International Law of Armed Conflict and Use of

Force

Module C: The Conduct of Hostilities: Jus in Bello, Part I

P. Okowa
This Study Guide was prepared for the University of London by:
Dr Phoebe Okowa LLB (Nairobi) BCL (Oxon), DPhil (Oxon), Advocate (High Court of Kenya)
This is one of a series of Study Guides published by the University. We regret that owing to pressure of work
the authors are unable to enter into any correspondence relating to, or arising from, the Guide. This course has
been designed for independent self-study – no interactive teaching support is provided by the University of
London.
If you have any comments on this Study Guide, favourable or unfavourable, please use the form at the back of
this Guide.

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 Contents

Chapter 1: Introduction 5
1.1 Aims and Objectives of This Course 5
1.1.1 The Distinction Between Jus ad Bellum and Jus in Bello in the Modern International Law of Armed
Conflict 5
1.1.2 Structure of the Course 6
1.1.3 Study Sequence 6
1.2 Introduction to Module C 7
1.3 How to Use this Study Guide 7
1.3.1 Reading 8
1.4 Allocating your Time 9
1.5 Keeping up to Date 9
1.6 Case Law 9
1.7 Note-taking 9
1.8 The Examination 9
1.8.1 Preparing for the Examination 10
1.8.2 Taking the Examination 10
1.9 Examination Techniques 11
Chapter 2: Nature and Sources of International Law 12
2.1 Nature of International Law 12
2.1.1 Different Schools of Thought 13
2.1.2 International Law in Context 14
2.2 Sources of International Law 14
2.2.1 Introduction 14
2.2.2 Traditional Sources of International Law 14
2.2.2.1 Treaties 14
2.2.2.2 Customary International Law 16
2.2.2.3 General Principles of Law Recognised by Civilised Nations 17
2.2.2.4 Judicial Decisions and Teachings of the Most HIghly Qualified
Publicists 18
2.2.3 Non-Traditional Sources of International Law 19
2.2.3.1 Resolutions in International Organisations 19
2.2.3.2 Soft Law 20
2.2.3.3 Unilateral Acts 20
Chapter 3: Introduction to International Humanitarian Law 22
3.1 What is International Humanitarian Law? 23
3.1.1 The History of IHL 24
3.1.2 Sources of IHL: Hague and Geneva Law 25
3.1.2.1 Hague Law 25
3.1.2.2 Geneva Law 26
3.1.3 Sources of IHL: Other Instruments 27
3.1.4 Sources of IHL: Customary Law 27

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 3.1.5 Sources of IHL: Judicial Decisions and Teachings of Publicists 27
3.1.6 Sources of IHL: Martens Clause 28
3.1.7 Sources of IHL: The international Committee of the Red Cross 29
3.1.8 The Relation between IHL and IHRL 29
3.1.9 Overview of the contemporary sources of ius in bello 33
Chapter 4: The Concept and Classifications of Armed Conflict 34
4.1 When does an Armed Conflict Exist? 35
4.2 International Armed Conflicts 35
4.2.1 Wars against Colonial Domination,Foreign Occupation and Apartheid 36
4.2.2 Equal Application 37
4.2.3 Third States 37
4.3 Non-International Armed Conflicts 38
4.3.1 Common Article 3 39
4.3.2 Additional Protocol II 40
4.4 Internationalized Conflicts 42
Chapter 5: Combatants and POWs 43
5.1 Combatant Status 46
5.2 Combatancy and POW Status 47
5.2.1 Unlawful Combatants 48
5.2.2 Mercenaries, Spies and Special Forces 49
5.3 Capture and Detention 49
5.3.1 Unlawful Combatants and Capture 50
Chapter 6: The Use of Certain Weapons of Warfare 52
6.1 The Principles of Proportionality in International Law 53
6.1.1 Indiscriminate Attacks 54
6.1.2 The Limits of Proportionality and Precaution 54
6.1.3 Assessing Proportionality 55
Chapter 7: Means and Methods of Warfare 57
7.1 The Importance of Means and Methods of Warfare 58
7.2 Avoiding Unnecessary Suffering and the Martens Clause 58
7.3 Avoiding Affecting Neutral States 59
7.4 Avoiding Excessive Environmental Damage 60
7.5 Particular Means and Methods 60
7.5.1 Particular Methods of Combat 60
7.5.2 Particular Means of Combat 61
Chapter 8: Nuclear Weapons 64
8.1 The Issue of Nuclear Weapons in International Law 65
8.1.1 The Use of Nuclear Weapons Against Japan in WWII 65
8.1.2 The Framework Behind Nuclear Weapons 66
8.1.3 The ICJ’s Advisory Opinion on Nuclear Weapons 66
8.1.4 The Exception 68
Works Cited 70

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Chapter 1: Introduction

1.1 International Law of Armed Conflict and Use of Force

Welcome to this course in International law of armed conflict and use of force, part of the Postgraduate Laws
Programme offered through the University of London International Programmes. The purpose of this Study
Guide is to help you with the study of international law as it relates to the use of force in international relations.
The course is focused on the principle prohibiting the unilateral use of force in the conduct of international
relations is widely regarded as one of the most fundamental principles in the United Nations Charter (Art. 2(4)).
Two exceptions to the basic prohibition are nevertheless provided for in the Charter (Art. 51)): (1) States are
permitted to use force in self-defence, and (2) the Security Council can authorise the use force where this is
necessary to maintain or restore international peace and security.
The exact scope of the prohibition on the use of force and the exceptions thereto have, however, been the
subject matter of intense controversy and differing interpretations by States and academics. The situation was
compounded by the Cold War, which largely paralysed the collective security arrangements envisaged by the
UN Charter. The post-Cold War era has unleashed a new set of problems, which in some respects call for a re-
evaluation of the basic Charter provisions on the use of force as well as the exceptions thereto.
The four modules of this course fall into two distinct parts under the headings jus ad bellum and jus in bello.
The main emphasis in the first part (Module A and B) is on issues such as the use of force in self defence, use of
force for purposes of collective security, to rescue one’s nationals abroad, for humanitarian purposes, etc. The
role of the United Nations and other International Organisations is discussed in detail. Contemporary cases
(Somalia, Haiti, Congo, the former Yugoslavia, the Gulf War, Kosovo, East Timor, Afghanistan, Iraq, Georgia)
are all analysed. The second part of the course (Models C and D) deals with jus in bello, what today is usually
called international humanitarian law or the laws of armed conflict. It focuses on the means and methods of
warfare, and the protection of civilians, prisoners of war and other categories of persons.
Although the international law of armed conflict is distinctly a legal discipline it is closely intertwined with
political processes and the role of law must be evaluated from the standpoint of its goals and values. The use of
force by non-state groups, including liberation movements and groups classified as ‘terrorist’ has profoundly
affected the nature and complexity of legal rules in this field. The content of the law must therefore be analysed
within the context of these transformational events in international society and their impact on the structure and
content of the law must be considered.

1.1.1 The distinction between Jus ad Bellum and Jus in Bello in the
modern international law of armed conflict
Central to an understanding of the law of armed conflict is the distinction between the law governing recourse to
force (jus ad bellum) and the law which regulates the actual conduct of hostilities once the use of force is
underway (jus in bello).
‘During the first part of the [20th] century it was generally assumed that international law could be divided into
two almost entirely self-contained parts: the law of peace and the law of war. While the former governed the
relationships between states at most times, the outbreak of war (or lately of any armed conflict, whether or not it
had the status of war) suspended the operation between the belligerents of most of the law of peace and
subjected their relations with one another to the law of war, while their relations with neutral states, though still
subject to the law of peace, became modified by the principles of the law of neutrality. Within this concept of
international law, questions about the legality of the use of particular weapons were clearly a matter for the law
of war. As the century progressed, the jus ad bellum became grafted onto the law of peace, governing the
circumstances in which it was legitimate for a state to move from a state of peace to one of war. Important as
this development undoubtedly was, it was not originally perceived as altering the legal regime applicable once a
war or armed conflict had broken out. The law of war continued to be seen as lex specialis governing questions
such as the legality of particular weapons or methods of warfare. By the time of the United Nations Charter,

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these developments in the law had produced the apparently anomalous result that international law contained
rules prohibiting resort to warfare or armed conflict and other rules governing how hostilities were to be
conducted if the first body of rules were disregarded’ (Christopher Greenwood, Jus ad Bellum and Jus in Bello
in the Nuclear Weapons Advisory Opinion. International Law, the International Court of Justice and Nuclear
Weapons. (Cambridge: Cambridge University Press, 1999). p. 247)
‘… the two sets of rules necessarily apply at different times, at different stages in the deterioration of relations
between states. Crudely translated, ius ad bellum is the law governing the right to go war once it has started.
Thus conceived the two sets of rules operate in quite distinct spheres. Once hostilities commence, ius ad bellum
ceases to be relevant and ius in bello takes control… ius ad bellum is no longer confined to regulating the right
of states to go to war. It regulates the use of force as a whole. Jus in bello or at least a substantial part thereof, is
no longer confined to the formal state of war. The modern ius in bello applies to any armed conflict between
states which has attained a level of intensity’ (emphasis added) (Christopher Greenwood, The Relationship
between Jus ad Bellum and Jus in Bello. Review of International Studies. Vol. 9 (1983) p. 133-147).

1.1.2 Structure of the Course

This course is comprised of four modules, for each of which you register separately:
Module A begins by identifying the main sources of international law rules that apply to the use of force in
international relations. It then analyses the regulation of the unilateral use of force in a historical perspective,
providing the context for an in-depth analysis of the prohibition as it exists in the United Nations Charter Article
2(4). After assessing the legality of alleged exceptions to Article 2(4), this Module concludes with an analysis of
the legal pre-requisites to a valid claim of individual and collective self-defence.
Module B examines the powers of the Security Council arising under Chapter VII of the UN Charter, including
the authority to establish peace-keeping operations. The authority of regional organisations to use force when
authorised by the Security Council is also considered.
Module C is concerned with the rules of international law governing the actual conduct of war. It assumes that
states will resort to force either in conformity with rules contained in the Charter and forming part of Modules A
and B or in violation of those rules.
Module D is concerned with the legal regime on the protection of civilians and civilian objects.

1.1.3 Study sequence

The course follows the simple sequence of Module A-D. Each module provides the context and conceptual
understanding necessary to tackle the module that follows.

Learning outcomes for the course

Having studied this course, you should be able to:
Critically discuss the different sources of international law and how they relate to each other;
Understand the evolution of the substantive law on use of force from a historical perspective;
Understand the League of Nations Framework of Collective Security as well as its principal
shortcomings;
Explain the place and significance of the Kellog-Briand in the evolution of a restrictive normative
regime on the Use of Force;
Compare and contrast the Restrictive and Permissive Schools on Use of Force in international law;
Understand the content of the prohibition of force as contained in Article 2(4) of the Charter of the
United Nations;
Explain with examples the nature, content and scope of the self-defence exception to the prohibition on
the use of force;
List the problems arising from the use of fore against Non-State Groups;
Explain the concept of ‘humanitarian intervention’ and assess the strength of claims made for a specific
responsibility to protect communities facing mass atrocities;
Understand the United Nations legal framework regulating the use of force;
Clearly convey the jurisprudence of the International Court on the Use of Force. Specifically in the
Nicaragua Case; Oil Platforms Case; Democratic Republic of Congo V. Uganda and the Palestinian Wall case;

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 List the penal consequences of acts of aggression
Describe the evolution of the distinct legal framework of rules governing the conduct of hostilities;
Understand the distinction between the Hague and Geneva Law;
Explain the restrictions on means and methods of warfare;
Understand the distinction between civilians and combatants
Understand the legal framework for the protection of civilians
Explain the rules regarding the targeting and protection of civilian objects;
Explain the law on belligerent occupation;
Understand the legal framework for the enforcement of humanitarian law, including the prosecution for
war crimes.

1.2 Introduction to Module C

Learning outcomes for Module C

Having studied this module, you should be able to:
Explain the history, rationale and legal framework of rules governing the conduct of hostilities;
Understand the classification of conflicts and the significance of the distinction between national and
international conflicts;
Explain the nature and significance of distinction, proportionality, humanity and non-reciprocity as
core principles of humanitarian law;
Understand the rules governing the development and use of weapons;
Explain the prohibition of certain weapons including gas, chemical and biological weapons, land-mines
and nuclear weapons;
Explain the nature and significance of the distinction between combatants and non-combatants;
Explain the legal consequences of the distinction between civilians and combatants, particularly the
rules regarding prisoners of war;
Explain the legal framework for the protection of civilians and civilian objects;
Understand the law on belligerent occupation;
Explain the legal framework for the enforcement of humanitarian law including the responsibility of
commanders and prosecution for war crimes.

1.3 How to use this Study Guide

Each of the four modules of this course has a separate Study Guide, and a version of this introductory chapter is
found in each Guide. The Guide is the focal point of your study for the course. It will introduce the key syllabus
topics, guide your reading of primary and secondary sources, and help you to develop your critical
understanding of the law and to prepare for the final examinations for the course. This Guide is not intended to
replace independent study of legislation, case-law, the set textbooks and other academic literature. It provides a
framework for your study of the course, but as a master’s student you will need to build on this framework in
order to develop your own critical understanding of the subject. The Guide is designed to be easy to read and
use. It also contains several features to aid your study:
learning outcomes for each module and each chapter, so you know what you are expected to achieve at
each stage of your study
self-assessment questions so that you can check that you understand important issues
guidance on Essential reading and Useful further reading.
You should work through each chapter of the Study Guide in sequence; do not ‘dip’ in and out of different
chapters. Begin your study of each chapter topic by looking at the learning outcomes for the chapter, as these
will give you a clear idea of what you are expected to achieve. You should then read through the chapter and the
relevant Essential readings. Make notes as you read. You may well find that you need to read some passages
several times in order to fully understand the issues. Once you have worked through the chapter, the readings
and the self-assessment questions, look again at the learning outcomes. Are you satisfied that you now meet

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them? If not, you should look again at the relevant material. Once you have worked through the Study Guide for
the whole module, you can test your knowledge and understanding of the subject by considering the sample
examination question at the end of the guide. You may wish to try to answer the question in exam conditions
(i.e. to write an answer in 45 minutes without referring to the Study Guide or your study notes), or you may
prefer to work out your answer with reference to your notes. Either way, you should try to answer the question
before you look at the guidance on answering the question. Note that this guidance is deliberately quite brief.
We do not provide you with a full model answer to the question since as a master’s level student you should be
developing your own ideas about the subject.

1.3.1 Reading
The Study Guide refers you to various reading resources. These are divided into Essential reading and Useful
further reading. You should make sure you read everything described as Essential reading. All such readings
should be available to you. Many readings are extracts from the supplied set textbooks (details below), others
are available in the Online Library or elsewhere online, and some others may be supplied to you via the
eCampus (see below). If you are having problems obtaining or accessing any of the Essential readings, please
let us know by filling out an online enquiry form at:
http://enquiries.londoninternational.ac.uk/aspx_shared/newuser.aspx
Occasionally problems do arise with the availability of particular items, but these can usually be resolved
quickly. You should also make sure you check the eCampus page for the course, for up-to-date information on
readings and other course issues.
The Essential readings are the bare minimum for the course. The Guide also refers you to some Useful further
reading, and you will find other references in your set textbook. You should try to read beyond the Study Guide
and Essential reading if you can; the University does not undertake to supply you with further readings, but you
should be able to find some pertinent material in the Online Library. The students who perform best in
examinations for Postgraduate Laws courses are generally those who have taken the time to develop a broad
critical understanding of their subject area, drawing on a range of sources and academic analyses. The eCampus
and electronic resources as noted above, there are important study resources for this course available online, in
the Online Library and eCampus. You should check the eCampus site for the course regularly, since there may
be official notices regarding the course or useful discussions about it in student discussion forums.

Principal Texts
This course is structured on the assumption that you will use the supplied textbooks 1 for this course which are:
Christine Gray, International Law and the Use of Force. New York: Oxford University Press, 2008; or
Yoram Dinstein, War, Aggression, and Self-Defence. Cambridge: Cambridge University Press, 2005.
[Marginal note: 1These are the supplied textbooks at time of publication in January 2015. In due course, we may
start using a different edition/textbook. Details of any change in the supplied textbooks will be provided on the
eCampus and in the annual update supplement, Recent developments.]

An overview of the legal framework

This is a specialised course in public international law. Students are therefore expected to acquaint themselves
with the methods, techniques and processes of law-making in Public International Law. The following readings
are recommended for this purpose. Either:
Malcolm N. Shaw. International Law. 6th edition. Cambridge: Cambridge University Press, 2008.
Chapters 1, 2, 3, 5, 19.
Martin Dixon. Textbook on International Law. 7th edition. Oxford: Oxford University Press, 2010.
Chapters 1, 2, 10.

James Crawford, Brownlie’s Principles of Public International Law. 8th edition. Oxford: Oxford
University Press, 2012. Chapters 1, 3, 23.
Or any other general textbook on international law. Most of these have an introductory chapter on
Sources.

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1.4 Allocating your time
This course has a very wide and diverse syllabus consisting of general issues of international law as well as
numerous specific treaty regimes. It is absolutely necessary to set aside adequate time to learn it.
It is impossible to say with great precision how much time you should set aside for studying the course because
you will all have individual learning rates depending on your circumstances, fluency in English and any prior
study of law. Furthermore some topics of the syllabus require considerably more time than others.
However, as a full-time Postgraduate Laws student you are expected to spend approximately 120 hours studying
and preparing for the examination for each module of this course. It is advisable to set aside a specific amount
of time each week to study the course, increasing the amount in the six weeks before the examination.
Some topics of the syllabus will require considerably more time than others. You should allocate a specific
amount of time for the study of the course each week with a view to completing your study of all topics in the
syllabus so as to leave ample time for revision before the examination.

1.5 Keeping up to date

The international law of armed conflict is an evolving area. This Study Guide was prepared in late 2014, and
there may have been significant developments in the law by the time you read it. If you are studying the course
more than a year after this Guide was published, be sure to look out for the latest edition of the annual update
supplement, Recent developments. This may be published on the eCampus in around February or March each
year. It will outline any major changes in relevant law and direct you to related readings, if available. You
should also aim to keep abreast of the subject through your own research, for example by using relevant journals
and online legal resources. Technically, unless you are advised otherwise the examinations for the course will be
based on the relevant law and related scholarship as at 1 January in the year of examination, so you will be
expected to be familiar with the law up to that date. You will not be required to be familiar with developments
after that date (unless advised otherwise), so you do not need to study them; but equally you are unlikely to be
disadvantaged if you do make intelligent reference to more recent changes in the law.

1.6 Case-law
As in other legal subjects, case-law is very important in international relations law. You will need to study cases
decided by international courts and tribunals. Some of the reports of cases may be found in the books referred to
above. For others you will need to go to the websites of the court or tribunal concerned, and for some earlier
cases you may also need access to the relevant international law reports.

1.7 Note-taking
It is particularly important in studying this course that you make careful and orderly notes on each topic,
including notes relating to all relevant conventions (in particular about their current status which you should
have checked on the relevant website as referred to above).

1.8 The examination

Important: The information and advice given in the following section is based on the examination structure used
at the time this Guide was written. However, the University can alter the format, style or requirements of an
examination paper without notice. Because of this, we strongly advise you to check the instructions on the paper
you actually sit.
Your understanding of the material covered by the syllabus for this module will be assessed by an unseen
written examination of 45 minutes’ length, with reading time. To the extent that there are any prerequisites for
this module, knowledge of the materials covered in those prerequisites may be necessary to answer the
questions on the examination of this module.

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1.8.1 Preparing for the examination
Make sure you study the full range of syllabus topics for each module
The University of London International Programmes uses unseen examination as its main form of assessment
because it is both rigorous and fair. By ‘unseen’, we mean that you will not know what examination question(s)
you have to answer until you are allowed to read the question paper at the start of the exam. It is therefore very
important that you get a good, broad understanding of the syllabus for each module that you study. The question
may test any topic within the syllabus, or may require you to draw on your knowledge of several topics
(possibly including topics studied in any prerequisite modules of the course). Don’t limit your study to a couple
of topics.
Study actively – take notes
Successful examination preparation starts the moment you start studying. Make sure you take notes on the
material you read, summarising the main points and putting them into your own words. This will help you to
understand and remember key issues, see relationships between different sources, and develop your own ideas
and lines of argument. Undertaking the learning activities in the Guide will also help you to do this. And make
sure you allow time later on to go back through your notes and refresh your memory closer to the exam.
Practise your exam technique
In order to do well in the examination, knowledge and understanding of the subject is not enough – you also
need effective exam technique. Answering questions successfully under exam conditions requires a particular
set of skills which you can develop through practice. This Guide offers several sample examination questions,
and if you are studying the course from 2014 onwards, have a look at any past papers which are available to
download from the eCampus. There may also be also Examiners’ reports on some papers, brief commentaries
by the Examiners who marked the papers indicating the kind of issues that they would expect an answer to each
question to cover. Bear in mind that the law may have changed since the older papers and reports were written.
It is sensible to try and answer some questions under examination conditions – that is, writing an answer in 45
minutes without looking at your notes or books.2 Time is very short in the examination, and the best way to
make the most of it is to be prepared and practise.
[Marginal note: 2These are the examination conditions in force at the time of writing, but as noted above the
University may change them.]
Practise answering both essay questions and problem questions
In each examination, you will generally be required to answer one question from a choice of two. There are two
basic types of possible question: essay questions, which require you to consider a proposition or issue, and
problem questions, which require you to apply the law to a hypothetical fact scenario. The question paper will
not necessarily offer you a choice between these two types of question: it may consist of one question of each
type, but it may equally well consist of two essay questions or two problem questions. So make sure you are
used to answering both types of question.

1.8.2 Taking the examination

The golden rule for examination success is to answer the question asked; don’t just reel off a pre-prepared
answer on a particular topic. Start by reading the question carefully – it sounds obvious, but it is essential.
Under the examination rules in force at the time of writing this Guide, you are given five minutes to read the
paper before you start writing your answer. Use that time wisely.
Then, spend a few minutes planning your answer before you start writing it. It is tempting to start writing
straightaway when you have so little time, but planning your answer should help ensure that it has a clear and
coherent structure.
Whether you are writing an essay or tackling a problem question, your answer should begin with a clear
introduction. This need not be long – two or three short sentences should do.
In introducing an essay, you should generally identify:
what you think the question is asking of you
the approach that you will be adopting in your answer.
In answering a problem question, start by identifying the main legal issues that the fact scenario raises.

