
7 principles (in Preamble of Statutes of the International of the Red Cross/Red Crescent Movement
Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity, Universality
Role:
intermediary between the parties to the conflict
exercise of the right of humanitarian initiative in order to improve the situation of the protected
persons beyond what is foreseen in the conventions (Art 9/9/9/10 GCI-IV, Art 81 API)
E.g. ICRC may off its services to the parties in NIAC (Art 3(3) GCI-IV)
Limited to proposals
No proposals for political settlements
duty to visit and interview without witness prisoners of war and detained civilians (Art 143 GCIII)
Rationale: Protection of detainees
Also Art 126 GCIII
Not in NIAC
duty to provide relief to protected civilians, POWs and to the population of occupied territories
(Art 8 GCIII)
duty to search for missing persons, to trace prisoners of war and civilians and to forward family
messages (Art 140 GCIII, Art 33 API)
duty to use the good offices of the ICRC to facilitate the creation of hospital and safety zones, as
well as neutralized zones (Art 14,15 GCI)
Guardian of the Conventions
Contributing to development/ interpretation of IHL
Duty to inform about IHL in peace time (Art 47/48/127/144 GCI-IV, Art 19 APII)