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Whichever type of question you answer, you will not have time to explore all relevant issues in depth. With only
45 minutes, you need to be selective and concentrate on what you see as the most important issues – though
ideally you will briefly note, in your answer, other issues that may be relevant and explain why those you are
focusing on are particularly important.
In writing the body of your answer, you will need to be succinct. Avoid vague generalisations; use clear
language in straightforward, short sentences. Use a structure which is logical and shows that you are moving
from one issue to another in a way that makes thematic sense.
Substantiate your arguments by identifying relevant law. When referring to cases, you do not need to give a full
citation – a short name (e.g. ‘Tadić’ or ‘Pinochet No. 3’) will usually suffice, though it may also be useful to
identify the relevant court and perhaps the year of judgment. Do not waste time describing irrelevant facts; just
mention the key point(s) of the case in relation to your argument.
If you do all the above – provide a clearly structured answer which clearly addresses the question and is
supported by reference to relevant legal authority – you should at the very least achieve a pass. Better answers
generally also do one or both of two things:
Analyse the question carefully, identifying any underlying assumptions or points of ambiguity which
can then be exposed and discussed.
Discuss relevant academic commentary. If you can demonstrate that you have read beyond the
Essential texts by making intelligent reference to other works, so much the better.

1.9 Examination Techniques

International law of armed conflict and use of force examination papers usually consist only of essay
questions; but sometimes there are also problem questions.
These two types of questions require very different techniques. In the case of problem questions you need to be
able to:
identify the relevant areas of law under discussion
identify the relevant facts in the question
apply relevant international law, including case-law, to those facts.
If you are answering an essay question, a different set of skills is required. The examiners are looking for good
critical answers to often difficult questions and issues. You can achieve high marks only if you are able to show
a clear understanding of these issues and the manner in which they are reflected in the law.
In answering any examination questions, you are expected to demonstrate that you:
have a critical understanding of the legal provisions concerned with the subject matter
know how certain treaty provisions or principles of international law have been applied or interpreted
by international courts and tribunals
are familiar with the leading work in the area.
In your answer, you should refer to the particular provision(s) concerned, whether contained in a bilateral or
multilateral treaty or in any other international instrument on the subject matter.
You should demonstrate an awareness of recent developments in the area and any recent decisions of
international courts and tribunals and major policy decisions taken at the international level, whether within or
outside of relevant international organisations. You should also write your answers in your own words and
provide your own views on a question, citing authorities as far as possible. To prepare for examinations, be sure
to look at the past examination papers for this subject, and, where available, the Examiners’ reports on them.
These give detailed examples of the kind of responses that examiners are looking for. The papers and reports are
available online on the course website.
Good luck with your studies!

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Chapter 2: Nature and Sources of International Law

Introduction
This is a course in public international law. It is therefore important that you have a firm understanding of the
nature, sources and methodology of public international law. For instance, although the basic legal regime on
the use of force is in the Charter of the United Nations, as a constitutional document it must be interpreted in
light of state practice and relevant policy developments since 1945. But which of these developments are crucial
in evaluating their impact on the Charter? What counts as state practice? What weight should be given to
technological developments such as the development and manufacture of new weapons in evaluating state
practice? Moreover, the prohibition on force is regarded as one of the most significant principles in the system
of international legal order. The implications of this status, particularly regarding the relationship between the
prohibition of force as a super norm and other rules of the international system, require careful evaluation.

Essential reading
Shaw, Malcolm N. International Law. 6th edition. (Cambridge: Cambridge University Press, 2008)
Chapters 1, 2 and 3.
Shelton, D. International Law and Relative Normativity. International Law (Oxford: Oxford University
Press, 2014) p. 137-165.
Evans, Malcolm. International Law. 4th edition. (Oxford: Oxford University Press, 2014) Part II.

Learning outcomes
By the end of this section you will be able to:
Differentiate between the various schools on the nature of international law
Identify and discuss the nature of the traditional and modern sources of international law
Discuss how the different sources of international law relate to each other as well as compare and
contrast their relative strengths and weaknesses
Explain the meaning and effect in international law of:
o Jus Cogens
o Treaty Reservations
o Opinio Juris
o Pacta Sunt Servanda

2.1 Nature of International Law

Why do States obey international law? The leading treatise on international law perceptively points out that: ‘It
is not possible to say why international law as a whole is binding upon the international community without
entering the realm of non-legal considerations’ (R Jennings and A Watts, Oppenheim’s International Law.
Oxford: Oxford University Press, 2008. p.14) It is, however, in accord with practical realities to see the basis of
international law in the existence of an international community, the common consent of whose members is that
there shall be a body of rules of law - international law - to govern their conduct as members of that community.
In this sense ‘common consent’ could be said to be the basis of international law as a legal system. This notion
of a common consent is reinforced by there being an increasing number of matters (such as international civil
aviation, the use of international rivers, and questions of pollution) for which some rules are a real necessity and
which can only be satisfactorily regulated by internationally valid rules.
‘Common consent’ cannot mean, of course, that all states must at all times expressly consent to every part of the
body of rules constituting international law. Such consent could never in practice be established. The
membership of the international community is constantly changing and the attitude of individual members who

12
may come and go must be seen in the context of that of the international community as a whole, whilst dissent
from a particular rule is not to be taken as withdrawal of consent to the system as a whole.
The common consent that is meant is thus not consent to particular rules but to the express or tacit consent of
states to the body of rules comprising international law as a whole at any particular time. Membership of the
international community carries with it the duty to submit to the existing body of rules and the right to
contribute to their modification or development in accordance with the prevailing rules for such processes. Thus
new states which come into existence and are admitted into the international community thereupon become
subject to the body of rules for international conduct in force at the time of their admittance. No single state can
say on its admittance into the community of nations that it desires to be subjected to certain rules of
international law and not to others. Admittance includes the duty to submit to all the rules in force, with the sole
exception of those which are binding upon such states only as the parties to a treaty creating the rules in
question.
Similarly, no state can at some time or another declare that it will in future no longer submit to a certain
recognised rule of international law. The body of the rules of this law can be altered by the generally agreed
procedures only, not by a unilateral declaration on the part of one State. This applies to all rules other than those
created by treaties which admit of denunciation or withdrawal (Jennings & Watts (2008) Introduction and p. 14-
15).

2.1.1 Different schools of thought

There are different schools of thought as to the nature of international law:
1) Instrumentalists:
These theorists stress the primacy of purposes, values and process. This is sometimes known as the policy-
oriented approach. The focus is on international law as a dynamic decision-making process rather than a set of
rules. Values of the community and the world order will influence the decision-making process. It essentially
postulates that shared community values override any specific rules.
According to instrumentalist Myers McDougal:
International law is most usefully conceived, not as a pre-existing body of rules, but as a comprehensive process
of authoritative decision in which rules are continuously made and re-made; the function of the rules of
international law is to communicate the perspectives (demands, identifications, and expectations) of the peoples
of the world about this comprehensive process of decision; and that the rational application of these rules in
particular instances requires their interpretation, like that of any other communication, in terms of who is using
them, with respect to whom, for what purposes (major and minor), and in what context (Myers McDougal, A
Footnote. American Journal of International Law. Vol. 57 No. 2 (1963), p. 383).
2) Natural law theorists:
This school of thought view international law as founded in the law of nature. Natural law theory postulates that
laws are founded upon the reasoned understanding of what rules nature deems necessary. As such, these laws
are universal, based upon common principles and morals that apply globally.
According to Joseph O’Meara, ‘[n]atural law fruitfully may be regarded as the contribution which ethics can
make to law’ (Joseph O’Meara, Natural Law and Everyday Law. Natural Law Forum. Paper 50 (1960) p. 83).
3) Positivists:
In contrast to the above, these theorists view international law as a set of rules to which States have given their
express or implied consent to be bound. Values and ideals do not have any legal significance; rather, law
essentially is a system of constraints based on formal rules. They see international law as involving a choice
between competing rules and principles. Positivism rests on the idea that law has an objective element, which
should yield a clear outcome in most cases.
According to Hans Kelsen:
Legal principles can never be presupposed by a legal order; they can only be created in conformity with this
order. For they are “legal” only because and insofar as they are established on the basis of a positive legal order.
The only principle which may and must be presupposed is the fundamental principle determining the first
constitution of the legal order, “constitution” meaning the rules determining the methods by which the law is to
be created. These methods are custom, legislation, treaties (Hans Kelsen. Principles of International Law. New
Jersey: Lawbook Exchange, 2003 p.151).

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Note: Throughout the course you should consider whether policy, morals or major purpose should be allowed to
prevail over a rule that is clear and specific. Are there circumstances when a rule should be altered or suspended
on grounds of policy or ends?

2.1.2 International law in context

International Law is not developed nor applied in a vacuum. Instead, this entire course on the use of force must
be understood not just in terms of the content of the applicable legal rules but also the political factors that
influence their application.
[I]nternational law is not an ideal construct, created and given effect solely in terms of its internal logic. Nor can
it be understood only as an instrument to serve human needs and aims (though it is that too). International law
must also be seen as the product of historical experience in which power and the ‘relation of forces’ are
determinants. Those States with power (i.e., the ability to control the outcomes contested by others) will have a
disproportionate and often a decisive influence in determining the content of rules and their application in
practice. Because this is the case, international law, in a broad sense, both reflects and sustains the existing
political order and distribution of power (Oscar Schachter, International Law in Theory and Practice. Boston:
Martinus Nijhoff Publishers, 1991. p. 6).
Moreover, violations of international law are rarely cost free even for powerful states.
States break the rules but also…generally conform to them even against their immediate interest. Nobody denies
that States, powerful and not so powerful, observe international law most of the time. … Many decisions
involve no apparent clash of law and self-interest but numerous decisions arise in which a government refrains
from action (or non-action) that it would otherwise take if there were no legal grounds limiting its discretion. …
In actuality, a good part of law observance takes place because the officials concerned do not even consider the
option of violation; they have, so to speak, ‘internalised’ the rules so that possibilities of action contrary to the
law do not even arise to conscious decision-making (Oscar Schachter, International Law in Theory and Practice.
Boston: Martinus Nijhoff Publishers, 1991. p. 6).

2.2 Sources of international law

2.2.1 Introduction
Article 38(1) of the Statute of the International Court of Justice lists the sources of law which the Court can
apply when making a decision – these are the generally accepted sources of international law. This subsection
refers to treaties, custom, general principles of law, and judicial decisions and teachings of the most highly
qualified publicists, each of which will be discussed below.
The text of Article 38 reads as follows:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to
it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly recognised by the
contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognised by civilised nations;
d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
It is important to note that Article 38(1) of the Statute of the ICJ is not an exhaustive list of
the sources of international law. Other sources may include resolutions of organs of
international organisations, so-called ‘soft law’ and unilateral acts.
2.2.2 Traditional sources of international law
2.2.2.1 Treaties
Although there are no formal constituent elements of a treaty, the definition for the purpose of the Vienna
Convention on the Law of Treaties (VCLT) is as follows: ‘an international agreement concluded between States
in written form and governed by international law, whether embodied in a single instrument or in two or more

14
related instruments and whatever its particular designation’ (Vienna Convention on the Law of Treaties. Vienna,
23 May 1969, 1155 UNTS 331, Art 2(1)(a)).
The ‘designation’ of treaties may include: convention, covenant, protocol, pact, charter, etc. It is important to
remember that treaties are only binding on the parties who have signed them; their rules cannot be imposed on
non-signatory States as a matter of law.
The above definition does not refer to agreements between non-State actors; however, this does not mean that
such agreements will not be valid (see Article 3 VCLT). Other forms of international agreements will be
governed by customary international law, or by other similar regimes, such as that set out in the Vienna
Convention on the Law of treaties between International Organisations or between States and International
Organisations.
An essential rule of the law on treaties is the principle of pacta sunt servanda (‘agreements must be kept’).
Article 26 of the VCLT explains this fundamental principle as follows: ‘Every treaty in force is binding upon
the parties to it and must be performed by them in good faith.’ Moreover, Article 27 adds that rules of domestic
law cannot be used as a justification for failure to perform a State’s treaty obligations. Specifically, ‘A party
may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ (VCLT
(1969) Article 27).
Types of Treaties
Treaties may be bilateral or multilateral:
o Bilateral treaties are concluded between two States or Parties.
o Multilateral treaties are concluded between more than two States or Parties.
Treaties may be contractual or normative:
o Contractual treaties are formed between parties with reference to establishing a specific cooperative
regime, in which parties often have reciprocal obligations i.e.) An agreement between two States to build cross-
border infrastructure.
o Normative treaties set out acceptable behaviour and standards of the parties in certain circumstances,
and performance does not necessarily require reciprocal performance by other parties i.e.) The International
Covenant on Civil and Political Rights.
Reservations
According to Article 2(1)(d) VCLT, a reservation is ‘a unilateral statement, however phrased or named, made
by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude
or to modify the legal effect of certain provisions of the treaty in their application to that State’.
In multilateral treaties, parties often make reservations to certain provisions. Although reservations may have an
impact on the consistency and efficacy of the treaty, allowing for reservations typically increases participation in
the treaty regime. Moreover, parties may subsequently withdraw their reservations.
Not all reservations are valid. In order to be valid, they must not be prohibited by the treaty and must be
compatible with the object and purpose of the treaty (The Vienna Convention, Article 19(c)).
Parties may also make interpretive declarations when signing a treaty. This is where a party declares its
understanding of the provisions of the treaty. These declarations are not to be confused with reservations – they
do not purport to modify the legal effect of any provision.
Jus cogens and Erga Omnes Obligations
It is generally recognized that international law recognizes a hierarchy of norms, with those designated as erga
omes or jus cogens having a superior status. These are norms from which no derogation is permitted. If a treaty
conflicts with such a norm, it is void. Article 53 of the VCLT provides that these are norms ‘accepted and
recognized by the international community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the same character’.
While there is no exhaustive list of jus cogens norms, Article 64 of the Vienna Convention does anticipate the
emergence of new norms of jus cogens, providing the clearest indication that the category was not intended to
be closed. Oppenheim’s leading treatise on international law notes that the category of rules having jus cogens
status is of recent origin and there is no consensus as to norms having this status. Article 66 of the Vienna
Convention provides for the judicial settlement of disputes concerning the application and interpretation of
Articles 53 and 64. Examples given by Oppenheim include the law of the Charter concerning the prohibition of

15
the the use of force; prohibition of slavery, piracy, torture, the commission of genocide; the principle of self-
determination and the equality of states.
Oppenheim further notes that:
…the operation and effect of rules of jus cogens in areas other than that of treaties are similarly unclear.
Presumably no act done contrary to such a rule can be legitimated by means of consent, acquiescence or
recognition; nor is a protest necessary to preserve rights affected by such an act; nor can a rule of customary
international law which conflicts with a rule of jus cogens continue to exist or subsequently be created unless it
has the character of jus cogens, a possibility which raises questions – to which no firm answer can yet be given -
of the relationship between rules of jus cogens, and the legitimacy of an act done in reliance on one rule of jus
cogens but resulting in violation of another such rule’ (Jennings & Watts (2008) p. 7-8).
Thirlway provides one of the best explanations on the nature of these norms in a passage worth quoting in full:
…a relativist viewpoint seems to be generally adopted in most legal writing today; and among States there is at
least a wide measure of support for the notion of jus cogens (and its stablemate the obligation erga omnes). The
existence and nature of what is termed ‘soft law’, one category of which would occupy the opposite end of the
relativity spectrum, is perhaps more controversial, even though examples of texts that would seem to merit that
designation are far more numerous than is the case of jus cogens. A comparatively recent development in
international law, but one that has to a considerable extent remained in the domain of theory, has in fact been
this recognition, or belief, that not all international rules belong to the domain of jus dispositivum, that is to
say, rules that apply failing agreement to the contrary, but which can be set aside in the relationship between
two or more States, by agreement between those concerned. In contrast to these, it is recognized that there is a
category of jus cogens, rules that continue to apply notwithstanding any agreement to the contrary. In the
domestic legal order, the phenomena is so evidently necessary that it is often not explicitly recognized as a legal
category, or at least not with the latin title. The present-day international community recognizes, at least in
general terms, the existence of rules of this kind, also known as ‘peremptory norms’ the clearest example of
such recognition is Article 53 of the Vienna Convention on the Law of Treaties. This text provides that ’[a]
treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law; and the
latter term is defined as meaning ‘a norm accepted and recognized by the international Community of States as
a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent
norm of general international law having the same character’. As a provision of the Vienna Convention, this is
binding only on the parties to that Convention, but there is a generally expressed view that a comparable rule
exists for all states, as a matter of customary law or of ‘general international law’.
The significance of the quality of a norm as jus cogens, on the basis of Article 53 of the Vienna Convention, is
simply to invalidate any agreement purporting to contradict or evade the norm. There has inevitably been a
temptation for scholars to attach wider effects to the concept, since by definition a norm of jus cogens is a
benevolent one, to be given, for that reason, the greatest possible scope. Thus it has been claimed, for example,
that a jus cogens norm can overcome a defect in jurisdiction before the ICJ, or may override State immunity, but
such claims have not been found acceptable by the ICJ.
Another aspect of traditional international law in its character as jus dispositivum is that a State is in principle
free to choose its partners in a treaty relationship. Rights and obligations of this kind are owed by, and
enforceable at the suit of, defined legal persons, either specific to the obligation concerned or falling within a
specific class. This is the relative effect of treaties (and, in domestic law, of contracts): only the parties to the
treaty are bound to perform its stipulations, and to require the other party or parties to do the same. But in
international law the same is generally true of obligations deriving from other sources. In the field of State
responsibility, an injury by one State to another State’s sovereignty or legal rights would traditionally be
regarded as entitling the latter State, and only that State, to seek a remedy (cessation and /or reparation); no
other state or body would have in principle any concern with the matter. Modern international law has however
come to recognize a category of obligations of such importance to the international community; or, more
precisely, in view of the absence of bodies truly representative of the community, by any member of the
community. These are designated ‘obligations erga omnes’ or obligations ‘[owed] towards all’. Reference is
also made to a wider class of ‘rights and obligations erga omnes’ but this must be regarded as a shorter way of
saying ‘obligations erga omnes and the corresponding rights’; the rights to require performance of an obligation
erga omnes, since a ‘right erga omnes’ would be a right that its possessor is entitled to assert against all other
subjects of law; and the majority of rights, other than those derived from treaty, are of this nature (Hugh
Thirlway, The Sources of International Law. (Oxford: Oxford University Press) 2014. p. 144-145).

2.2.2.2 Customary international law (CIL)

There are two components of CIL:

16
1. State practice – this is the actions taken by States i.e.) statements of legal principle, statements in
international organisations regarding actual situations, domestic legislation, decisions by domestic judicial
bodies.
a. Consistency of practice
State practice must be constant and uniform: The Party which relies on a custom…must prove that the
rule invoked by it is in accordance with a constant and uniform usage practiced by the States in
question…(Asylum Case (Colombia v Peru) [1950] ICJ Rep 266, p. 266).
However, uniform State practice is not always necessary, as long as departure from the practice is
recognised as illegal: The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence
of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with
the rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule…(Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. U.S.A) (Merits) (1986) ICJ Rep. 14, para. 186).
The practice of specifically interested States is given special consideration: With respect to the other
elements usually regarded as necessary before a conventional rule can be considered to have become a general
rule of international law, it might be that, even without the passage of any considerable period of time, a very
widespread and representative participation in the convention might suffice of itself, provided it included that of
States whose interests were specially affected (North Sea Continental Shelf Cases (Federal Republic of
Germany v. Denmark; Federal Republic of Germany v. Netherlands) [1969] ICJ Rep. 1969. para. 73).
From your reading, what do you understand ‘specifically interested’ to mean?
2. Opinio juris – the party’s belief that it is obligated by law to act the way it does.
It is more than merely consistent practice: A party’s belief is a requirement for CIL: “The
States concerned must … feel that they are conforming to what amounts to a legal obligation. The frequency, or
even habitual character of the acts is not in itself enough. There are many international acts…which are
performed almost invariably, but which are motivated by considerations of courtesy, convenience or tradition,
and not by any sense of legal duty” (North Sea Continental Shelf Cases (1969), para. 77).
There are uncertainties regarding its weight: There has been some debate over whether opinio juris
should be considered as essential an element of CIL as State practice - Dissenting opinions of judges in the
North Sea Continental Shelf Cases were such that they did not think it possible to discover with certainty the
motivation of a State’s behaviour. In their opinions, opinio juris could be deduced from consistent behaviour in
conformity with the rule, in the absence of an alternative explanation.
On the relationship between treaty and custom:
Treaties may be seen as a source of CIL. According to the International Court of Justice in the North
Sea Continental Shelf Cases, treaty and custom may relate in three ways:
a. A treaty may be declaratory of CIL at the time it is adopted;
b. A treaty may crystallise custom, so that as States negotiate and agree on a provision, that provision may
become CIL; or
c. A provision in a treaty may be set out and then become accepted practice after the treaty has been adopted

2.2.2.3 General Principles of Law Recognised by Civilised Nations

The meaning of this source of law is the subject of debate. Some have argued that it incorporates natural law
principles into international law. Others (mainly positivists) argue that this source adds nothing to international
law, as rules typically considered ‘general principles of international law’, like freedom of the high seas or
sovereign equality, are rules actually derived from CIL or treaty.
However, it is more likely that it is a source which derives its authority from rules and principles which are
common to all legal systems. Examples would include:
Principles of liability and reparations; for example:
o A party to a dispute cannot take advantage of its own wrong (Chorzów Factory Case
(Jurisdiction) (Germany v. Poland) (1927) P.C.I.J., Ser. A, No. 9).
o A party that breaches its obligations must make reparations, e.g. pay damages (Chorzow Factory Case
(1927)).
Principles of good faith and equity; for example:

17
o Estoppel (Diversion of Water from the Meuse (Netherlands v Belgium) P.C.I.J (1937) (Ser. A/B, No.
70).
Estoppel is where one party makes a representation and the other party relies on that representation to its
detriment
o An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully
clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would
further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or
had suffered some prejudice (Case Concerning Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria) (Judgment) [1998] ICJ Rep. 31).
o Maritime boundaries must be agreed following negotiations conducted in good faith; an equitable
result must be achieved (Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada v. United States of America) (Judgement) [1984] ICJ Rep. 67).
o Good faith is a fundamental requirement of the performance of obligations in international law. See,
for example: Pacta sunt servanda in the law of treaties, mentioned above
Article 2(2) of the UN Charter: ‘All Members, in order to ensure to all of them the rights and benefits resulting
from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present
Charter.’
The decision of the ICJ in The Nuclear Tests cases (1974):
‘One of the basic principles governing the creation and performance of legal obligations, whatever their source,
is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an
age when this co-operation in many fields is becoming increasingly essential (Nuclear Tests Cases (Australia v.
France); (New Zealand v France) [1974] ICJ Rep. 457).

2.2.2.4 Judicial decisions and teachings of the most highly qualified publicists
This is a subsidiary source, to be used as a means of determining the rules of international law.
1. Judicial Decisions
Unlike in domestic common law jurisdictions, there is no system of precedent in international law. To this
effect, Article 59 of the Statute of the ICJ states that ‘the decision of the Court has no binding force except
between the parties and in respect of that particular case’.
Nevertheless, the ICJ carefully refers to its previous decisions, at times following previous decisions or
distinguishing previous decisions on the facts of the case. This may be in large part because it perceives a need
for consistency in its judgements.
Moreover, decisions of the Court are seen as representative of existing international law. Thus when the ICJ
states that a rule is declaratory of CIL or there has been insufficient state practice for it to be considered as such,
it may be considered indicative of the status of those rules at the time of the decision.
Decisions of courts other than the ICJ are also considered a source of international law. Examples of such courts
may be specialised courts such as the International Criminal Court (ICC), the International Criminal Tribunals
for the Former Yugoslavia and Rwanda (ICTY and ICTR, respectively), the European Court of Human Rights
(ECtHR), the Inter-American Court of Human Rights (IACHR), the International Tribunal for the Law of the
Sea, and arbitration panels and claims commissions. Additionally, decisions of domestic courts are of use for the
purposes of CIL, often as State practice or providing evidence of what a State believes is binding in
international law.
2. Writings of the most highly qualified publicists
This was a more influential source several centuries ago, when natural law theorists such as Grotius and Vattel
set out their treatises on international law. Since that time, the increased importance of state sovereignty and the
growth of positivism meant that the influence of authors has decreased over time. Nevertheless, reference to the
works on international law by influential academics remains a feature of the practice of international law.
There is a noteworthy debate over the existence of a hierarchy among these sources of international law. It is
clear from the wording of Article 38(1)(d) that this source is intended to be subsidiary, however, the other
sources do not make such express mention of their subsidiary or hierarchical quality. Of interest is that the

18
drafters considered whether to state that the judges of the ICJ shall apply the sources of law in the order in
which the sources appear in Article 38 of the Statute of the ICJ. This wording was rejected.
Attention should be drawn, however, to the clear hierarchy among certain types of laws – a rule of jus cogens
will render invalid any conflicting treaty provision. Moreover, no rule of international law can be used by a UN
Member State to justify a breach of a rule under the UN Charter (Article 103 UN Charter).

2.2.3 Non-traditional sources of international law

Hugh Thirlway has considered whether there are additional sources other than those listed in Article 38. He
notes that :
The enumeration of formal sources in Article 38 of the PCIJ Statute was presumably then regarded as complete
or sufficiently complete for the purposes of judicial settlement, which probably comes to the same thing.
Whether or not it was so in 1920, it has since been questioned whether there may not be today other possible
sources of international law. Presumably the International Court, whose powers are circumscribed by its statute,
would not be able to rely on these eo nomine, but it should not be overlooked that while decisions of
international organisations (for example) are not listed in Article 38, this does not mean that the Court cannot
apply such decisions in its reasoning. It must, however, be possible for the process to be analysed as the
application of one of the named sources. As candidates for the category of unrecognised sources, a number of
possibilities have been mentioned in the literature, but an overall study of the problem published in 2000 will
here be employed as a useful starting point. The author enumerates the following possible sources: unilateral
acts of States; acts of international law making on the part of international organisations; and agreements
between States and international enterprises. In a further category of what may conceivably be sources of
international law are listed consent/consensus; international standards; the use of analogy as a source; decisions
of international tribunals…and some parts of natural law” (Thirlway (2014) p. 19-20)

2.2.3.1 Resolutions in international organisations

UN Security Council Resolutions
Decisions of the Security Council create obligations on Member States of the UN, which must
implement those decisions i.e.) where the Security Council passes a Resolution calling on Member States to
levy sanctions in the form of a trade embargo against another Member State.
o Article 25 UN Charter: The Members of the United Nations agree to accept and carry out the decisions
of the Security Council in accordance with the present Charter.
Moreover, where a Member State experiences a conflict between an international agreement and its
obligations to the UN under Article 25, its obligations under the UN Charter take priority:
o Article 103 UN Charter: In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.
UN General Assembly Resolutions
General Assembly Resolutions are recommendatory and not binding in that the UNGA has no power to
legislate for the international community. However, there are different types of UNGA resolutions, some of
which may have an impact on the content of international law.
Some resolutions are akin to general statements on international law i.e) United Nations General
Assembly. General Assembly Resolution 2625, Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
A/RES/2625. 24 October 1970.
o These statements may contain declarations of existing customary international law i.e.) Resolution on
the Definition of Aggression, 1974 see: Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. U.S.A) (Merits) (1986) ICJ Rep. 14, para.195);
o They may express the hope of the majority but fail to represent the status of international law i.e.) the
yearly resolutions calling for the prohibition on the use or threat of use of nuclear weapons); or
o They may be a step in the development process of customary international law.
Some General Assembly resolutions are situation-specific, although they may state that certain conduct
is in violation of, or supported by international law, depending on the circumstances

19
 The way States vote on General Assembly resolutions is evidence of State practice
The explanations States give for the reasons behind their vote will be evidence of a State’s perception
of international law. The ICJ stated that opino juris “can be deduced from… the attitude of… States toward
certain General Assembly resolutions…’ (Nicaragua case, para. 188) Similarly, In its advisory opinion on the
Legality of the Threat or Use of Nuclear Weapons, the Court observed that:
General Assembly resolutions, even if they are not binding, may sometimes have normative value.
They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the
emergence of opinio juris. To establish whether this is true of a given General Assembly resolution, it is
necessary to see whether an opinion juris exists as to its normative character (Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 70).
In its final report, the ILA Committee on the Formation of Customary Law noted:
…Resolutions of the United Nations General Assembly may in some instances constitute evidence of the
existence of customary international law; help to crystallise emerging customary law; or contribute to the
formation of new law. But as a general rule, and subject to Section 32, they do not ipso facto create new rules
of customary law (ILA, Final Report of the Committee on the Formation of Customary (General) International
Law. Report of the Sixty-Ninth Conference. London, 2000).
Resolutions adopted unanimously or almost unanimously, and which evidence a clear intention on the
part of their supporters to lay down a rule of international law, are capable, very exceptionally, of creating
general customary law by the mere fact of their adoption. In the event of a lack of unanimity (i) a failure to
include all representative groups of States will prevent the creation of a general rule of CIL…and (ii) even if all
representative groups are included, individual dissenting States enjoy the benefit of the persistent objector rule.
2.2.3.2 “Soft Law”
Is constituted by written instruments that explain codes of conduct that are not intended to be legally
binding i.e.) the Universal Declaration on Human Rights, the Helsinki Act 1975, the Bonn Declaration on
International Terrorism 1978
These are not ‘law’ because they are not legally binding, nor enforceable in court; however, they do
have an impact on the conduct of international relations and may, in future, become CIL or become the basis for
a treaty i.e.) the UDHR formed the basis for the two International human rights Covenants (ICCPR and
ICESCR)
On this point Thirlway writes that:
A major criticism of the traditional doctrine of sources is that it is no longer capable of accounting for, or
regulating, the immense mass of quasi-legislative activity that makes up the international law of which States
must now take account in their day–to–day relations and activities. A categorisation of the ‘instruments by
which international institutions exercise public authority’ would include, in descending order of degree of
binding authority,‘international treaties, periodic treaty amendments, decisions on individual cases with binding
effect or decisions having the potential to become binding by way of domestic recognition; various types of soft
law, i.e. non-binding legal instruments’ including product standards or codes of conduct; instruments containing
non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments; and non-
legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact
on the effected policy area’, including such things as ‘reports on implementation and compliance’. Certainly the
concept advanced …of a system of ‘standard instruments for the exercise of international public authority’ into
which all these could be fitted in an orderly and consistent manner, is one highly to be recommended; but it does
not…involve a rethinking of the concept of sources. It is an essay in constitutional thinking, which does not
necessarily involve abandonment of what are regarded as the bases on which the edifice must stand (Thirlway
(2014), p. 28-29)
2.2.3.3 Unilateral Acts
Sometimes the unilateral acts of states, such as the making of a statement by a state official, may give
rise to international legal obligations
Note that the recognition of a new state is a unilateral act with legal consequences
Requirements:
o The State undertaking the unilateral act must have the intention to be bound
o This unilateral act must be done publicly by someone authorised to bind the State

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o i.e.) Nuclear Tests Cases (Australia v. France); (New Zealand v France) [1974] ICJ Rep. 457: France
(via its Office of the President, the President himself, and the French Minister for Foreign Affairs) had made a
series of unilateral public announcements indicating it did not intend to hold any further nuclear tests in the
South Pacific after its 1974 series of tests. The Court held:
Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding
character of an international obligation assumed by unilateral declaration. Thus interested States may take
cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation
thus created be respected… (The Nuclear Tests cases (1974) para. 46).

21
Chapter 3: Introduction to International
Humanitarian Law

Introduction
In Part I of this course we studied the regulations governing the ability of states to go to war with each other. In
Part II, we will look at the regulations that govern the behavior of states and their agents and non-state armed
groups once war has already started. This area of the law is known as International Humanitarian Law or ius in
bello.
In this chapter we will be looking at the historical development and sources of this area of the law as well as its
interaction with other branches of international law.

Essential reading
Dieter Fleck, The Handbook of InternationalHumanitarian Law. (New York City: Oxford University
Press, 2008) Chapter 2.
Green, pp. 13–22 and Chapter II
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict.
(Cambridge: Cambridge University Press, 2004) Chapter I.
International Military Tribunal of Nuremberg. Hostages Case, United States v. List (Wilhelm) and Ors.
(Judgment) [February 1948] 15 Annual Digest 632.

Further reading
Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience. The
American Journal of International Law. Vol. 94 No. 1 (Jan 2000) p. 78-89.
Theodor Meron, The Geneva Conventions as Customary Law. American Journal of International Law.
Vol. 81 No. 2 (April 1987) p. 348-370.
* Theodor Meron, The Humanization of Humanitarian Law. American Journal of International Law.
Vol. 94 No. 2 (April 2000) p. 239-240.
Theodor Meron, Human Rights and Humanitarian Norms as Customary Law. (Oxford: Oxford
University Press, 1991).
Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law.
American Journal of International Law. Vol. 90 No. 2 (April 1996) p. 238-249.
* Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols. Humanitarian Law of
Armed Conflict: Challenges Ahead. (Dordecht: Martinus Nijhoff Publishers, 1991) p. 93-113.
Hersch Lauterpacht, The Limits of the Operation of the Laws of War. Vol. 30 No. 2. British
Yearbook of International Law. (1953) p. 206-243.
Christopher Greenwood, Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion.
International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University
Press, 1999) p. 247-266.
* Hans-Joachim Heintze, On the Relationship Between Human Rights Law Protection and
International Humanitarian Law. 86 International Review of the Red Cross. Vol. 86 No. 856 (Dec 2004) p. 789-
814.
Rene Provost, Reciprocity in Human Rights and Humanitarian Law. British Yearbook of International
Law. Vol. 65 No. 1 (1994) p. 383-454.
Loise Doswald-Beck and Sylvain Vité, International Humanitarian Law and Human Rights Law. Vol.
33 No. 293. International Review of the Red Cross. (1993) p. 94-119.

22
Learning outcomes
By the end of this section you will be able to:
Explain the history of the law on conduct of war ( ius in bello);
Identify the sources of the law;
Explain the relationship between ius in bello and human rights law.

3.1 What is International Humanitarian Law?

IHL is the branch of international law that regulates the actions of states, individuals and organizations during
armed conflict. It is further subdivided into two sub-areas, the Law of International Armed Conflict (LOIAC)
and the Law of Non-international Armed Conflict (LONIAC). As IHL revolves largely around LOIAC, we will
study it extensively while dedicating one chapter toward the end of this part of the module to the study of
LONIAC.
Overall, LOIAC is a complex network of regulations that controls decision-making. As any area of law, it is
binding upon states and its agents, and, as Dinstein notes, it forms a minimum common ground:
LOIAC constitutes a branch of international law, and as such it is binding on all belligerent States. LOIAC must
be differentiated from Rules of Engagement (ROE) issued by various countries (sometimes by diverse
commands in the same country), or by international organizations, and altered at will. ‘ROE may be framed to
restrict certain actions or they may permit actions to the full extent allowable under international law’.
Accordingly, a belligerent State – animated by political or other reasons of its own – may opt not to employ in
given hostilities some destructive weapons the use of which is lawful under LOIAC or to avoid attacking
singular targets constituting legitimate military objectives. As long as it is acting within the powers vested in it
by LOIAC, a belligerent State may at its discretion indulge in a degree of self-restraint. However, under no
circumstances can a belligerent State – through ROE or otherwise – authorize its armed forces to commit acts
which are incompatible with international obligations imposed by LOIAC (Yoram Dinstein, The Conduct of
Hostilities under the Law of International Armed Conflict. (Cambridge: Cambridge University Press, 2004) p.
4).
Within the parameters of IHL, States may make use of the different tools at their disposal to wage war. One of
the particular characteristics of IHL is that its norms and principles are often not absolute, as they seek to find a
balance between humanitarian concerns and military considerations, and this frequently requires limiting one or
the other. However, clear prohibitions do exist in some particular cases and in general IHL attempts to find
solutions that are acceptable in a context of war, where casualties and damage are inevitable. Any actions
outside this framework, however, are illegal, and may give rise to international responsibility.
Field of Application:
‘The term ‘international humanitarian law’ is of relatively recent origin and does not appear in the Geneva
Conventions of 1949. International humanitarian law comprises all those rules of international law which are
designed to regulate the treatment of the individual - civilian or military, wounded or active - in international
armed conflicts. While the term is generally used in connection with the Geneva Conventions and the
Additional Protocols of 1977, it also applies to the rules governing methods and means of warfare and the
government of occupied territory, for example, which are contained in earlier agreements such as the Hague
Conventions of 1907 and in treaties such as the Inhumane Weapons Convention of 1980. It also includes a
number of rules of customary international law. International humanitarian law thus includes most of what used
to be known as the laws of war… A significant development in the law is that, whereas the older treaties applied
only in a ‘war’, today humanitarian law is applicable in any international armed conflict, even if the parties to
that conflict have not declared war and do not recognize that they are in a formal state of war (Dieter Fleck, The
Handbook of InternationalHumanitarian Law. (New York City: Oxford University Press, 2008) p. 11).
Why Should States Seek to Regulate the Conduct of War?
Gary Solis offers the following explanation:
It may seem paradoxical that war, the ultimate breakdown of law, should be conducted in accordance with laws.
But so it is. Why would a state fighting for survival allow itself to be hobbled by legal restrictions? In fact,
nations of the eighteenth and nineteenth centuries, when LOAC was in its formative stages, did not regard
themselves as fighting for survival. Territory, not ideology, was the usual basis of war. Defeat meant the

23
realignment of national boundaries, not the subjugation of the defeated population nor the dissolution of the
vanquished state. Analysis of war prior to nineteenth-century industrialization and Napoleonic enthusiasm
indicates that wars were less violent, less significant and were subject to cultural constraints. War will always
constitute suffering and personal tragedy but rules of warfare are intended to prevent unnecessary suffering that
bring little or no military advantage. Critics argue that, in war, states will always put their own interests above
all else, and any battlefield law that clashes with those interests will be disregarded. As we shall see, LOAC has
been created by states that have their own interests above all else, and any battlefield law that clashes with those
interests will be disregarded. As we shall see, LOAC has been created by States that have their own interests,
particularly the interests of their own armed forces, in mind. LOAC is hardly an imposition on States by faceless
external authorities.
In modern times, despite Clausewitz’s assertion that the laws of war are “almost imperceptible and hardly worth
mentioning,” they remain the best answer to the opposing tensions of the necessities of war and the
requirements of civilization. It is the function of the rules of warfare to impose some limits, however ineffective,
to complete reversion to anarchy by the establishment of minimum standards on the conduct of war. The
temporary advantages of breaching LOAC are far outweighed by the ultimate disadvantages.
Unnecessary killing and devastation should be prohibited if only on military grounds. It merely increases
hostility and hampers the willingness to surrender. An example was the World War II in the Pacific. After an
early series of false surrenders and prisoner atrocities, Pacific island combat was marked by an unwillingness of
either side to surrender, and a savagery of the worst kind by both sides resulted. On Iwo jima, of 21,000-23,000
Japanese combatants, 20,703 were killed. When the island was declared secure only 212 Japanese surrendered -
less than 2 percent - because Marines and soldiers, fearing that they would be murdered or mistreated if they
surrendered, simply put surrender out of mind and fought on, thereby increasing casualties on both sides.
“Violations…can also result in a breakdown of troop discipline, command control and force security: subject
troops to reciprocal obligations on the battlefield or in P.W. Camps and cause the defeat of an entire army in a
guerrilla or other war through alignment of neutrals on the side of the enemy and hostile public opinion”.
The rapacious conduct of World War II Nazis as they crossed Russia toward Moscow and Stalingrad
exacerbated a hatred in the Russian civilian population that led to thousands of German deaths at the hands of
partisans. Michael Walzer notes, “The best soldiers, the best fighting men, do not loot and …rape, do not
wantonly kill civilians”. Strategically, battlefield crimes may lessen the prospect of an eventual ceasefire. War
then, must be conducted in the interest of peace.
Does LOAC end, or even lessen the frequency of battlefield crimes? Was Thucydides correct in noting, “The
strong do what they can and the weak suffer what thy must”? Can we really expect laws to deter violations of
IHL? Idi Amin who robbed and raped Uganda into misery and poverty, ordered the deaths of 300,000 of his
country men and admitted having human flesh, died in palatial comfort in Saudi Arabian exile, never brought to
account for the butchery he ordered during his country’s internal warfare. Josef Mengele, the World war II Nazi
doctor at the Austwitz extermination camp - the Angel of Death who conducted horrific “medical” experiments
on prisoners - escaped to a long and comfortable life in Paraguay and accidentally drowned while enjoying a
day at the beach with his family in 1979. He was never tried for those crimes.
No law will deter the lawless. No criminal code can account for every violator. No municipal or federal law puts
an end to civilian criminality. Should we expect more from LOAC? Geoffrey Best writes, “if international law
is, in some ways, at the vanishing point of international law.” But that is no license to surrender to criminality.
(Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War. (Cambridge: Cambridge
University Press, 2010) p. 7-8).

3.1.1 The history of IHL

International Humanitarian Law is a relatively recent area of international law but efforts to regulate warfare
have existed for millennia. For example, Babylonian, Islamic, Jewish and Christian and Indian teachings all
include provisions on prohibiting certain kinds of weapons, sparing the lives of enemy soldiers that have laid
down their weapons and refraining from attacking civilians. During the start of the Modern Era, many states
started to create their own rules of combat in an effort to promote chivalry and prevent causing unnecessary
suffering to combatants.

24
However, IHL did not take form as a branch of international law until the 19 th century, when extreme carnage
during armed conflict led to the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field. After this initial push, several more conventions were drafted,
culminating in the 1899 and 1907 Hague Conventions as well as the 1951 Geneva Conventions and their
Protocols.
Activity: Find three examples of norms and teachings regulating war before the 19 th century. Then find three
international treaties from that century. (No feedback will be provided for this activity).

3.1.2 Sources of IHL: Hague and Geneva Law

These two sets of norms, known as Hague Law and Geneva Law, form the basis of treaty law in IHL and are
supplemented by customary law and other sources. As the International Court of Justice noted in its Advisory
Opinion in the Nuclear Weapons case, both sets of rules are the main core of IHL and their core provisions have
achieved customary status:
75. A large number of customary rules have been developed by the practice of States and are an integral part of
the international law relevant to the question posed. The "laws and customs of war" - as they were traditionally
called - were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899
and 1907), and were based partly upon the St. Petersburg Declaration of 1868 as well as the results of the
Brussels Conference of 1874. This "Hague Law" and, more particularly, the Regulations Respecting the Laws
and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and
limited the choice of methods and means of injuring the enemy in an international armed conflict. One should
add to this the "Geneva Law" (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of
war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the
hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that
they are considered to have gradually formed one single complex system, known today as international
humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and
complexity of that law.
[…]
79. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it
in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and
Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all
States whether or not they have ratified the conventions that contain them, because they constitute
intransgressible principles of international customary law (Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226. para. 75 and 79).

3.1.2.1 Hague Law

Hague Law comprises two sets of norms: the 1889 and 1907 Hague Conventions. The former is composed of
three sub-conventions and three declarations, which although originally non-binding, are now considered to
reflect certain aspects of customary law:
Conventions
I: Convention for the Pacific Settlement of International Disputes
II: Convention with respect to the Laws and Customs of War on Land
III: Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22
August 1864
Declarations
- Declaration concerning the Prohibition of the Discharge of Projectiles and Explosives from Balloons or by
Other New Analogous Methods
- Declaration concerning the Prohibition of the Use of Projectiles with the Sole Object to Spread Asphyxiating
Poisonous Gases
- Declaration concerning the Prohibition of the Use of Bullets which can Easily Expand or Change their Form
inside the Human Body such as Bullets with a Hard Covering which does not Completely Cover the Core, or
containing Indentations

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The 1907 Hague Conventions largely revised the content of the 1899 Conventions, while also adding new
regulations:
I: Convention for the Pacific Settlement of International Disputes
II: Convention respecting the Limitation of the Employment of Force for Recovery of Contract Debts
III: Convention relative to the Opening of Hostilities
IV: Convention respecting the Laws and Customs of War on Land
V: Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on Land
VI: Convention relative to the Legal Position of Enemy Merchant Ships at the Start of Hostilities
VII: Convention relative to the Conversion of Merchant Ships into War-ships
VIII: Convention relative to the Laying of Automatic Submarine Contact Mines
IX: Convention concerning Bombardment by Naval Forces in Time of War
X: Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (of 6 July
1906)
XI: Convention relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War
XII: Convention relative to the Establishment of an International Prize Court (never came into force)
XIII: Convention concerning the Rights and Duties of Neutral Powers in Naval War
XIV: Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons
As you can see, the Hague Conventions cover two general areas. The first being the use of force in international
law, which you studied during the first part of this course, while the second provides extensive and detailed
rules on the conduct of hostilities during war. We will be focusing on this second subject.
To this day, although many regulations in the Hague Conventions have been superseded by equivalent rules in
the Geneva Conventions and other treaties, the Conventions themselves remain in effect and their dispositions
have achieved customary status, which means that they are binding even upon non-state parties. This customary
status was also noted by the International Military Tribunal of Nuremberg, which referred to the provisions of
Hague II, the main instrument in Hague Law regulating the conduct of hostilities:
The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing
international law at the time of their adoption. But the Convention expressly stated that it was an attempt " to
revise the general laws and customs of war," which it thus recognised to be then existing, but by 1939 these
rules laid down in the Convention were recognised by all civilised nations, and were regarded as being
declaratory of the laws and customs of war which are referred to in Article 6 (b) of the Charter.
Reinforcing its declaration that Hague rules were customary (which we saw earlier in the Nuclear Weapons
Advisory Opinion), the Court reaffirmed this position in the Wall Advisory Opinion:
89. As regards international humanitarian law, the Court would first note that Israel is not a party to the Fourth
Hague Convention of 1907, to which the Hague Regulations are annexed. The Court observes that, in the words
of the Convention, those Regulations were prepared "to revise the general laws and customs of war" existing at
that time. Since then, however, the International Military Tribunal of Nuremberg has found that the "rules laid
down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the
laws and customs of war" (Judgment of the International Military Tribunal of Nuremberg (1946) p. 65). The
Court itself reached the same conclusion when examining the rights and duties of belligerents in their conduct of
military operations (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996
(1), p. 256, para. 75). The Court considers that the provisions of the Hague Regulations have become part of
customary law, as is in fact recognized by all the participants in the proceedings before the Court (Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (Advisory Opinion) [2004]
ICJ Rep 131, para, 89).
Activity: How is the value of the Hague Conventions assessed in the List judgment?

3.1.2.2 Geneva law

There have been a series of Geneva Conventions, starting with the 1864 Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, which was followed by other conventions up
to 1929. The three original Geneva Conventions have been replaced several times, and supplemented with the
addition of Geneva Convention IV in 1949, and their current versions are contained in the 1949 instruments:

26
I: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
II: Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea
III: Convention on relative to the Treatment of Prisoners of War
IV: Convention relative to the Protection of Civilian Persons in Time of War
Unlike the Hague Conventions, which deal with the actual conduct of war, the Geneva Conventions deal mostly
with the treatment of especially vulnerable individuals during conflict, and nowadays are considered to largely
reflect customary law. Which are, however, the nuances of this affirmation according to Meron?
Geneva rules also include its Additional Protocols:
API: Protocol relating to the Protection of Victims of International Armed Conflicts
APII: Protocol relating to the Protection of Victims of Non-International Armed Conflicts
APIII: Protocol relating to the Adoption of an Additional Distinctive Emblem
API contains extensive regulations on the actual conduct of hostilities, largely reflecting and updating the
content of the Hague Conventions. APII, on the other hand, deals with the same issue but exclusively in NIACs,
while APIII merely adds a new Distinctive Emblem to those created in previous conventions. As Greenwood
notes, however, due to the fact that they contain new and more restrictive regulations on combat, API and APII
are not as extensively ratified as the 1949 Conventions and some of the most important military powers have
refrained from becoming parties to them, and not all of their provisions reflect customary law.

3.1.3 Sources of IHL: Other instruments

Along with the basic rules embodied in Geneva and Hague Law, other specialized treaties also establish limits
in warfare. Notable examples include the 1925 Gas Protocol, the 1980 Certain Conventional Weapons
Convention and the Ottawa Convention on Antipersonnel Landmines. We will be looking at their content in the
chapters where they are most relevant.

3.1.4 Sources of IHL: Customary law

Customary law, under which international practice can create a binding precedent, is a central source in IHL. In
fact, Hague II was an effort to codify existing customary rules, and as we’ve seen, the Hague Conventions have
become part of customary law and parts of the Geneva Conventions have followed the same fate. Other
customary rules that have no equivalent in positive law serve to complement it. The advantage of a rule having a
dual existence as both a treaty and a customary norm means that it are parameters of combat even for non-state
parties and can be invoked before courts even if they don’t have the jurisdiction to adjudicate on the treaty that
reflects them (for example, you might remember that due to US reservations the ICJ could not adjudicate on the
law of self-defense in the UN Charter in the Nicaragua case, but it could refer to self-defense as it held an
independent existence under customary law).
Customary law has also allowed courts to extend the provisions of international armed conflicts to non-
international conflicts by finding that their provisions are applicable under any circumstance. When studying for
this part of the course, you will be able to see how courts frequently refer to customary rules in order to reach a
decision.

3.1.5 Sources of IHL: Judicial decisions and teachings of publicists

Article 38 of the Statute of the International Court of Justice is widely regarded as the most authoritative list of
the sources of international law. Paragraph (1)(d) establishes that judicial decisions of both international and
national courts are ‘subsidiary means for the determination of rules of law’. This means that when other sources
are not clear, decision-makers can refer to judicial decisions to determine the applicable law for a particular
case. For instance, although the decisions of the ICJ are only binding upon parties to a particular dispute, it is
widely established that they create a precedent for other nations. Several decisions of the ICJ will therefore
feature prominently in this and other sections.
The decisions of other international tribunals, such as the Nuremberg, Tokyo, Rwanda and Yugoslavia tribunals
as well as the International Criminal Court also serve as central sources for determining the legality of certain
actions during armed conflict and for establishing the limits and contents of customary law. Lastly, in the

27
context of ius in bello, special attention is paid to national courts. As you will see over the coming chapters,
national courts have been one of the main methods of enforcing IHL by applying its norms when judging POWs
and war criminals. Although their interpretation of a particular norm cannot bind third parties, the decisions of
tribunals can often be adopted by other states or even be considered as reflecting customary law.
Activity: Find three cases where national courts have established case law when judging POWs.

3.1.6 Sources of IHL: Martens clause

The provision contained in the Martens clause was intended to guide decision making in those situations where
positive rules of international law had not been fully developed. It is intended to prevent the existence of a
lacuna in the law and provides that:
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare
that in cases not included in the Regulations adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as they result from the usages established between
civilized nations, from the laws of humanity and the requirements of the public conscience. (Convention (II)
with Respect to the Laws and Cutoms of War on Land. The Hague (July 1899), Preamble).
This clause appears in the preambular provisions of a number of conventions including the Geneva Conventions
and the Convention on Certain Conventional Weapons, among many other sources. Its purpose is to prevent any
lacunae in ius in bello by establishing that, in the words of Meron, cases not provided for in the Convention
"should [not] for want of a written provision be left to the arbitrary judgment of the military commanders"' and
its principles are present throughout IHL, influencing, for example, the scope of Common Article III. Over time,
it has come to have an independent existence outside treaty law, which is evidenced by Article 63 of Geneva
Convention I, which notes that even if a party withdraws from the Convention it is still bound by these
considerations. The ICRC, in its Commentary on this article, notes that
Vague and self-evident as it undoubtedly is, such a clause is nevertheless useful, as it reaffirms the value and
permanence of the lofty principles underlying the Convention. These principles exist independently of the
Convention and are not limited to the field covered by it. The clause shows clearly, as we have said above, that a
Power which denounced the Convention would nevertheless remain bound by the principles contained in it
insofar as they are the expression of inalienable and universal rules of customary international law.
The three parameters of the Martens clause, namely ‘usages established between civilized nations’, the ‘laws of
humanity’ and the ‘dictates of public conscience’, call for some explanation:
Applying the Martens clause
The term ‘usages established between civilized nations’ is a reference to customary law, a source covered in
Chapter 2. The last two concepts, however, have distinct meanings, and are interrelated, as Meron explains.
The ‘laws of humanity’, also known as the ‘elementary considerations of humanity’ clause has a long standing
in international law, having been invoked by the arbitral panel in the Naulilaa case (Responsibility of Germany
for damage caused in the Portuguese Colonies in South Africa (Merits) (1928) Portugal, Germany Arbitrators:
de Meuron, Fazy, Guex (Switzerland) Reports of International Arbitral Awards, Vol. II, p. 1011), and by the ICJ
in the Corfu (Corfu Channel Case (United Kingdom v. Albania); Merits, 9 April 1949) and Nicaragua (Case
Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America); Merits, International Court of Justice (ICJ), 27 June 1986) cases. Although a common and
uncontested definition has not been formulated, it generally refers to a source of international law that derives
not from positive or customary law but rather from the nature of humanity itself. As such, it is rooted in natural
law. Its purpose is to show that beyond positive law there are minimum and essential rules that cannot be
limited under any circumstance.
The ‘dictates of public conscience’, on the other hand, refer to the opinion of humanity, a concept that covers
both the opinion of humanity as expressed by states and in some ways public opinion as well. As Meron notes,
it is therefore heavily linked to the opinio iuris element of customary law. Yet it is also permeated by the human
rights regime, which has largely become the standard for ascertaining whether an act not covered by “the law in
force” (i.e. ius in bello) is legal. We will delve into this issue later in this chapter.
The cumulative effect of the Martens clause is clear: when the written law includes no rules regarding the
protection of combatants or civilians, other sources also serve to analyze the legality of the manner in which
armed conflict is conducted.

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3.1.7 Sources of IHL: The International Committee of the Red Cross
Although the ICRC’s commentaries on legal provisions are not formally a source of ius in bello, it is widely
understood that they carry the full weight of its office. Due to its work in the protection of vulnerable
individuals during armed conflict and in the promotion of compliance with ius in bello, its opinion has become a
central reference for interpreting IHL.
The ICRC is a humanitarian institution based in Geneva, created in the 19 th century with the purpose of
diminishing human suffering during armed conflict. Over time, independent national branches were created in
other countries with the same purpose and sharing a high degree of coordination. Its influence was crucial in
persuading the Swiss Government to host the conference that would lead to the First Geneva Convention of
1864 and due to its continued work it has been given extraordinary faculties under other conventions. Most
notably, the IRCR has frequently acted as a Protecting Power to ensure that parties respect the provisions of ius
in bello regarding the treatment of civilians and especially prisoners of war. We will see what these faculties
imply in Chapter 5.
Consequently, the ICRC often assists states in making sure their soldiers are familiar with the laws of war and
on its own also calls on parties to hostilities to respect applicable rules. It is able to perform this function as it
remains neutral in armed conflicts and offers impartial assistance to all belligerents. The ICRC is also a central
resource on the laws of war due to its persistent efforts to produce research, commentaries and analysis on the
laws of war, including assessing customary law. Given the the authority of the ICRC in this field, we will be
referring to its work frequently in the following chapters.
Activity: Find two examples of functions assigned to the ICRC by the Geneva Conventions or its Protocols.

3.1.8 The Relation Between IHL and IHRL

International Human Rights Law is an area of international law that emerged in the 20 th century and is based on
the assumption that, due to the very fact of being human, every person has certain rights that are inherent to
his/her nature. The height of the human rights project emerged in the wake of WWII, when the atrocities that led
to a reformulation of the laws of war also led to the creation of the human rights regime.
Prior to the 20th century, scholars divided international law into the law of war and the law of peace, which
meant that the outbreak of war necessarily ensured that the laws that governed society and the international
arena during peace were no longer in effect until peace was reestablished. This same logic also governed the
international arena during the World Wars but has been slowly abandoned since the promulgation of the 1948
Universal Declaration of Human Rights, the 1968 International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights.
The ICCPR establishes in Article 4 that even though a situation of armed conflict could understandably lead to
limitations of human rights, some minimum guarantees are absolute and are applicable even during armed
conflict. The application of the rule of lex specialis, however, means that ius in bello is applied preferentially.
Thus human rights persist during war but the real issue becomes defining the boundaries and applicability of
particular rights during conflict.
The relationship between human rights law and humanitarian law was considered by the international criminal
tribunal for Yugoslavia (ICTY) in the Kunarac Judgment. It said that:
Firstly, the role and position of the state as an actor is completely different in both regimes. Human rights law is
essentially born out of the abuses of the state over its citizens and out of the need to protect the latter from state-
organized or state sponsored violence. Humanitarian law aims at placing restraints on the conduct of warfare so
as to diminish its effects on the victims of the hostilities.
…Moreover, international humanitarian law purports to apply equally to and expressly bind all parties to the
armed conflict whereas, in contrast, human rights law generally applies only to one party, namely the state
involved, and its agents (Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic. (Appeals
Chamber) [2002] 706 at para 470).
This situation, which troubled authors and legislators, was dealt with by the ICJ in the Nuclear Weapons
opinion:
The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except
by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of

29
national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not
arbitrarily be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed
conflict which is designed to regulate the conduct of hostilities (Nuclear Weapons case, para. 25).
The Court takes this argument further in the Wall opinion:
106. More generally, the Court considers that the protection offered by human rights conventions does not cease
in cases of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article
4 of the International Covenant on Civil and Political Rights. As regards the relationship between international
humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively
matters of international humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law. In order to answer the question put to it, the Court
will have to take into consideration both these branches of international law, namely human rights law and, as
lex specialis, international humanitarian law (The Palestinian Wall case, para. 106).
Reading these two paragraphs together, a rule of thumb emerges: In a situation of conflict, ius in bello is applied
as lex specialis and non-derogable human rights provisions are interpreted through the scope of IHL (as in the
case of Article 4). However, if ius in bello contains no applicable law (non liquet), this lacuna is solved by
referring to applicable rules contained in IHRL.
The following commentary by Christopher Greenwood on the relationship between human rights and
humanitarian law in the specific context of the advisory opinion is particularly apt:
Those states which maintained that the use of nuclear weapons was unlawful relied however not only upon
those bodies of law which they placed a different interpretation but also, and quite independently, upon the law
of human rights and environmental law. Such arguments were controversial for two very different reasons. First,
the idea that principles of human rights and environmental law, designed for application in times of peace,
might also be applicable in times of war and might impose restraints which went beyond those of lex specialis,
that is the law on the conduct of hostilities, runs counter to the traditional conception of international laws
containing an entirely separate body of law on the conduct of warfare. Secondly, even if international law was
no longer to be seen as a series of watertight compartments, the provisions of human rights law and
environmental law... were some states suggested couched in very broad general terms and were some states
suggested ill suited to being applied to the regulation of a question which states had always declined to address
in treaties specifically concerned with the conduct of hostilities.
With respect to the law of human rights, some states submitted that any use of nuclear weapons would violate
the right to life in Article 6 of the International Covenant on Civil and Political Rights, which provides that
‘Every human being has the inherent right to life. This right shall be protected by law. No one shall arbitrarily
be deprived of his life’
The problem with this argument is that, even if one accepts that the provisions of the Covenant apply in time of
armed conflict , the application of Article 6 in such circumstances must take account of the fact that the taking
of life is an inescapable feature of warfare and Article 6 cannot have been intended to outlaw all military action
(even if undertaken in self –defence) Article 6 prohibits only the arbitrary taking of life and it is implicit that
not all taking of life in an armed conflict is arbitrary. In seeking to determine which acts of taking of life in
armed conflict should be regarded aas arbitrary and which should not, the only objective standards to which
reference can be made are those of the law of armed conflict (the jus in bello) which was specifically designed
to regulate that very issue. On that basis, the use of a weapon to take life in armed conflict would amount to an
arbitrary deprivation of life only if it was contrary to the jus in bello. The travaux preparatoires of Article 6
suggest that this was the meaning which which the term arbitrary was intended to bear, since killing in the
course of a ‘lawful act of war’ was given as an example of a taking of life which would be arbitrary. If that
interpretation is correct, then the the provisions of Article 6 add nothing of substance to the law of armed
conflict and cannot provide an independent ground for holding the use of nuclear weapons to be illegal
(Christopher Greenwood, Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion.
International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University
Press, 1999) p. 252-253).
Referring specifically to the Court’s judgment in the Nuclear Weapon’s Case, Greenwood observes that the
finding on the continuing relevance of human rights cases may be significant because, ‘…although the right to
life may add nothing to international humanitarian law, other provisions of human rights treaties go beyond

30
anything in either the customary law or conventional law of armed conflict. Moreover, at the procedural
level,human rights treaties contain unique mechanisms for enforcement which may be of great assistance. The
continued applicability of human rights treaties in armed conflict is likely to be of particular significance in the
context of belligerent occupation’ (Christopher Greenwood, The Advisory Opinion on Nuclear Weapons and the
Contribution of the International Court to International Humanitarian Law. International Review of the Red
Cross. Vol. 316 No. 65 (1997) <https://www.icrc.org/eng/resources/documents/misc/57jnfp.htm>).

Activity: Find three human rights (other than the right to life) that can ordinarily be affected by armed conflict.

Fundamental Principles of International Humanitarian Law

1. Equal Application
Once hostilities break out, the rules of humanitarian law apply to both sides in the conflict without
distinguishing between the aggressor and the victim. This fundamental principle is restated in the preamble to
Additional Protocol I of 1977:
‘The provisions of the Geneva Convention of 12 August 1949 and of this Protocol must be fully applied in all
circumstances to all persons who are protected by those instruments, without any adverse distinction based on
the nature or origin of the armed conflict or on the causes espoused or attributed to the parties to the conflict’
(Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) (June 1977) Preamble).
Why should the victim and aggressor be treated equally? Quoting Lauterpacht, Christopher Greenwood has
suggested that there are fundamental reasons of principle why this rule should stand. He writes that:
The reasons for the continued validity of the principle of equal application of the ius in bello were set out 30
years ago by Sir Hersch Lauterpacht. Lauterpacht advanced three main arguments. First, he recognised that,
notwithstanding the development of ius ad bellum, wars would continue to occur, and maintained that the equal
application of the rules of ius in bello, which were, for the most part, humanitarian in character, was essential if
warfare was not to become even more savage than it already was. He insisted that:
…impossible to visualize the conduct of hostilities in which one side would be bound by rules of warfare
without benefitting from them and the other side would benefit from them without being bound by them’
Secondly, he emphasised the difficulty inherent in trying to apply the ius in bello in a away which discriminated
against an aggressor in the absence of an authoritative determination of which party was guilty of aggression.
This problem has, if anything, grown since Lauterpacht wrote, for it appears now to be the established practice
of the Security Council to avoid any attempt at identifying an aggressor and instead to concentrate on attempts
to secure a cessation of hostilities. Lastly Lauterpacht reviewed judicial practice in the aftermath of the Second
World War and concluded that the overwhelming majority of decisions supported the principle of equal
application of the laws of warfare. Thus the United States Military Tribunal in the Hostages Case (United States
V List, et al) rejected a prosecution argument that since the German invasion invasion of Yugoslavia and Greece
had been contrary to the Kellog-Briand pact every act of the German occupation authorities in the Balkans was
illegal. The tribunal held that the law of belligerent occupation applied to all occupations, whether or not they
were effected in contravention of the ius ad bellum. List and the other defendants were therefore convicted of
war crimes only in respect of acts which were contrary to the laws defining the powers of the belligerent
occupant. A similar approach was adopted by the military tribunals and several national courts, both in Europe
and the Far East, in numerous other cases….
As far as the duties of belligerents are concerned, the logical case which has just been expounded is not a strong
one. There are obvious humanitarian reasons for holding that a state which uses force in violation of ius ad
bellum must nevertheless observe the rules of ius in bello. The only logical objection which might be raised is
that since such a state is, in any event, already violating international law, there is nothing to be gained from
imposing upon it a further set of duties , as failure in these duties will merely involve it in a double illegality.
There is no real force in this argument, because, as will be seen later, the consequences of ius ad bellum permits
a state which is the victim of aggression to use only such force as is reasonable and proportionate in self-
defence. It is difficult to see how any use of force which violates the humanitarian rules of ius in bello, for
example those rules prohibiting the use of weapons likely to cause unnecessary suffering or rules governing
humane treatment of prisoners of war, can be regarded as reasonable measures of self-defence. The only
possible exception is in the case of an aggressor who is himself violating these rules, as well as violating the ius
ad bellum. In this case, international law still leaves the victim a limited scope for reprisals (although these may
not be directed against prisoners of war or other protected persons). It is important to note that such reprisals are
lawful because the other state has violated ius in bello not because its use of force is a breach of the ius ad

31
bellum. Thus, the British Orders in Council of 1939-40 extending the scope of the blockade of Germany were
stated to be reprisals for German violation of the laws of naval warfare and were not based on the argument that
Germany had broken the ius bellum before starting the war” (Christopher Greenwood, Essays on War in
International Law (London: Cameron May, 2006) p. 22).
2. Reciprocity
The rules of humanitarian law only bind those states that accepted the treaty commitments contained in those
instruments. For instance, in the Gulf war of 1991 some of the coalition states had ratified Protocol I (Italy,
Canada and Saudi Arabia) but they were not obliged to apply its provisions as the other parties to the conflict
had not ratified the Protocol. This may be contrasted with obligations contained in human rights instruments
which create binding obligations for the signatory states, in relation to all persons in their jurisdiction, even if
they are foreign nationals from a state that has not accepted the treaty obligations. However once it is
established that a particular treaty provision is in force, the parties are bound to apply its provisions even if the
opponent has reneged or failed to apply its provisions. Thus according to Rule 140 of the ICRC: The obligation
to respect and ensure respect for international humanitarian law does not depend on reciprocity.
The ICRC commentary goes on to add that ‘the rule that international humanitarian law must be respected even
if the adversary does not do so is set forth in military manuals, some of which are applicable in non-international
armed conflicts. Some military manuals explain that the practical utility of respecting the law is that it
encourages the adversary to do the same, but they do not thereby imply that respect is subject to reciprocity. The
Special Court of Cassation in the Netherlands in the Rauter case of 1948 and the US Military tribunal at
Nuremberg in the Von Leeb (The High Command Trial) Case in 1947-48 rejected the argument by the
defendants that they were released from their obligation to respect international humanitarian law because the
adversary had violated it. This rule is also supported by official statements.
The International Court of Justice in the Namibia Case of 1971, and the International Criminal Tribunal in its
review of its indictment in the Martic Case of 1996 and its judgment in the Kupreskic Case of 2000, both stated
that it was a general principle of law that legal obligations of a humanitarian nature could not be dependant on
reciprocity. These statements and the context in which they were made make it clear that this principle is valid
for any obligation of a humanitarian nature, whether in international or non-international armed conflicts (Jean-
Marie Henckarets & Louise Doswald-Beck, Customary International Humanitarian Law. Vol. 1 (Cambridge:
Cambridge University Press, 2009) p. 498-499
Fleck further emphasises that:
…the fact that one side in a conflict violates humanitarian law does not justify its adversary disregarding the
law. Moreover, it is not necessary today that all states involved in a conflict must be parties to a particular
humanitarian treaty for that treaty to apply in the conflict. If there are states on both sides of the conflict which
have become parties to a particular humanitarian treaty, the treaty is applicable between them, even though it
does not bind them in their relations with those states which have not become parties. In this respect,
humanitarian law has changed since the beginning of the 20th century, for the older humanitarian law treaties
contained what was known as a ‘general participation clause’ under which a treaty would apply in a war only if
the belligerents were parties to that treaty (Fleck (2010) p. 12).
3. IHL regulates both the relationship between belligerent states but also their relationship with neutral
states.
Fleck notes that ICRC Rule 103 provides:
International humanitarian law sets certain bounds to the use of force against an adversary. It determines both
the relationship of the parties to a conflict with one another and their relationship with neutral states. Certain
provisions of international humanitarian law are applicable in the relationship between a state and its own
citizens.
He goes on to provide the following commentary to the rule:
Humanitarian law sets limits to the way in which force may be used by prohibiting certain weapons (such as
poison gas) and methods of warfare (such as indiscriminate attacks), by insisting that attacks be directed only at
military objectives, and even then that they should not cause disproportionate civilian casualties. It also
regulates the treatment of persons who are hors de combat: the wounded, sick, shipwrecked, persons
parachuting from a disabled aircraft, prisoners of war, and civilian internees, as well as the enemy’s civilian
population. Although primarily concerned with the relationship between the parties to a conflict, a distinct
branch of the laws of armed conflict, the law of neutrality, regulates the relationship between the belligerents
and states not involved in the conflict. Unlike the rules dealing with the relationship between the parties to a

32
conflict, the law of neutrality has not been the subject of much codification and still consists largely of
customary international law (Fleck (2010) p. 14).
4. IHL is primarily concerned with the treatment of the nationals of an adversary and those of third
States during an armed conflict. In general, it is not concerned with a state’s treatment of its own
nationals.
Fleck in commentary again provides that:
For the most part, humanitarian law does not attempt to regulate a State’s treatment of its own citizens. Thus it
has been held, for example, that a national of one party to a conflict who serves in the armed forces of an
adversary against his own state is not entitled to be treated as a prisoner of war if captured, although this
decision has been criticised and is probably untenable in a case where nationality has been forced upon the
person concerned (e.g. as a result of the annexation of the territory in which he resides) and perhaps where large
numbers of people have taken up arms against the state of their nationality. There are, however, some provisions
of humanitarian law which are expressly intended to apply to the relationship between a state and its own
citizens. Article 3 of the four Geneva Conventions and APII each lay down a legal regime for civil wars and
internal armed conflicts. In addition, some provisions of the Geneva Conventions and API require a state to take
positive steps in relation to its own citizens by, for example, ensuring that members of its armed forces receive
instructions in international humanitarian law or encouraging the dissemination of the principles of that law
amongst the civilian population. A state is also required to take steps to prevent its citizens from violating
provisions of humanitarian law and must, for example, take action to prevent or prosecute grave breaches of that
law by its nationals (Fleck (2010), p. 103)

3.1.9 Overview of the contemporary sources of ius in bello

IHL is a complex normative system that, although largely organized and self-sufficient, contains many nuances
that require context-specific interpretation and in many cases depends on references to other areas of
international law, such as ICL and IHRL.
Treaty Sources specifically the Hague Conventions of 1899 and 1907
The Geneva Conventions 1864, 1949 and 1977
1868 Declaration of St. Petersburg
1925 Gas Protocol
1993 Convention on Chemical Weapons
Ottawa land mines Convention
State practice as contained in Military manuals (Lieber code)
Principles of humanity and dictates of public conscience (such as the Martens clause)

Reminder of learning outcomes

Upon completion of this section you should:
Understand the evolution of ius in bello; and
Have a firm grasp of its main sources

QUESTIONS
1. To what extent does the law of war (ius in bello) affect the liberties of states in conducting warfare?
2. When a treaty rule and a customary rule regulate a same topic and establish different obligations, how
is this conflict resolved?
3. During combat operations in Hobyo, troops deployed by Aussa demolish houses in a margin of 200
meters around a central road to prevent them from being used to attack its convoys, a tactic that has cost it
several hundred soldiers during its occupation. The International Covenant on Economic, Social and Cultural
Rights, on the other hand, has been ratified by both states and establishes the right to housing. What are the
pertinent considerations in this case? Is this conduct legal?

33
Chapter 4: The Concept and Classifications of Armed
Conflict

Introduction
As we saw in the previous chapter, in order to define the applicable law in ius in bello it is essential to determine
whether an armed conflict actually exists, and whether it is national or international in nature. In this chapter we
will be looking at the elements of an armed conflict and the implications each category entails.

Basic reading
Dieter Fleck, The Handbook of International Humanitarian Law. (New York City: Oxford University
Press, 2008) Chaper 2.
Green, Chapters I, III and IV
Arnold Duncan McNair and Baron Watts, The Legal Effects of War (Cambridge: Cambridge
University Press, 1966) Chapter I.
Yoram Dinstein, War, Aggression and Self-Defence. (Cambridge: Cambridge University Press, 2011)
Part I, Chapter I.
Lindsay Moir, The Law of Internal Armed Conflict. Cambridge Studies in International Comparative
Law. (Cambridge: Cambridge University Press, 2002) Chapter 2.

Further reading
* Christopher Greenwood, The Concept of War in Modern International Law. International and
Comparative Law Quarterly. Vol. 36 No. 2. (1987) p. 283-306.
Christopher Greenwood, International Humanitarian Law and the Tadić Case. European Journal of
International Law. Vol. 7 No. 2 (1996) p. 265-283.
* Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout.
American Journal of International Law. Vol. 92 Vol. 2. (1998) p. 236- 242.
Christine Byron, Armed Conflicts: International or Non-international? Journal of Conflict and Security
Law Vol. 6 No. 1 (2001) p. 63-90.
Christine Gray, Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterisation and
Consequences. British Yearbook of International Law. Vol. 67 No. 1 (1996) p. 155-197.
* Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions
and Protocols. Collected Courses of the Hague Academy of International Law. Vol. 163 (1979) p. 125-156.
* International Committee of the Red Cross. Typology of Armed Conflicts. International Review of the
Red Cross. No. 873 (2009). <https://www.icrc.org/eng/resources/international-review/review-873-typology-
conflicts/index.jsp>
Yoram Dinstein, Non-International Armed Conflicts in International Law. (Cambridge: Cambridge
University Press, 2014).
Adam Roberts, The Equal Application of the Laws of War: a Principle Under Pressure. International
Review of the Red Cross. Vol. 90 No. 872 (2008) p. 931-962.
Mohamed Benouna, The Characterisation of the Armed Conflicts in the Practice of the ICTY. Essays
on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald. (The Hague and London, 2001) p.
55-64.

Cases:
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A)
(Merits) [1986] ICJ Rep. 14. p.14, in particular paras. 113-116.

34
 International Criminal Tribunal for the former Yugoslavia. Prosecutor v. Dusko Tadic aka ‘Dule’
(Opinion and Judgment) [1997] IT-94-1-T. Particularly paras. 109-145.
Council of the European Union. Independent Fact Finding Mission Report on the Conflict in Georgia.
Vol. II (2009) particularly para. on classification of the conflict and applicable law, p. 298.

Learning outcomes
By the end of this chapter you should be able to discuss:
The justifications for and arguments against the use of force for humanitarian purposes
The elements that constitute an armed conflict
The differences between an international and a non-international armed conflict
The doctrinal and practical issues surrounding the classification of conflicts
The content and importance of Common Article 3 of the Geneva Conventions

4.1 When Does an Armed Conflict Exist?

The rise of a truly global order at the end of the 19 th century created a need for determining when war existed
and how this affected both warring and neutral states. As a response, states began to issue formal declarations of
war to avoid confusion. This practice was enshrined in Hague III (1908), which established in Article 1 that:
The contracting Powers recognize that hostilities between themselves must not commence without previous and
explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with conditional
declaration of war (International Conferences (The Hague). Hague Convention (IV) Respecting the Laws and
Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land. 18
October 1907).
As Fleck notes, however, this formality has largely gone into disuse in international relations and is one of the
dispositions of the Hague Conventions that is no longer in effect. In modern law, the commencement of armed
conflict is not a formal but rather a material issue. Likewise, most commentators agree that an armed conflict
ends once hostilities have ceased and have not been resumed in a long period of time. In relation to a non-
international armed conflict, Dinstein has observed that it too ‘need not linger inconclusively. It may come to
an unequivocal end in several basic scenarios:
1) The insurgents are roundly beaten and the incumbent Government finds itself securely in the saddle;
2) The insurgent cause triumphs, bringing about one of the following outcomes:
(a) The incumbent is dismantled;
(b) The territorial integrity of the country is impaired by secession, preceded perhaps by interim measures
(e.. international territorial administration);
(c) Regional autonomy is introduced; or
(d) Other mechanisms of structural reform in the way the country is run are adopted.
3) A compromise scheme between the conflicting positions of the parties to the NIAC is agreed upon and
implemented (An agreement by itself may be the light of a false dawn, so it is implementation that ultimately
counts);
4) The incumbent Government crumbles but the result is endemic chaos leading to a ‘failing state’
imbroglio; or
5) The NIAC evolves into an IAC. (Yoram Dinstein, Non-International Armed Conflicts in International
Law. (Cambridge: Cambridge University Press, 2014) p. 48-49).

4.2 International Armed Conflicts

International armed conflicts are generally considered to occur when one state uses force against another state.
Common Article 2 of the Geneva Conventions 1949 establishes a material base for the existence of an
international armed conflict, which also covers military occupation:

35
“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to
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.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties
thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in
relation to the said Power, if the latter accepts and applies the provisions thereof” (International Committee of
the Red Cross. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (Geneva Convention I) (August 1949) Article 2).
In practice the existence of an armed conflict or otherwise is not particularly problematic. However, in order for
GC IV to apply, it is necessary to define exactly what an armed conflict is. The ICRC’s Commentary on this
article states,
“This paragraph is entirely new. It fills the gap left in the earlier Conventions and deprives the belligerents of
the pretexts they might in theory invoke for evasion of their obligations. There is no longer any need for a
formal declaration of war, or for recognition of the state of war, as preliminaries to the application of the
Convention. The Convention becomes applicable as from the actual opening of hostilities. The existence of
armed conflict between two or more Contracting Parties brings it automatically into operation.
It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression
for the word "war" was deliberate. One may argue almost endlessly about the legal definition of "war". A State
can always pretend, when it commits a hostile act against another State, that it is not making war, but merely
engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such
arguments less easy. Any difference arising between two States and leading to the intervention of armed forces
is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of
war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to
human personality is not measured by the number of victims. Nor, incidentally, does the application of the
Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances. If
there is only a single wounded person as a result of the conflict, the Convention will have been applied as soon
as he has been collected and tended, the provisions of Article 12 observed in his case, and his identity notified to
the Power on which he depends (International Committee of the Red Cross. Commentary on Article 2 Chapter
1: General Provisions.<https://www.icrc.org/ihl/COM/365-570005?OpenDocument>).
This, however, should be interpreted carefully. You will recall from Part I of this course that there are hostile
actions and uses of force short of war which do not constitute an armed attack as they do not have the necessary
gravity (‘not sufficiently serious’). The purpose of this distinction is precisely to avoid small and commonplace
situations, like border skirmishes, and hostile actions, such as supporting rebel troops, from leading to full-
blown war. The necessary interpretation of this provision, then, is that the application of Geneva rules is not
meant to qualify the conflict itself, but merely to provide a minimum set of common rules when force is used.
But this does not in itself answer the question of whether an international armed conflict exists.
Consider, for instance, the ICJ’s decision in Nicaragua. How does this concept apply to U.S. support to non-
state groups fighting against the Nicaraguan government, and how does the Court solve this issue? How do
Meron and Gray consider that this affected the Tadić decision?
Activity: Drawing from what you learned in Part I of this course, describe 3 situations where the use of force
between states does not imply a situation of armed conflict under ius ad bellum, but might entail the application
of the rules of ius in bello under Common Article 2.
The minimum elements that exist in an IAC are, obviously, the participation of two or more states, and a use of
force between them. Once this has occurred, ius in bello is in effect and its provisions are applied. However, in
practice this may be more difficult when the statehood of a party to a conflict is in question. Consider, for
instance, the Report of the IIFFM on the conflict in Georgia. Who are the parties to the conflict and how do they
relate to each other? How does the Mission resolve the issue of determining if Abkhazia was a state?
4.2.1 Wars against colonial domination, foreign occupation and
apartheid
Many of the wars fought after the promulgation of the Geneva Conventions were in the context of
decolonization. In these conflicts, armed groups within a colony sought to overthrow the colonial authorities
that held the territory as part of a larger, metropolitan state, which led to these struggle being characterized as

36
non-international armed conflicts. As a result, prior to the adoption of Additional Protocol I (API), the colonial
authorities were bound by the lesser standard of Common Article 3 of the Geneva Conventions (which we will
look at later in this chapter) instead of the Conventions as a whole.
API, however, explicitly stated in Article 2 that conflicts against ‘colonial domination and alien occupation and
against racist régimes in the exercise of their right of self-determination’ were international in nature, thus
making the whole of the Conventions and the Protocol itself applicable. This was more favorable to liberation
movements as, for example, their fighters were now lawful combatants which were to be given POW status
upon capture instead of being tried as criminals. Although coming near the end of the decolonization process,
this provision of API served to extend the applicability of these rules to its conflicts and to elevate the status of
liberation movements.
In relation to international armed conflicts, Lindsay Moir has observed that these have in general not caused any
problems. He notes that, ‘...although there may be no agreement as to what constitutes an armed conflict, states
generally recognize one when they see it. A detailed definition is not absolutely essential to realize that when
troops of different states are engaged in combat, then an armed conflict is in progress. This is not to dispute that
there are obviously some situations (e.g. low intensity border incidents) where it is difficult to say for certain
whether an armed conflict is in progress or not. The point is simply that except at very low levels, it is not
normally a problem to determine whether an international armed conflict exists’ (Lindsay Moir, The Law of
Internal Armed Conflict. Cambridge Studies in International Comparative Law. (Cambridge: Cambridge
University Press, 2002) p. 33).
Activity: Find two examples of situations where the application of API was invoked.
4.2.2 Equal application
One of the central links between ius ad bellum and ius in bello is the principle of equal application, contained in
Articles 1 and 2 of the Geneva Conventions and the Preamble of API. This means that the rules of IHL are
applied equally to all the parties to an international conflict, whether instigator or victim of attack. The object
and purpose of this uniform protection is to ensure that combatants and civilians are not penalized for
wrongdoing on the part of their state nor afforded lesser protection on account of their nationality.
However, states and theorists have often called for greater latitude in applying the laws of war in situations
where they believe they have a legitimate cause, such as when participating in multilateral peacekeeping
missions for the UN Security Council or defending themselves from aggression. In some instances, countries
that deploy their troops in other states to enforce ceasefires or provide training have conducted Status of Forces
Agreements (SOFAs) with the host state to grant their forces immunity from prosecution.
Likewise, the ICJ’s controversial decision in the Nuclear Weapons decision - that in an extreme case of self-
defence a state may be entitled to use nuclear weapons - raises the possibility of legitimizing a method of
warfare that is not in conformity with the law of war (jus in bello). The controversial reasoning was that in these
exceptional circumstances, a right of self-defence under jus ad bellum trumps any humanitarian considerations
under jus in bello. It will be recalled that the court had raised the spectre of using nuclear weapons in an extreme
case of self-defence where the very survival of a state was at stake. The question becomes whether the court was
suggesting that in the application of humanitarian law, the rights of the victim will invariably trump those of the
aggressor.
4.2.3 Third states
Third states are those which are not Parties to the IAC. As the provisions of ius in bello deal primarily with the
conduct of hostilities between warring parties, most provisions are not applicable to third states. However,
several provisions are.
Hague Convention V and XIII (1907) as well as several provisions of the Geneva Conventions, for instance,
establish the duty of neutrality, that is, the obligation of non-interference of third states in an armed conflict.
This includes dual obligations where the neutral state is prohibited from providing military support to the parties
while the warring parties must respect the neutral powers’ nationals, territories and assets. In practice, neutrality
is often considered to be tacitly derogated as it is not usually respected or enforced.

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Activity: Find three examples of third states supporting (without Security Council authorization) one of the
parties in an international conflict.
Specific provisions establish other forms of participation by neutral powers if agreed to by the Parties to the
conflict. They may, for instance, be designated as Protecting Powers, with the specific mandate to protect the
interests of the appointing party during the conflict - for instance by inspecting places of detention and the
general well-being of prisoners of war (GC III). In any case, third states to an armed conflict but who are parties
to the Geneva Conventions have a general duty to “respect and ensure respect” for the provisions of the Geneva
Conventions in all circumstances. The role of third states in facilitating compliance with the provisions of the
Geneva Convention will be considered in Chapter 5.

4.3 Non-international Armed Conflicts

Unlike IACs, NIACs are more difficult to define, and are less regulated as they are still considered to be internal
affairs to a large – but decreasing – extent. However, ius in bello can and does regulate the conduct of hostilities
during NIACs, which we will be looking at in Chapter 9.
NIACs can generally be said to occur when there is a situation of armed conflict between a state and an armed
non-state actor or between two non-state actors within a state’s territory. Yet pinpointing each of these elements
comes with its own complications. Firstly, there are several different definitions often used to determine the
existence of NIACs. The three main standards used are those of Common Article 3, Additional Protocol I and
the provisions of the ICTY’s decision in the Tadić case.
The difficulties involved in ascertaining whether a non-international armed conflict exists or not have been
poignantly discussed by Lindsay Moir.
“The situation is markedly different in that the position within a State is not analogous to its international
relations. It is clearly unusual for a state to employ force in its relations with other states. In contrast, force is
frequently used within a state’s own territory and against its own citizens, ranging from everyday enforcement
action against common criminals to large-scale operations aimed at quelling riots or other civil disturbances. In
an environment such as this, where force is a constant factor, it is necessarily more difficult to determine when
an armed conflict has come into being. Given the political factors involved and Common Article 3’s silence
regarding the party responsible for determining the existence or otherwise of an armed conflict (and indeed the
method by which this determination is to be made), decisions on the issue will inevitably be made by the state
itself. Naturally reluctant to bind themselves to rules which could be perceived as favouring political opponents,
States often hide behind this lack of definition, preventing the application of humanitarian law by denying the
very existence of an armed conflict.
This is clearly unsatisfactory from a humanitarian standpoint and it seems desirable to employ some objective
method to make it clear when an Article 3 conflict is in existence, rather than to leave the matter in the hands of
national governments and their instincts for self-preservation (Moir (2002) p. 34).
What criteria then might be employed in defining an non-international armed conflict? Drawing on the
diplomatic conferences that preceded Article 3 of the 1949 Geneva Convetions, Pictet offers the following
criteria:
(1) That the party in revolt against the de jure government possesses an organized military force, an
authority responsible for its acts, acting within a determinate territory and having the means of respecting and
ensuring respect for the convention;
(2) That the legal government is obliged to have recourse to the regular military forces against insurgents
organized as military and in possession of a part of the national territory;
(3) (a) That the de jure government has recognized the insurgents as belligerents; or
(b) That it has claimed for itself the rights of a belligerent; or
(c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present
convention; or
(d) That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the
United Nations as being a threat to international peace or breach of the peace or an act aggression.
(4) (a) That the insurgents have an organization purporting to have the characteristics of a state;
(b) That the insurgents civil authority exercises de facto authority over persons within a determinate territory;

38
(c) That the armed forces act under the direction of the organized civil authority and are prepared to observe the
ordinary laws of war;
(d) That the insurgent civil authority agrees to be bound by the provisions of the convention (Jean Pictet,
Commentary on the Geneva Conventions of 12 August 1949. International Committee of the Red Cross. Vol. I
(1952) p, 49-50).
Activity: Find 5 examples of current NIACs.
4.3.1 Common Article 3
The earliest regulation for NIACs is Common Article 3 of the Geneva Conventions:
In the case of armed conflict not of an international character occurring in the territory of one of the High
Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their
arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to
the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or
part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict
(International Committee of the Red Cross. Geneva Convention Relative to the Protection of Civilian Persons in
Time of War (Geneva Convention IV) (August 1949) Article 3).
These standards are often referred to as a ‘Convention in miniature’ as they establish a long list of minimum
obligations to be respected by all parties to a NIAC. Considering what you learned in Chapter I, other than CA3
and APII, which other international norms protect against the actions proscribed by this Article during NIACs?
Some theorists and the ICRC affirm that CA3 does not establish the characteristics that non-state armed groups
should have in order to be considered parties to a NIAC instead of, for example, regular criminal organizations.
Since CA3 seeks to establish a minimum set of rules, its application to armed groups that might not be
considered parties to a conflict would not be a disadvantage. The ICRC notes that
“[…] the Article should be applied as widely as possible. There can be no reason against this. For, contrary to
what may have been thought, the Article in its reduced form does not in any way limit the right of a State to put
down rebellion. Nor does it increase in the slightest the authority of the rebel party. It merely demands respect
for certain rules, which were already recognized as essential in all civilized countries, and enacted in the
municipal law of the States in question, long before the Convention was signed. What Government would dare
to claim before the world, in a case of civil disturbances which could justly be described as mere acts of
banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to inflict torture
and mutilations and to take hostages? However useful, therefore, the various conditions stated above may be,
they are not indispensable, since no Government can object to respecting, in its dealings with internal enemies,
whatever the nature of the conflict between it and them, a few essential rules which it in fact respects daily,
under its own laws, even when dealing with common criminals”.
The question of belligerency is often controversial as states are reluctant to treat armed insurgents as
counterparts since doing so may inadvertently grant them political legitimacy. Nonetheless, as the ICRC
concludes, CA3 has been considered a provision that seeks to establish minimum applicable standards without
making any distinction regarding the political status of the conflict.

39
However, this position is not uncontroversial. Authors have often noted that the text of the Article itself requires
that the non-state group is organized before the NIAC can be said to have come into effect. For example, Moir
notes
“It is widely accepted that a degree of organisation is required on the part of insurgents before an internal armed
conflict can be said to exist under common Article 3. This follows from the fact that the insurgents must be a
‘party’ to an armed conflict – a random group of looters and rioters is undoubtedly difficult to accept as being a
party to a serious conflict. General consensus would appear to support the proposition that, in order for
insurgents to be a ‘party’ to an internal armed conflict, the level of organisation required probably must be such
that they are capable of carrying out the various obligations imposed upon them by Article 3, which imposes
duties and obligations on all sides to the conflict. It is therefore difficult to accept that an armed conflict can
exist without the rebels being capable of observing these obligations. This, in turn, seems unlikely without the
insurgents being organised (at least to a degree) along military lines, including a responsible command structure
and controlling authority (Moir (2002) p. 36).
Which of the two positions do you find more convincing? Why? We will be looking at the issues in play in
Chapter 6.
4.3.2 Additional Protocol II
The Geneva Conventions of 1949 were supplemented by two Additional Protocols. Protocol I was concerned
with international armed conflicts and Protocol II applied exclusively to non-international armed conflicts. As
APII states:
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August
1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not
covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other 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 this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence and other acts of a similar nature, as not being armed conflicts (Protocol Additional to
the Geneva Conventions and relating to the Protection of Victims of Non International Armed Conflicts
(Additional Protocol II) (June 1977)).
As you can see, it establishes the specific elements to determine whether there is a NIAC that warrants its
application:
1. There is an armed conflict (armed and systematic confrontation of a large scale) between a State Party’s
armed forces and dissident armed forces or other organized armed groups;
2. The non-state forces are organized under responsible command, that is, have a clear hierarchical structure
able to control and direct its actions, and, especially, be able to control the behavior of individual combatants;
3. The non-state forces hold control over a territory of the State Party to such a degree that they can:
a) conduct organized military operations and
b) are able to respect the provisions of the Protocol.
The armed conflict to which protocol II applies must meet the threshold outlined therein. Thus its scope of
application may be narrower than those to which CA3 applies since CA3 contains a very loose definition of
non-international armed conflict and would conceivably apply to most conflicts. Taking all of this into account,
we may establish a relationship between the level of combat and organization of the non-state forces in the
ground to the norms that are applicable in NIACs:

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Tadić
The ICTY’s landmark decision in the Tadić case dealt with the issue of defining the applicability of Geneva
rules by establishing when a conflict existed. By this point, you will have studied it extensively during the first
part of this course. The Court included a broader definition of what an armed conflict is in the decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction:
“On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authorities and organized armed groups or
between such groups within a State. 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” (International Criminal
Tribunal for the former Yugoslavia. Prosecutor v. Dusko Tadic aka ‘Dule’ (Opinion and Judgment) [1997] para.
70)
The Tribunal’s interpretation seeks to offer a minimum set of elements to determine whether an armed conflict
exists. Like Common Article 3 and unlike APII, it also covers conflicts between non-state groups. It requires
organization from the armed group but its standards are much lower than that of APII. Therefore, the tribunal’s
interpretation is a mid-point between Common Article 3 and APII:
Dinstein has also offered the following five factors of organization which may determine the existence of an
armed conflict. He provides that:
“The first factor is the existence of a chain of command. Such structure can be displayed in diverse ways: the
setting uo of a headquarters; the emergence of a military hierarchy; the issuance of directives to commanders in
the field; the dissemination of internal regulations; the marshaling of weapon supplies, and so forth
The second factor relates mostly to capacities. Organisation is suggested by the capacity of the armed group to
devise strategy; to undertake large-scale military operations; to co-ordinate the activities of discrete units, etc A
further capacity –to control territory, to carry out sustained and concerted military operations and to implement
LONIAC…
The third factor pertains to the level of logistical abilities. An organized armed group will be able to recruit new
members ; to provide military training; to organize supplies; to establish communications linking headquarters
with units in the field, etc
The fourth factor brings to the forethe possession by the armed group of a certain level of discipline, enabling it
to implement LONIAC obligations
The fifth and last factor consists of evidence that the armed group is able to speak with one voice.
Patently, all these factors represent only indicia. There are remaining quandaries not resolved by the five factors,
and the Boskoski et al judgment broached one of them: can an armed group be deemed organized when its
members frequently violate LONIAC? The trial chamber arrived at the conclusion that it all depends on whether
these violations ‘were primarily the result of a military strategyordered by those leading the group or whether
they were perpetrated by members deciding to commit attacks of their own accord. A policy of resorting to
unlawful means and methods of hostilities-if adopted by an armed group-does not negate the organized
character of the operations. It is when individual members act entirely on their own initiative, in total disregard
of a countervailing polcy espoused by the armed group, that one may question whether the group is entirely
organized” (Dinstein (2014) p. 44).
Activity: In the state of Babylonia, a Party to APII, the army is engaged in constant combat with an armed
group, which holds several provinces in the south and has its own well-established disciplinary system to deal
with crimes committed by its soldiers. In the past few months, however, a new rebel commander has decided to
sidestep the disciplinary system by not referring any cases to it and some elements within the group have
decided to attack mosques in retaliation for losses due to government bombings. Which of the categories related
to NIACs (if any) are applicable and why? Which specific provisions are relevant?

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4.4 Internationalized Conflicts
The classification of conflicts into international and non-international, while useful, is a theoretical construct
that sometimes fails to reflect the realities on the ground. For instance, a fight between a government and
insurgents may be in fact a proxy war between two other states, each supporting a side, as was often the case
during the Cold War. Likewise, a conflict that started as non-international may evolve to be a complex situation
where several actors, both internal and external, are engaged in conflict. The solution offered by the ICTY in the
Tadić decision is to affirm that in one region, several different conflicts of different natures may occur
concurrently:
“… in case of an internal armed conflict breaking out on the territory of a State, it may become international (or,
depending upon the circumstances, be international in character alongside an internal armed conflict) if (i)
another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the
internal armed conflict act on behalf of that other State” (Tadic Appeal Judgement, para. 84)
In these cases, each contact between opposing forces is governed by different rules: when the nature of the
parties makes the confrontation a NIAC, its rules will apply, and the same will happen when the parties makes it
an IAC. This means, in practice, that in a single region forces can be subject to different rules during a single
operation.
The central issue in this discussion is always defining what degree of collaboration is needed from the third state
supporting a non-state group in order for the conflict to become internationalized. In Part I of this course, you
studied the concept of ‘effective control’ proposed by the ICJ in the Nicaragua and Genocide Convention cases.
How does this concept compare to that of ‘overall control’ embraced by the ICTY? What position has the ICC
taken in this discussion?

Reminder of Learning Outcomes

Upon completion of this section you should be able to:
Understand the elements that constitute an armed conflict under the different definitions
Understand the differences between an international and a non-international armed conflict
Critically assess the doctrinal and practical issues that surround the classification of conflicts

QUESTIONS
1. Courland, a regional power, has troops stationed in the territory of Perloja to conduct training exercises
under a bilateral treaty. Without warning, it directs them to annex the northernmost province of the country.
Perlojan troops counterattack by trying to retake these territories but the state does not notify the Security
Council of these actions while they are under way. Define the existence and nature (if any) of the conflict and
the implications of each of the parties’ actions under relevant norms.
2. Fiume is a territory that has recently gained independence from Ragusa, which also recognized it as an
independent state. The nearby states of Wallachia and Zeta refuse to recognize it and, claiming that its territory
is not under the control of any state, move their troops into Fiume and divide its land between them. In response,
Fiume declares itself the victim of aggression and uses long range artillery against population centers in both
countries. Is there an armed conflict? Why? What are the implications of the actions of each state?
3. Owing to the poor administration of the central government of Ankole (a state party to the Hague and
Geneva Conventions), citizens of the province of Toro take to the streets in largely peaceful riots while a
minority of the protesters also use light arms to attack police outposts throughout the region. In response, the
Ankole government declares that all protesters are rebels and mobilizes its army with orders to use lethal force
to ‘quell the uprising’. Is there an armed conflict? Why? What are the implications of the actions of each side?
4. Algarves, a sovereign state, is not a party to the Hague or Geneva conventions. The population of the
province of Couto, disillusioned by the excessive taxation imposed by central authorities, organizes armed
groups to fight for its independence and manages to secure a large portion of its territory. Seeing this as a threat
to its national integrity, the authorities of Algarves begin to execute captured combatants to dissuade others
from taking up arms. Is there an armed conflict? Why? What are the implications of the actions of each side?

42
Chapter 5: Combatants and POWs

Introduction
Individuals who engage in combat in international armed conflicts are known as combatants. Due to the fact that
they are carrying out the orders of their state, combatancy in itself is not illegal – as long as the strict
requirements for lawful combatancy are fulfilled. Those individuals who do not form part of the armed forces of
a state or otherwise fail to satisfy the other conditions of lawful combatancy, may be deprived of the privileges
that attach to combatancy upon capture. Therefore, determining who can legally engage in combat and who
cannot is one of the most important aspects of ius in bello. The significance of ‘combatant’ status in the
International law of armed conflict has been summarized by Emily Crawford in the following terms:
“The fundamental importance of combatant status lies in the fact that combatants who fulfill the necessary
requirements to be so classified are legitimately permitted to participate in armed activities. What this amounts
to is a ‘combatant immunity’. Persons who fulfill the requisite conditions for designation as a combatant will
not be punished for mere participation in hostilities, provided they do not perpetrate war crimes. Though the
phrase combatant immunity is not explicitly used in the Geneva Conventions, it is found in Article 43 (2) of
Protocol I which states that ‘combatants …have the right to participate directly in hostilities. As outlined in the
Commentary to Additional Protocol I:
…the combatants privilege…provides immunity from the application of the municipal law prohibitions against
homicides, wounding and maiming, or capturing persons and destruction of property, so long as these acts are
done as acts of war and do not transgress the restraints of the rules of international law applicable in armed
conflict. Those who enjoy the combatant’s privilege are also legitimate targets for the adversary’s attacks until
they become hors de combat or prisoners of war. The essence of prisoner of war status under the Third
convention is the obligation imposed on a Detaining Power to respect the privilege of combatants who have
fallen into its power.
Combatant status lies at the hear of one of the fundamental distinctions of the law of armed conflict; that of
distinguishing between combatant and civilian. The status derives from the concept that wars are not fought for
private individual gain but rather are conflicts between sovereign States. With this in mind, those persons who
legitimately participate in such conflicts are to be punished for such participation. At the cessation of hostilities,
a legitimate combatant will not face prosecution for acts committed during the course of the armed conflict,
unless such acts were in violation of the laws of armed conflict. This is the essence of combatant/POW status; it
is an international status that provides immunity from the operation of domestic criminal law for such acts as
murder, assault and destruction of property” (Emily Crawford, The Treatment of Combatants and Insurgents
under the Law of Armed Conflict. (Oxford: Oxford University Press, 2010) p. 52-53).

Combatancy - A historical perspective

The distinction between combatants and non-combatants has a long history predating much of the recent
codification. The claim of most of these rules to customary law status is in most cases unchallengeable. A good
description of this history in the period before 1949 is helpfully summarized by Emily Crawford:
“From the earliest writings of Sun Tzu through to the Middle Ages, little consideration was given to adopting
legal criteria to determine who could participate in an armed conflict. However, during the nineteenth century a
shift in thinking regarding the law of armed conflict brought a new conceptualization of combatants. Warfare
was now considered the sole domain of the state and its standing armies; conflict was an instrument of national
policy and not the private enterprise of feudal lords or city states. It became necessary to set down criteria for
who may be lawfully permitted to engage in armed conflict.
The Lieber Code did not include any reference to what constituted a lawful combatant. Reference was limited to
‘troops’ only, with articles 18 and 19 making reference to ‘non-combatants. No further attempt was made to
define an internationally accepted definition of a non-combatant. The first attempt to produce an internationally

43
accepted definition of combatant status came during the Brussels Conference of 1874, embodied in the
International Declaration Concerning the Laws and Customs of War. Article 9 of the Declaration States:
The laws, rights and duties of war apply not only to armies but also to militia and volunteer corps fulfilling the
following conditions:
(i) That they be commanded by a person responsible for his subordinates;
(ii) That they have a fixed distinctive emblem;
(iii) That they carry arms openly; and
(iv) That they conduct their operations in accordance with the laws and customs of war.
In 1880, the Oxford Manual on the Laws of War amended the Brussels Declaration to define armed forces as
including :
1. The army properly so called including the militia;
2. The national guards, landsturm, free corps and any other body which fulfills the requirements of:
A) Responsible command;
B) Wearing of uniform or a fixed distinctive emblem recognizable at a distance; and
C) That they carry arms openly.
3. Naval crews;
4. Levee en masse;
Both the Brussels Declaration and the Oxford manual definitions formed the basis of the definition of
combatants that was accepted in the Hague Regulations of 1899 and 1907, which outlined rules for who may be
considered a combatant. Under Article 1 of the Regulations Respecting the Laws and Customs of War on Land,
belligerents must fulfil the following criteria:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed emblem recognisable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
… connected to this notion that States and not individuals wage war was the idea that the individual should not
be punished for the actions of his state. Thus a legitimate combatant would not face prosecution for his warlike
acts upon cessation of hostilities provided he conducted himself in accordance with the laws of armed conflict”
(Crawford (2010) p. 49-50).
In this chapter we will be looking at the existing provisions on combatancy – the act of engaging in combat –
and the different categories that exist during combat operations. We will also consider standards for detention
and the questions posed by unlawful combatants.

Basic reading
Green, Chapter 6.
Yoram Dinstein, War, Aggression and Self-Defence. (Cambridge: Cambridge University Press, 2011)
Chapter 2.
Dieter Fleck, The Handbook of International Humanitarian Law. (New York City: Oxford University
Press, 2008) Chapters 3 and 7.

Further reading
1. Combatants, noncombatants and POW status
International Conferences (The Hague). Hague Convention Respecting the Laws and Customs of War
on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (Hague Convention IV)
18 October 1907. Arts 13, 29 and 31.
International Committee of the Red Cross. Geneva Convention Relative to the Treatment of Prisoners
of War (Geneva Convention III) 12 August 1949. Arts 4, 5.

44
 International Committee of the Red Cross. Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I),
8 June 1977. Arts. 43, 47.
Jean-Marie Henckaerts, Bringing the Commentaries on the Geneva Conventions and their Additional
Protocols into the 21st Century. International Committee of the Red Cross Commentary, 2012
<https://www.icrc.org/eng/resources/documents/interview/2012/geneva-conventions-commentariesinterview -
2012 -07-12.htm>
Michael Bothe, Karl Josef Partsch, Waldemar A. Solf, New Rules for Victims of Armed Conflicts:
Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949. (Dordrecht: Martinus
Nijhoff Publishers 1982) p. 570-572.
G.I.A.D Draper, The Status of Combatants and the Question of Guerrilla Warfare. Vol. 45 British
Yearbook of International Law (1971).
Yoram Dinstein, Unlawful Combatancy. Israel Yearbook of Human Rights 2002. Vol. 32 (2003) p.
247-270.
Yasmin Naqvi, Doubtful Prisoner of War Status. International Review of the Red Cross. Vol. 84 No.
847 (2002) p. 571-594.
George H. Aldrich, The Taliban, Al Qaeda and the Determination of Illegal Combatants. The American
Journal of International Law. Vol. 96 No. 4 (2002) p. 891-898.
Christopher Greenwood, Terrorism and Humanitarian Law: the Debate Over Additional Protocol I. 19
Israel Yearbook on Human Rights (1989) p. 187-208.
Cases:
Public Prosecutor v. Oie Hee Koi. Judicial Committee of the Privy Council UK. [1968] 42 ILR 441.
Bin Haji Mohamed Ali and Another v. Public Prosecutor, Judicial Committee of the Privy Council
(UK) [1968] 42 ILR 458.
Military Prosecutor v. Omar Kassem and Others, Military Court sitting in Ramallah Israel [1969] 42
ILR 470.
International Military Tribunal of Nuremberg. Hostages Case, United States v. List (Wilhelm) and Ors.
(Judgment) [February 1948] 15 AD 632.
The Von Falkenhorst Case (Trial of General Von Falkenhorst, Military Court at Brunswick [1946] 13
AD 282.
The Dostler Case (Trial of General Anton Distler, Commander of the 75th German Army Corps), US
Military Commission [1945] 13 AD 280.
Ex parte Quirin; 317 US 1 (1942).
The Skorzeny Case (Trial of Oto Skorzeny and Others, General Military Government Court of the U.S.
Zone of Germany) [1949] WCR 90.
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991. Prosecutor v.
Ivica Rajic (Sentencing Judgment) [2006] 108 ILR 141.

2. Treatment of POWs and unlawful combatants

International Committee of the Red Cross. Geneva Convention Relative to the
Treatment of Prisoners of War (Geneva Convention III), 12 August 1949.
International Committee of the Red Cross. Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I),
8 June 1977. Especially Arts 40 and 42.
James Stewart, Rethinking Guantanamo – Unlawful Confinement as Applied in International Criminal
Law. Journal of International Criminal Justice. Vol. 4 No. 1 (2006) p. 12-30.
Johan Steyn, Guantanamo Bay: the Legal Black Hole. International and Comparative Law Quarterly.
Vol. 53 No. 1 (2004) p. 1-15.
Michael Meyer, Liability of POWs for Offences Committed prior to Capture – The Astiz Affair.
International and Comparative Law Quarterly. Vol. 32 No. 4 (1983) p. 948-980.
United Nations Economic and Social Council. Situation of Detainees at Guantanamo Bay. International
Legal Materials. Vol. 45 No. 3 (2006) p. 716-741.

45
Cases:
Yaser Esam Hamdi and Esam Fouad Hamdi v. Donald H Rumsfeld, Secretary of Defence. U.S.
Supreme Court (2004) 542 U.S. 507.
Hamdan v. Rumsfeld, Secretary of Defence. U.S. Supreme Court (2006) 548 U.S. 557.
Shafiq Rasul et al. v. George W. Bush, President of the United States. U.S. Supreme Court (2004) 542
U.S. 466.
George W. Bush, President of the United States of America. Military ORder of Novermber 13th 2001.
Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism. Federal Register Vol. 66
No. 222 (2001) <https://en.wikisource.org/wiki/Military_Order_of_November_13,_2001>

Learning outcomes
By the end of this chapter you should be able to:
Discuss the status of combatants under international law
Explain the distinction between combatants and non-combatants (civilians) as well as the more
controversial distinction between lawful and unlawful combatants
Understand the notion of prisoner of war (POW) status as well as the rules governing their treatment
Discuss the current complexities of applying POW status to certain individuals

5.1 Combatant Status

A combatant is an individual who participates actively in the hostilities. What this means will be discussed in
depth in Chapter 6, but for our current purposes a working definition of a combatant is an individual whose
actions contribute to his state’s efforts to gain a military advantage over the opponent.
In general, only members of a state’s armed forces are allowed to wage war without being punished for actions
that would generally be unlawful but are not banned during war (for example, taking someone’s life or
destroying property), provided that the requirements of ius in bello are met; this situation is known as combat
privilege. Individuals with combat privilege also benefit from being treated as prisoners of war (POWs) once
captured.
Since considerable deference is granted towards combatants, international law has sought to limit combat
privilege to only select individuals who are understood to be lawful combatants. In contrast, unlawful
combatants are criminally liable for participating in hostilities and do not benefit from POW status.
In many ways, lawful combatancy is now defined by the right to POW status. Consider the provisions of the
Geneva Convention III (1949), which further evolves the norms already present in the 1907 Hague Convention
IV and the 1929 Geneva Convention:
Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following
categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps
forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance
movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this
territory is occupied, provided that such militias or volunteer corps, including such organized resistance
movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by
the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members
of military aircraft crews, war correspondents, supply contractors, members of labour units or of services
responsible for the welfare of the armed forces, provided that they have received authorization, from the armed

46
forces which they accompany, who shall provide them for that purpose with an identity card similar to the
annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil
aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other
provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to form themselves into regular armed units, provided they
carry arms openly and respect the laws and customs of war.
Lawful combatants are the individuals within this list who participate actively in the hostilities, namely,
members of the armed forces (1), organized militias that are under responsible command, carry distinctive
elements, carry arms openly and conduct operations in accordance to ius in bell (2), members of the armed
forces of unrecognized states (3) and individuals of a non-occupied territory who take up arms spontaneously
while the enemy approaches, known as levée en masse (mass uprising) (6).
Non-combatants are members of the armed forces who do not regularly participate in the hostilities, such as
medical and religious personnel (GCIII 4C, 33). Others attached to armed forces include persons that don’t
belong to them but are generally accompanying them during combat, such as war correspondents and technical
personnel (4). Crews of aircraft and naval vessels (5) are also treated as non-combatants during combat. None of
these individuals may use force against the enemy except in strict self-defence if they are at risk due to the
enemy attacking them, and benefit from POW status upon capture. Additionally, medical and religious
personnel can only be detained as long as they are strictly needed to tend to the needs of other POWs of their
same side, and should be released afterwards (International Committee of the Red Cross. Geneva Convention
Relative to the Treatment of Prisoners of War (Geneva Convention III) 12 August 1949)

5.2 Combatancy and POW Status

The individuals from the groups mentioned above have the right to POW status.
As Dinstein notes, in addition to the requirements above, there are three other requirements for POW status
under customary law: that the individual belongs to a party to an international conflict, that he does not owe
allegiance to the Detaining Power, and finally, that all forces who engage in combat have to fulfill the
requirements of paragraph (2) cited above.
Regarding this first requirement, consider the judgment of the Kassem case (Israel, Military Court sitting in
Ramallah. Military Prosecutor v Omar Mahmud Kassem and Others (1969)). Individuals from the Palestinian
Liberation Front attacked Israeli assets within Israel while carrying distinctive insignia and identification that
implied they belonged to the Front. Once captured, these forces then claimed a right to POW status. The
Tribunal rejected their claim, inter alia noting that GCIII applies only to conflicts between states, and since there
was no Palestinian state, no one could claim POW status when fighting on its behalf. Was this decision correct?
Should this decision be different if it were taken today?
The second requirement was discussed by the Privy Council in the Oi Hee Koi judgment (Public Prosecutor v.
Oie Hee Koi. Judicial Committee of the Privy Council UK. [1968] 42 ILR 441 (and the related appeals of
1968)). During the war between Indonesia and Malaysia, twelve Indonesian Malay paratroopers serving in the
Indonesian armed forces were captured and sentenced under national criminal law. The individuals, however,
claimed that they had a right to POW status. The Privy Council (acting as a court of appeal for Crown
dependencies and overseas and Commonwealth territories) had to consider whether an individual is entitled to
POW status if the Detaining Power is his own country. It decided that no one can benefit from POW status from
a country he owes allegiance to. What options does the state have after this decision?
The last requirement has been further developed in international practice and through the work of
commentators. According to this norm, it does not suffice to be a member of a regular armed force in order to
benefit from POW status. Instead combatants also have to comply with the requirements set out for militias in
paragraph (2) above. The main purpose of this rule is to exclude from POW privileges those members of the
armed forces who wage war through unlawful means.
One of the main elements of lawful combatancy is the use of distinctive uniforms or emblems by combatants in
order to differentiate them from civilians and thus legitimately determine who is a valid target (a requirement
known as the principle of distinction, which we will consider in depth in the next chapter). Consider the
judgment of the Privy Council in the Mohamed Ali case:

47
“In neither the Hague Regulations nor in the Geneva Convention is it expressly stated that a member of the
armed forces has to be wearing a uniform when captured to be entitled to be so treated. In the case of certain
militias and volunteer corps certain conditions have to be fulfilled in relation to those bodies for a member of
them to be entitled to treatment as a prisoner of war. It is not, however, stated that such a member must at the
time of his capture be wearing "a fixed distinctive sign recognisable at a distance” (Bin Haji Mohamed Ali and
Another v. Public Prosecutor, Judicial Committee of the Privy Council (UK) [1968] 42 ILR 458).
International law, however, recognises the necessity of distinguishing between belligerents and peaceful
inhabitants. As Spaight writes:
"The separation of armies and peaceful inhabitants is perhaps the greatest triumph of international law. Its effect
in mitigating the evils of war has been incalculable” (James Spaight, War Rights On Land. (London: Macmillan
Press, 2012) p. 37)
Although paragraph 86 of the Manual of Military Law recognises that this distinction has become increasingly
blurred, it is still the case that each of these classes has distinct rights and duties.
For the "fixed distinctive sign to be recognisable at a distance" to serve any useful purpose, it must be worn by
members of the militias or volunteer corps to which the four conditions apply. It would be anomalous if the
requirement for recognition of a belligerent, with its accompanying right to treatment as a prisoner of war, only
existed in relation to members of such forces and there was no such requirement in relation to members of the
armed forces. All four conditions are present in relation to the armed forces of a country or, as Professor
Lauterpacht calls them "the organised armed forces" (Hersch Lauterpacht, Oppenheim’s International Law.
International Law: A Treatise. Vol II (Longman, Green and Company, 1952) p. 259). Notably, Spaight says, in
relation to Article 1 of the Regulations: "The four conditions must be united, to secure recognition of belligerent
status” (Spaight, 2012, p.56).
According to Dr Pictet: "The qualification of belligerent is subject to these four conditions being fulfilled,"
(Pictet (1952 p.48) and, in relation to subparagraph (3) of Article 4A:
"These 'regular armed forces' have all the material characteristics and all the attributes of armed forces in the
sense of sub-paragraph (1): they wear uniform, they have an organised hierarchy and they know and respect the
laws and customs of war” (Pictet (1952) p. 63).
… In the light of the passages cited above, their lordships are of the opinion that under international law it is
clear that the appellants, if they were members of the Indonesian armed forces, were not entitled to be treated on
capture as prisoners of war under the Convention when they had landed to commit sabotage and had been
dressed in civilian clothes both when they had placed the explosives and lit them and when they were arrested.
As you can see in this excerpt and in the Von Falkenhorst Case, special importance is given to the issue of
distinctive elements in the determination of combatancy and the right to POW status, as it is a means to trust
that those who are not wearing uniforms are civilians and should be protected from combat. Abusing this
protection by posing as a civilian is therefore unlawful and constitutes a violation of ius in bello (The Von
Falkenhorst Case (Trial of General Von Falkenhorst, Military Court at Brunswick [1946] 13 AD 282).
This issue is also dealt with in the court’s ruling in Ex parte Quirin 317 US 1 (1942).
Activity: Upon reading the judgment, what do you think about the conclusion of the US Military Tribunal in
Dachau in the Skorzeny [1947] case? What is the difference between carrying no uniform and carrying the
adversary’s uniform? Try to formulate a general rule about uniforms that adequately explains why one situation
is lawful and the other one isn’t. Pay special attention to the objective behind these decisions and the
circumstances in which they are carried out.
5.2.1 Unlawful combatants
Unlawful combatants are those civilians who participate in the hostilities without fulfilling the requirements for
being a lawful combatant. When they do so, they temporarily lose their protected civilian status and may be
targeted and attacked. Upon capture, they do not benefit from POW status and, unlike combatants, can be
prosecuted for their participation in the hostilities. Note for example the argument of the US Military Tribunal in
the List case (also known as the Hostages case) [1948] when referring to the execution of captured partisans
under Hague rules:
The bands, however, with which we are dealing in this case were not shown by satisfactory evidence to have
met the requirements. This means, of course, that captured members of these unlawful groups were not entitled
to be treated as prisoners of war. No crime can be properly charged against the defendants for the killing of such
captured members of the resistance forces, they being franc-tireurs (International Military Tribunal of
Nuremberg. Hostages Case, United States v. List (Wilhelm) and Ors. (Judgment) [February 1948] 15 AD 632).

48
Activity: Is the execution of unlawful combatants who have been captured still lawful? Consider the relevant
provisions of the Geneva Conventions and API. Would the Tribunal have arrived at a different conclusion if it
faced the same case today?
API extends POW standards of detention to unlawful combatants, but not POW status itself or combat
immunity. However, since many states are not parties to API this provision remains applicable only to them and
is not part of customary law. We will look into some cases in detention of unlawful combatants further along in
this chapter.
5.2.2 Mercenaries, spies and special forces
Mercenaries are individuals from a third state that are used by one of the belligerents to participate in hostilities
in exchange for unusually high remuneration. Under Article 47 of API and the International Convention against
the Recruitment, Use, Financing and Training of Mercenaries, states are banned from employing them, and they
are therefore considered to be unlawful combatants. As such, they are also excluded from the right to POW
status. However, the Convention has not been widely adopted and, as some states are also not parties to API,
they are in principle not forbidden from employing them, but such actions remain controversial.
For example, the wars in Afghanistan and Iraq saw the use of “private security contractors” by US forces to
carry out logistic and supply tasks and to guard sensitive locations against attack. Although in these instances
the forces would in theory only be allowed to use force in self-defense, alleged abuses were often denounced by
national and international organizations, and the use of Status of Forces Agreements and laws issued during
occupation limited the capacity to bring them to justice. These precedents and the growing use of private
companies to outsource some of the non-combat duties traditionally carried out by soldiers, as well as in some
instances defensive and intelligence operations, means that this will probably be one of the biggest issues in ius
in bello over the coming decades.
Activity: Find examples of alleged abuses committed by private security contractors in conflict zones during the
past decade and the issues that were raised when the territorial state tried to prosecute them.
Spies are state agents who do not necessarily belonging to the armed forces, but who on its behalf carry out
intelligence missions or in some cases hostile operations in territory controlled by the enemy without wearing
uniforms or emblems. As this is a violation of the principle of distinction, they are not entitled to POW status
and can be detained and punished.
Special forces are soldiers acting behind enemy lines, but remaining identifiable by their uniform or distinctive
emblems. Therefore, unlike spies, they are combatants and protected by their POW status.
As you can see, the fact of having emblems during operations is a central factor distinguishing special forces
from spies. Consequently, courts have tended to focus on this particular question in their proceedings. In which
of the judgments studied for this session did you find this issue?

5.3 Capture and Detention

When a lawful combatant falls into the power of the enemy he is considered captured and the provisions of the
Third Geneva Convention come into effect. This may happen due to enemy action forcing him/her to lay down
his arms, or by being placed hors de combat (out of combat) by another reason, such as being shipwrecked,
injured or sick (Geneva I, II and III). The enemy state is then known as the Detaining Power, and has a duty to
protect him/her while s/he is held as a prisoner. If s/he is a lawful combatant, s/he must be treated as a prisoner
of war: s/he may not be prosecuted for lawful prosecution of war, although may be prosecuted and punished for
breaches of the laws of war, including war crimes. If he is an unlawful combatant he may be detained and
prosecuted for his/her participation in hostilitiess. In any case, the detainee has a right to appeal the refusal of
POW status.
As we saw before, lawful combatancy is by definition legal, and therefore lawful combatants cannot be
punished for it. This also means that detention is not punishment: it is just a way to keep an individual out of
combat. Therefore, while captivity leads to a deprivation of liberty, POWs enjoy a wide array of protections to
ensure that detention is humane and more uniquely, they enjoy many benefits that are not enjoyed by individuals
convicted of crimes.

49
Note the provisions of GIII and the relevant section in Fleck. Which of these benefits are not normally available
to convicted criminals? This will give you an idea of why detention as a POW is not deemed to be a criminal
punishment.
Upon capture, a combatant should be either transported to a safe detention center or released. Medical and
religious personnel should be released immediately unless combatants from their own side are being held as
prisoners and need their services, and even in that case they should be released as soon as possible. Prison
camps should be located far from combat and have adequate facilities to ensure the protection and dignity of
POWs.
Another important provision that benefits POWs is that they can never be the object of reprisals (GIII 13). This
argument is well established under positive and customary rules, as can be seen in the judgment of the US
Military Commission in Rome in the Dostler case (1948):
The Commission's decision on this point is in accordance, inter alia, with Art. 2, para. 3, of the Prisoners of War
Convention of 1929, according to which measures of reprisal against prisoners of war are forbidden. From this it
follows that under the law as codified by the 1929 Convention there can be no legitimate reprisals against
prisoners of war. No soldier, and still less a Commanding General, can be heard to say that he considered the
summary shooting of prisoners of war legitimate even as a reprisal (The Dostler Case (Trial of General Anton
Distler, Commander of the 75th German Army Corps), US Military Commission [1945] 13 AD 280).
The general rule is that a POWs human rights should always be respected (API 75). They cannot be subjected to
dishonourable treatment (GCIII Art.14 and 16) and as the detaining power is tasked with their protection, it not
only has to refrain from harming them but also has to protect them from other groups or situations that might
cause them harm. Consider, for instance, the Military Commission’s decision in Dostler [1949]. What general
rules can you derive from the judgment?
The responsibilities of Protecting Powers further support the unique rights of POWs to additional protection.
These powers may be third states or international organizations that have the faculty to review conditions of
detention and make sure prisoners are treated adequately through impartial access to POW camps. Protecting
Powers are asked to act by the parties to the conflict, and in many instances this role is given to the International
Committee of the Red Cross.
Captivity ends when a prisoner successfully escapes the Detaining Power’s zone of control or he is released,
either due to a special agreement or to the termination of the hostilities. The only individuals who are not
released upon termination of hostilities are those who are under trial or imprisonment for international crimes.
Activity: Find an example of when the Security Council has mandated the Red Cross to act as a Protecting
Power in an international conflict. Are the terms established by the Council fully compliant with the general
regime for Protecting Powers or do they have special considerations?
5.3.1 Unlawful combatants and capture
Since unlawful combatants do not benefit from POW status they do not benefit from the treatment reserved for
those who do. Some states have argued that this means that they fall in a legal ‘black hole’ where the laws of
war do not apply to them. Some have gone so far as to attempt to hold them in extraterritorial facilities claiming
that their status implies they are outside the boundaries of both national and international law.
This is the case of the US prison in Guantanamo, where alleged unlawful combatants are held on the authority
of the US Presidential Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism. Note its provisions on detention conditions, access to a competent body and judicial remedy:
Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be—
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United
States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any
similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
…
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.

50
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all
offenses triable by military commission that such individual is alleged to have committed, and may be punished
in accordance with the penalties provided under applicable law, including life imprisonment or death.
…
(b) With respect to any individual subject to this order—
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly,
or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States,
or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal (George W. Bush,
President of the United States of America. Military ORder of November 13th 2001. Detention, Treatment and
Trial of Certain Non-Citizens in the War Against Terrorism. Federal Register Vol. 66 No. 222 (2001)).
What comments do you have on the assurances of the conditions of detention, having seen ECOSOC’s report?
Contrast both situations and assess the compliance of the state with international standards. Consider also access
to the base by the ICRC in light of what you have learned about its role in visiting detainees.
The Executive Order has been challenged before the Supreme Court on the two other aspects we have
highlighted. The first question raised was whether a regular court outside Guantanamo could review a prisoner’s
detention. The Court stated in Rasul v Bush that, unlike what the Order had established, detainees do indeed
have a right to have their detention reviewed under writs of habeas corpus before the US judiciary, clearly
indicating that they do not fall outside the judicial system even if they are suspected terrorists.
As a second question, does the state’s argument that Geneva Conventions don’t apply hold up to scrutiny? And
if so, what rules for treatment of prisoners should apply? The Court established in Hamdan v Rumsfeld that the
minimum provisions of Common Article 3 (CA3) of the Geneva Conventions were applicable. As such, its
dispositions on judicial guarantees indicated that detainees had a right to be tried by a regularly constituted
tribunal, as opposed to the ad hoc tribunal established by the Executive Military Order.

Reminder of learning outcomes

Upon completion of this section you should be able to:
Explain who a combatant is and formulate the requirements for lawful combatancy
Understand the content of the categories of unlawful combatants and noncombatants and the treatment
they each receive if captured
Delineate the general outlines of detention for POWs; and
Explain current controversies in the detention of terrorist suspects under the laws of war

QUESTIONS
1. Critically evaluate the US Supreme Court’s jurisprudence on the treatment of terrorist suspects under
the laws of war.
2. Does the territory where a state holds a POW/unlawful combatant make any difference in regard to the
application of minimum treatment standards?
3. In a conflict between a Party and a non-Party to API what would be the main differences in treating
unlawful combatants in each case?
4. Critically assess the legality and consequences of applying the requirements of Article 4 para. 2 to
members of regular armed forces.
5. Critically evaluate the decision in Kassem.

51
Chapter 6: The Use of Certain Weapons of Warfare

Introduction
In the last chapter we saw how combatants can never target civilians directly in the context of military
operations. What happens, however, when attacking a valid military target might harm civilians nearby? In this
case combatants are faced with the issue of proportionality, which seeks to find a balance between humanitarian
and military interests.
In this section we will explore the scope and content of this principle and the restrictions it imposes on combat
action.

Basic reading
Green, Chapters 12 and 14
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict.
(Cambridge: Cambridge University Press, 2004) Chapter 5.
Dieter Fleck, The Handbook of InternationalHumanitarian Law. (New York City: Oxford University
Press, 2008) Chapters 5, 8 and 9.

Further reading
F Kalshoven, "Constraints on the Waging of War (1987) pp. 71107
*Dinstein, ‘Legitimate military objectives under the current Jus in bello’, 31 Israel Ybk on HR (2001),
1;
Rogers, ‘What is a legitimate military target?’ in Burchill, White and Morris (eds), International
conflict and security law (CUP, Cambridge 2005);
*Fenrick, “Targeting and proportionality during the NATO Bombing campaign against Yugoslavia”
EJIL June 2001;
*Fenrick, ‘The rule of proportionality and Protocol I in conventional warfare’ 98 Military Law Review
(1982) 91;
Rogers, ‘Zerocasualty warfare’, 837 IRRC (2000) 165;
*Gardam, ‘Proportionality and Force in International Law’ (1993) 87 AJIL 391;
J Holland, ‘Military objective and collateral damage: their relationship and dynamics’ 7 Ybk of IHL
(2004) 35;
Rauch, ‘Attack restraints, target limitations and prohibitions or restrictions of use of certain
conventional weapons’ 18 Revue de Droit Militaire et de Droit de la Guerre (1979), 53;
Roberts, Adam, "Civil Defence and International Law” in Armed Conflict and the New Law (Michael
A. Meyer ed. 1989) pp. 175207;
McCoubrey, ‘The nature of the modern doctrine of military necessity’, 30 Revue de Droit Militaire et
de Droit de la Guerre (1991) 215;
Carnahan and Lincoln, ‘Lieber and the laws of war: the origins and limits of the principle of military
necessity’ 92 AJIL (1998) 213
ICTY Kosovo Report (2000):
*ICTY Final Report to the prosecutor by the Committee Established to Review the NATO Bombing
Campaign against the FRY, 39 ILM, 1257 (2000)

Learning outcomes
By the end of this chapter you will be able to explain:
The final element in the rules for targeting

52
 The principle of proportionality
The principle of distinction
The principles of necessity and precaution
The special rules governing cultural property in times of war

6.1 The Principle of Proportionality in International Law

Proportionality refers to the relation between the military advantage expected when launching a particular attack
and the harm it may cause to civilians and civilian objects. Only when the military advantage gained is superior
to the possible harm will the attack be lawful. When the armed force attacks without regard to the fact that
civilian damage will be greater than the expected military advantage the attack is considered to be
disproportionate or excessive, and is unlawful. Likewise, when an attack would offer no concrete military
advantage, it is unlawful as it does not respect the principle of necessity.
As you can see, proportionality is a tradeoff between humanitarian concerns and military interests. Human
suffering and the destruction of property are regrettable but sometimes inevitable parts of warfare, and therefore
states have the duty to reduce them as much as possible, by making sure no that damage is unnecessary or
superfluous. Article 51 (5) (b) of API describes the principle of proportionality:
1. The civilian population and individual civilians shall enjoy general protection against dangers arising from
military operations. To give effect to this protection, the following rules, which are additional to other
applicable rules of international law, shall be observed in all circumstances.
(…)
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective;
or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this
Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(…)
(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 (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I) (June 1977))
This principle also has strong roots in customary law. The ICJ dealt with proportionality in ius ad bellum in its
judgments in the Nicaragua and Oil Platforms cases, and deals with its specific manifestation in ius in bello in
the Nuclear Weapons case:
42. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all
circumstances. But at the same time, a use of force that is proportionate under the law of self-defence, must, in
order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in
particular the principles and rules of humanitarian law (Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226, para. 42).
In particular, while considering the obligation to protect the environment during combat operations (API and
other instruments) the Court noted that proportionality was a factor to be considered when planning an attack:
30. However, the Court is of the view that the issue is not whether the treaties relating to the protection of the
environment are or are not applicable during an armed conflict, but rather whether the obligations stemming
from these treaties were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of
its right of self-defence under international law because of its obligations to protect the environment.
Nonetheless, States must take environmental considerations into account when assessing what is necessary and
proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements
that go to assessing whether an action is in conformity with the principles of necessity and proportionality
(Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para. 30).

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As you can see, proportionality is part of the decision-making process when a Party is considering an attack, and
is so central to it that if the attacker believes that the attack will not be proportionate he has the obligation to
refrain from conducting it (API 57). Therefore, distinction and proportionality are the two basic guiding
principles in ius in bello, and are the main hallmarks of legality in combat. Serious violations of proportionality
are so grave that they give rise to international criminal responsibility.
Activity: Find the provisions in the Rome Statute that prohibit attacks that grossly violate proportionality.
Afterwards, try to find one judgment from the ICTY and one from the ICTR where the defendants are
questioned because of possible breaches of this principle.
6.1.1 Indiscriminate attacks
Violations of proportionality often take the form of indiscriminate attacks. Dinstein defines them as attacks
where the attacker does not want to harm the civilian population but uses a method or means of combat that can
cause both military and civilian damage with no distinction (API 51(4), (5)) and with no regard to the protection
of the civilians. Such conduct covers acts including firing blindly, releasing bombs indiscriminately, conducting
bombing raids in conditions that hamper accuracy and using imprecise weapons in areas where military and
civilian objects are in close proximity.
Consider the report on Gaza that you analyzed in the last Chapter. What did it say regarding the application of
the principle of distinction?
International courts have also found that seemingly disproportionate attacks are sometimes used to hide the real
intent to target and attack the civilian population (International Criminal Tribunal for Yugoslavia. Prosecutor v
Galic (Judgment and Opinion) Case IT-98-29-T [December 2003]), which also holds true in cumulatively
disproportionate attacks (International Criminal Tribunal for Yugoslavia. Prosecutor v Kupreškić et al.
(Judgment and Opinion) Case IT-95-16 [January 2000]).
6.1.2 The limits of proportionality and precaution
The fact that all attacks must comply with the principle of proportionality has been interpreted by some states as
meaning that any level of civilian death or injury or damage to civilian infrastructure is acceptable as long as the
military advantage is greater. The ICRC Commentary on API 51(5) indicates that
This theory is manifestly incorrect. In order to comply with the conditions, the attack must be directed against
a military objective with means which are not disproportionate in relation to the objective, but are suited to
destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol;
'moreover,' even after those conditions are fulfilled, the incidental civilian losses and damages must not be
excessive. Of course, the disproportion between losses and damages caused and the military advantages
anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other
situations there may be reason for hesitation. In such situations the interests of the civilian population should
prevail, as stated above.
The idea has also been put forward that even if they are very high, civilian losses and damages may be justified
if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the
Protocol; in particular it conflicts with Article 48 ‘(Basic rule)’ and with paragraphs 1 and 2 of the present
Article 51. The Protocol does not provide any justification for attacks which cause extensive civilian losses and
damages. Incidental losses and damages should never be extensive (International Commmittee of the Red Cross.
Commentary on Protection of the civilian population. <https://www.icrc.org/ihl/COM/470-750065>).
Therefore it is clear that civilian losses, even though inevitable, must always be incidental, and not part of a
calculated high-stakes gamble. In order to avoid them, therefore, forces should exercise precaution (API 57 2 a).
Dinstein sets out the main obligations to consider when complying with precaution: the attacking force should
do all it can to verify the military nature of the objective, choose adequate means and methods to eliminate or
minimize civilian damage and refrain from attacking if it seems that the requirement of proportionality will not
be met. Precaution also entails the state obligation to remove civilians from zones within its control that may be
susceptible to attack by the enemy (58).

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Activity: Note the situations described in the ICTY’s report and in Fenrick’s article. Do you think precaution
was adequately upheld in these instances?
6.1.3 Assessing proportionality
So far we’ve seen that respecting proportionality is an obligation when conducting combat operations. But how
exactly is proportionality assessed? How do courts consider and analyze the evidence available to see if
combatants and planners respected this principle?
The first step is remembering that proportionality is a balancing act between the potential damage to civilian
property or death of civilians and the anticipated military advantage. Therefore, it considers factors that are not
necessarily quantifiable but rather subjective and therefore difficult to compare. Proportionality is not an exact
science. Instead, it is a conscientious evaluation that should produce consistent results as it should always be
guided by an honest interpretation of the values and rules concerned as well as existing military custom. The
ICTY stated:
In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-
informed person in the circumstances of the actual perpetrator, making reasonable use of the information
available to him or her, could have expected excessive civilian casualties to result from the attack (International
Criminal Tribunal for Yugoslavia. Prosecutor v Galic (Judgment and Opinion) Case IT-98-29-T [December
2003]).
The wording in Article 51 of API is very telling in setting out the rules for assessing proportionality, answering
the questions of who, when and how. Note for example the use of the words expected and anticipated. Does that
imply an ex ante or an ex post facto analysis? This is also related to the duty of evaluating compliance by
placing oneself in the circumstances existing at the moment of the attack, which implies that this assessment is
sensitive to the complications and challenges that might arise in a particular situation.
However, this also implies that forces should be able to adapt and that the means and methods of combat should
be adjusted as necessary to ensure respect for IHL. For instance, while attacking a defensive position in a
populated area with mortar fire might be disproportionate, the attack will probably be lawful if it is carried out
using a minor armed force carrying small arms. We will study the issue of means and methods of combat in the
next chapter.
Another important aspect is derived from understanding the respect of IHL under the general terms of
international law. Assessing proportionality in a particular attack is an instance where a state implements its
international obligations, and therefore this process should be conducted in good faith (pacta sunt servanda,
Article XX, Vienna Convention on the Law of Treaties 1969). This means that in every case the attacker should
try to be unbiased and have the relevant information necessary to make an informed decision, a conclusion
supported by many states when ratifying API as reflected in their declarations with respect of Article 51. This
also implies that the lack of any of the elements above would activate the obligation to comply with precaution
and even call off the attack in some cases.
Another particularly controversial issue has been defining the temporal and geographical limits within which
military advantage is assessed. As the ICRC notes in its Commentary,
Several States have stated that the expression “military advantage” refers to the advantage anticipated from the
military attack considered as a whole and not only from isolated or particular parts of that attack. The relevant
provision in the Statute of the International Criminal Court refers to the civilian injuries, loss of life or damage
being excessive “in relation to the concrete and direct overall military advantage anticipated” (emphasis added).
The ICRC stated at the Rome Conference on the Statute of the International Criminal Court that the addition of
the word “overall” to the definition of the crime could not be interpreted as changing existing law (International
Commmittee of the Red Cross. Commentary on Rule 14. Proportionality in Attack.
<https://www.icrc.org/customary-ihl/eng/docs/v1_cha_ chapter4 rule14>).
Lastly, as the ICRC notes, the attacking force should always keep in mind that the expression “concrete and
direct” military advantage indicates that it must always be “substantial and relatively close, and that advantages
which are hardly perceptible and those which would only appear in the long term should be disregarded”.
Therefore, there is a strong requirement of a clear and strong causal link between the attack and the expected
advantage in order for the attack to be lawful. Remote and theoretical advantages cannot legitimize an attack
(Ibid).

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Activity: You are a legal advisor to the Air Force of a State Party to API. You are asked to assess the legality of
conducting a particular attack. The situation is the following:
Recent information provided by informants on the ground has revealed that a high-ranking general in the
enemy’s armed forces has fortified a position within a residential complex in a highly populated area of the
capital city that has been partially evacuated. He is expected to stay there for a few days. He has little control
over the armed forces in the city but analysts have indications that he holds the allegiance of armed components
in the tribal areas of the country, so his neutralization could potentially lead to a decrease in attacks to allied
forces by this particular group. Roadblocks prevent a ground attack and poor weather conditions are expected.
Military commanders have proposed attacking the complex through high-altitude aerial bombing.
Using what you have learned in this section, assess the elements of proportionality in this attack and provide a
reasoned recommendation to the military commanders in charge of this operation.
Case study: cultural objects
Cultural property is a particular set of protected civilian objects under customary IHL with further protection
established under the 1954 Hague Convention. During wartime, such property is protected by special rules that
require a higher threshold in order to allow an attack where they might sustain damage. Fleck’s handbook
provides an operational analysis of the obligations of both attacking and defending forces towards these objects.
Recall, for instance, the rules for attacking civilian objects that we studied in the last chapter. Unlike other
objects in this category, cultural objects can only be attacked because of their use, that is to say, they may not be
the object of attack unless converted into military objectives by enemy action.
Proportionality is also affected because the threshold varies according to the perceived cultural value of the
object – for example, Iraqi jet fighters stationed next to an ancient ziggurat during the Gulf War were not
attacked out of fear of damaging the monuments. Certain exceptional cultural objects or locations may have a
further strengthened standard for proportionality if they are under an international registry. Under Article 7(b) of
GC APII, parties must ‘take all feasible precautions in the choice of means and methods of attack with a view to
avoiding, and in any event to minimizing, incidental damage to cultural property protected under Article 4 of the
Convention’ (Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of Non-
International Armed Conflicts ( Protocol II) (June 1977) Art. 7(b)).
Activity: What conclusions in the protection of cultural objects during conflict can you gather from the
judgments in Kortić and Strugar (ICTY)?

Reminder of learning outcomes

Upon completion of this section you should be able to:
Understand the concept and content of the principle of proportionality
Define the concepts of precaution, military necessity and distinction
Outline the process necessary to asses proportionality in an attack
Understand the special rules regarding the protection of cultural property

QUESTIONS
1. Discuss the legality of the NATO air campaign in Kosovo. In particular, discuss the legality of the
following incidents:
(a) the bombing of RTS Serbia’s main TV and Radio studios;
(b) the bombing of the Chinese Embassy in Belgrade;
(c) the destruction of a bridge while a train was crossing it.
2. Critically assess the standard of ‘the reasonable person’ in the context of military operations.
3. Discuss how implementing the standard of overall military advantage contained in the Rome Statute
might change the evaluation of proportionality in a combat operation as opposed to an evaluation following the
classic understanding of military advantage. Illustrate your answer with practical examples in a combat
operation.
4. The Vatican City State is protected under the International Register created by the 1954 Convention. If
an armed force were to take up position within this sector, how would this affect the enemy’s duties during
combat? What would happen if there was an “imperative military necessity” for the other side to attack them?

56
Chapter 7: Means and Methods of Warfare

Introduction
Previous chapters have shown that indeed the right of belligerents to choose methods or means of warfare is not
unlimited as they have to comply with limitations that either forbid certain weapons or tactics during combat or
limit them in some circumstances. Therefore, belligerents should take care to avoid actions that might entail
violations of rules and principles of IHL.
This chapter will analyze how the general framework of ius in bello applies to the questions of weapons and
tactics. As a particularly important area of law, much of the means and methods of warfare are strictly regulated
in specific international instruments. We will first look at the general principles guiding this area of law before
moving on to look at the regulations on methods of combat and lastly the means of combat.

Basic reading
Dieter Fleck, The Handbook of InternationalHumanitarian Law. (New York City: Oxford University
Press, 2008) Chapter 4.
Green, Chapters 7, 8, 9
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict.
(Cambridge: Cambridge University Press, 2004) Chapter 3.

Further reading
Frits Kalshoven, Arms, Armaments and International Law. Collected Courses of the Hague Academy
of International Law. Vol. 191 (1985) p. 183-326.
Frits Kalshoven, Conventional Weaponry: The Law from St Petersburg to Lucerne and Beyond. Armed
Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention. British
Institute of International and Comparative Law. Vol. 1 (1989), 251-270;
Isabelle Daoust, Robin Coupland & Rikke Ishoey, New Wars, New Weapons? The Obligations of
States to Assess the Legality of Means and Methods of Warfare. International Review of the Red Cross. Vol. 84
No. 846 (2002) p. 345-362.
W. D. Fenrick, New Developments in the Law Concerning the Use of Conventional Weapons in
Armed Conflict. Canadian Yearbook of International Law. Vol. 19 (1981) p. 229-256.
Hans-Peter Gasser, For Better Protection of the Natural Environment in Armed Conflict: A Proposal
for Action. American Journal of International Law. Vol. 89 No. 3 (1995) p. 637-644.
L. C. Green, Lawful and Unlawful Weapons and Activities. Essays on the Modern Law of War. (New
York: Transnational Publishers, 1985) p. 151-173.
Stuart Maslen and Peter Herby, An International Ban on Antipersonnel Mines: History and Negotiation
of the Ottawa Treaty. International Review of the Red Cross. No, 325 (1998).
<https://www.icrc.org/eng/resources/documents/article/other/57jpjn.htm>
Robert Mathews, The 1980 Convention on Certain Conventional Weapons: A Useful Framework
Despite Earlier Disappointments. International Review of the Red Cross. Vol. 83 No. 844 (2001) p. 991-1010.
Robert Matthews and Timonthy McCormack, The Influence of Humanitarian Principles in the
Negotiation of Arms Control Treaties. International Review of the Red Cross. No. 834 (1999).
<https://www.icrc.org/eng/resources/documents/misc/57jpty.htm>

Learning outcomes
By the end of this chapter you will be able to:
Understand the application of principles of ius in bello to the choice of means and methods of combat

57
 Explain the principle of neutrality in ius in bello
List the considerations that apply when choosing how to attack opponents
Explain the legal framework regulating the use of conventional and non-conventional weapons

7.1 The Importance of Means and Methods of Warfare

The evolution of IHL as a branch of international law saw states simultaneously beginning to promote positive
obligations designed to balance considerations of humanity with military necessity. Objectives such as
protecting the civilian population, avoiding unnecessary suffering to combatants, limiting the effects of combat
to the parties to the conflict and avoiding excessive environmental damage led to imposing limits to the liberty
to wage war. All of these objectives should be taken into consideration when selecting the means (weapons) and
methods (tactics) of combat. As we have already discussed the first objective (distinction and proportionality) in
previous chapters, we will focus on the second, third and fourth objective in this chapter.
This analysis is mostly context-specific, as a particular weapon might be lawful in some circumstances but not
in others. For example, as the ICRC notes in its Comment on GC API 51(4)(c), ‘in most cases the indiscriminate
character of an attack does not depend on the nature of the weapons concerned, but on the way in which they are
used. However, as stated above, there are some weapons which by their very nature have an indiscriminate
effect’. Consequently, every armed attack necessarily requires a consideration of all four of the elements we’ve
acknowledged above, while also taking into account the particular context.

7.2 Avoiding Unnecessary Suffering and the Martens Clause

Unlike the principle of distinction, which protects only civilian persons and objects, the prohibition of causing
unnecessary suffering is directed towards protecting combatants from harm that is superfluous. This is based on
the fact, as discussed in previous chapters, that the purpose of using force is to gain an advantage over enemy
forces. Once that advantage has been gained, there is no legitimacy in inflicting further harm or damage.
For example, if an enemy soldier can be neutralized (without killing him) by attacking him with regular
ammunition there is no need to use expanding ammunition that will also neutralize him but cause additional
injury or suffering. As Dinstein helpfully points out, this kind of consideration applies to antipersonnel weapons
only, as those designed to attack vehicles or buildings by nature may cause excessive damage to combatants
nearby, so to apply this distinction would be inoperable.
Thus, from the first Hague Rules, the international community has developed strong regulations to protect
combatants from unnecessary suffering by banning or limiting the use of a plethora of weapons. This now
includes ‘dum dum bullets’, lasers used to blind targets, and biological and chemical weapons. These rules are
so important that the ICJ stated in its Nuclear Weapons opinion that, along with distinction, they form the
“cardinal principles” of ius in bello:
78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following.
The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction
between combatants and non-combatants; 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.
According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In
application of that second principle, States do not have unlimited freedom of choice of means in the weapons
they use.
The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included
in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has
proved to be an effective means of addressing the rapid evolution of military technology. A modern version of
that clause is to be found in Article 1, paragraph 2, of Additional Protocol 1 of 1977, which reads as follows:
"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."
In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain
types of weapons either because of their indiscriminate effect on combatants and civilians or because of the
unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve

58
legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian
law, a threat to engage in such use would also be contrary to that law.
79. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it
in its Judgment of 9 April 1949 in the Corfu Channel case (1. C. J. Reports 1949, p. 22), that the Hague and
Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all
States whether or not they have ratified the conventions that contain them, because they constitute
intransgressible principles of international customary law (Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226) paras. 78 an 79).
From this passage several conclusions can be drawn. The first is that the principles of distinction and
prevention of unnecessary suffering are firmly rooted in customary law, and therefore bind states even if they
are not parties to international instruments. The second is that when selecting means and methods, states should
always take into consideration not only positive law but also customary law and the Martens clause, which was
discussed in Chapter I. The consideration of all these sources will lead to an answer regarding whether a
particular use of force is legal.
Activity: Using the principles you’ve learned so far, consider the legality of the following actions:
Shooting at a wounded soldier who is armed but unable to shoot
The practice of secondary strikes or “double tapping” objectives of drone strikes

7.3 Avoiding Affecting Neutral States

In ius in bello, as in ius ad bellum, belligerent parties have a duty not to affect third states through their actions,
a duty known as the principle of neutrality (not to be confused with the duty of neutrality that guides the action
of third parties towards the belligerents). Article 1 of Hague Regulation V succinctly defines this duty by noting
that the ‘the territory of neutral Powers is inviolable’.
The ICJ, quoting one of the state submissions in the Nuclear Weapons case, defines it in the following manner:
88. …The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces
into neutral territory, or attacks on the persons or ships of neutrals. Thus: 'the territory of neutral powers is
inviolable' (Article 1 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, concluded on 18 October 1907); 'belligerents are bound to respect the
sovereign rights of neutral powers . . .' (Article 1 to the Hague Convention (XIII) Respecting the Rights and
Duties of Neutral Powers in Naval War concluded on 18 October 1907), 'neutral states have equal interest in
having their rights respected by belligerents . . .' (Preamble to Convention on Maritime The principle so
circumscribed is presented as an established part of the customary international law.
89. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict,
international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental
character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions
of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used
(Nuclear Weapons case (1996) paras. 88 and 89).
In ius in bello, this means that belligerents have a duty to make sure that the effects of any conflict do not affect
third states. In the case of means and methods of combat, this means that there is a positive obligation not to use
weapons or tactics in a way that might affect other states. For example, artillery fire against an international
border shared with a neutral state might cause harm to its population or armed forces, and is therefore unlawful.
Similarly, in a situation where gas weapons are not specifically prohibited, their use along state borders would
also be unlawful as winds might carry their effects into nearby neutral states. The principle of neutrality is
therefore strictly linked with the principle and duty of precaution as any possible breach should result in
terminating the attack altogether or selecting other means that do not risk a violation.
Can you find any possible breaches of the duty of neutrality in the report on NATO attacks in Yugoslavia
studied earlier?
Activity: Consider the legality of the following attacks under the principle of neutrality:
a) An infantry attack against a building located 2 miles from the border of a neutral state
b) A high-precision airstrike against a building located next to the embassy of a neutral state in the
enemy’s capital

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c) An artillery attack against a military base occupied by both the enemy forces and that of a neutral third
state
d) Dispersing pamphlets warning all foreign nationals to abandon a tourist area that will shortly come
under attack

7.4 Avoiding Excessive Environmental Damage

A fourth objective is to avoid causing unnecessary environmental damage, as stated in API:
Article 55. Protection of the natural environment
1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe
damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or
may be expected to cause such damage to the natural environment and thereby to prejudice the health or
survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.
It is understood that the regular course of military operations may cause damage to the environment, but that
factor is to be taken into account when calculating proportionality, as we saw earlier in Chapter 6. The ICJ noted
in its Nuclear Weapons opinion that
… States must take environmental considerations into account when assessing what is necessary and
proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements
that go to assessing whether an action is in conformity with the principles of necessity and proportionality
(Nuclear Weapons case (1996) p. 226, para. 30).
This prohibition on causing unnecessary environmental damage was partially reflected in Article 8(b)(iv) of the
Rome Statute, which criminalizes ‘widespread, long-term and severe damage to the natural environment’ during
international armed conflict. In the context of International Criminal Law, it must also be understood to penalize
only acts where the damage was caused willfully. Further prohibitions are included in the 1977 Convention on
the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1109 UNTS
151).
Activity: What is your critical assessment of the differences between the classic and the ICC definition of
prohibited environmental damage? What is the legality of an attack causing disproportionate damage to the
environment that doesn’t fulfill all of the necessary elements of the ICC definition (willfulness; widespread,
long-term and severe)?
Activity: Consider the legality of the following actions:
a) Attacking an enemy tank in an open field with depleted uranium ordnance
b) Diverting the path of a river to deprive a military garrison of water
c) Attacking dams to flood a command center downriver
d) Unleashing a genetically modified fungus that attacks the enemy’s poppy plantations, which provide
most of their income through the opium trade

7.5 Particular Means and Methods

Having discussed the general outlines of the topic, we will now focus on particular means and methods of
combat. The general rule is that which we’ve seen before: ‘the right of belligerents to choose methods or means
of warfare is not unlimited’ (35 API, 22 Hague). Regarding the selection of means and methods of warfare in
order to protect civilians the obligation also has a specific content in Article 57(2)(a)(ii) of API.
7.5.1 Particular methods of combat
In general, a method is a way of conducting combat operations. It is prohibited if it violates any of the principles
of IHL. Therefore, the definition is quite adaptable and depends on the circumstances of each particular use of
force, as an act that is legal in some circumstances will not be so in others. For example, aerial bombardment is
generally lawful but if conditions of visibility make it impossible to adequately distinguish the target and avoid
killing civilians, the same act becomes unlawful. The ICRC notes in its compilation of Customary IHL other
examples including ‘considerations about the timing of attacks, avoiding combat in populated areas, the
selection of means of warfare proportionate to the target, the use of precision weapons and target selection’.

60
International Criminal Law provides useful guidance as it indicates many different types of conduct that when
occurring in combat give rise to individual responsibility. In fact, many of the advances in ius in bello in the last
century have been the product of International Criminal Law tribunals, which have served to apply ius in bello
prohibitions to individual uses of force. As a product of this relationship, all war crimes are breaches of IHL.
However, the opposite is not true: not every breach of IHL is grave enough to constitute a war crime. War
crimes and breaches of IHL might also have different elements that render them slightly different, but that
doesn’t mean that each is not a prohibited conduct within its own field. Note, for instance, the case mentioned
above regarding damage to the environment. Damage to the environment that is disproportionate to the
objective will constitute a breach of IHL but if it is not also willful, widespread, long term and severe, it will not
be a war crime for the purposes of the Rome Statute.
Note, for instance, the provisions of Article 8(2)(a) and (b) of the Rome Statute. Which of them would you
classify as prohibiting certain methods of combat?
7.5.2 Particular means of combat
The regulation of means of combat is much more extensive. Weapons are generally more identifiable and
frequently less context-specific. However, there are ample examples of weapons banned in international law
without exception and other weapons whose lawful use depends on the particular context.
As in the topic of prohibited means, many specific prohibitions are supported by International Criminal Law.
For instance, Article 8(2)(b)(xx) of the Rome Statute criminalizes the employment of ‘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’ (United Nations
General Assembly. Rome Statute of the international Criminal Court. (17 July 1998)). This and other norms
serve to indicate the legality of different weapons.
1. Conventional weapons
Conventional weapons are those that are not non-conventional, that is, all of those that are not of a chemical,
nuclear or biological nature. All conventional weapons are in principle legal unless there is a particular
prohibition on their use due either to a complete ban or a ban under particular circumstances, which includes
considerations of ius in bello (proportionality, distinction, neutrality, etc.).
While few states ratified the 1980 Conventional Weapons Convention, which bans particular conventional
weapons, its provisions may still carry weight as non-signatory parties are still bound by similar customary
rules. There are many different treaties covering the use, production and trade of various conventional weapons
(i.e. the Arms Trade Treaty, whose text was adopted in 2013 dealing with disarmament rather than ius in bello).
However, we will focus only on a select few, noting that not all of them are widely ratified and therefore may
not always reflect customary law.
A number of examples of absolute bans have been noted. Conventional weapons subject to complete
prohibitions include poison (Hague 1899 and 1907, Nuremberg IMT 1946, ICTY, Rome Statute, and has its
own regulations independently from chemical weapons, which we will see in the next section), certain
projectiles that explode, flatten upon entry, or are otherwise excessive when used against personnel (St
Petersburg, Hague 1899), and weapons that incorporate fragments which are undetectable to X-rays and thus
impede medical treatment (CCW PI), another good example of weapons causing unnecessary suffering. Anti-
personnel land-mines are banned but only to parties of the Ottawa Convention.
Other conventional weapons may or may not be legal depending on the circumstances. Traps are banned in
certain cases (CCW PII) as are antipersonnel land-mines for non-state-parties to the Ottawa Convention (under
certain conditions in CCW PII 1980, which excludes mines used against vehicles that do not activate against
personnel and can be handled safely by enemy personnel); and naval mines unless they comply with strict
restrictions (Hague VIII, Corfu). Torpedoes are prohibited unless they have mechanisms allowing them to
become inert if they miss their mark (Hague VIII). Incendiary weapons are lawful unless used directly against
civilians or near a concentration of them when dispersed by air (CCW PIII 1980). Blinding laser weapons
(CCW PIV 1980) are banned if the effect is permanent, and constitute a clear example of a weapon causing
unnecessary suffering.
What do you think is the use of having a partial prohibition of land-mines in the CCW now that the Ottawa
Convention is in force? Analyze this in the light of Mathews’ article.

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Activity: Analyze the legality of the following:
a) A state not party to either the Ottawa Convention or CCW PII laying anti-personnel land-mines
b) Utilizing artillery bombardment against combatants within a populated area
c) Deploying antipersonnel ammunition of 200 grams that explodes within the body of the target
d) Using expanding rounds in law enforcement operations in peacetime

2. Nonconventional weapons
Non-conventional weapons include chemical, biological, radiological and nuclear weapons. Their illegality in
international armed conflicts has been reiterated in many different instruments due to the fact that by their very
nature they have indiscriminate effects (e.g. a cloud of chemical gas can shift direction due to the wind and
covers large areas without distinction; and diseases will attack combatants and civilians alike) and cause
unnecessary suffering. The ICRC noted in its Comment on Article 51(4)(c) of API that
…there are some weapons which by their very nature have an indiscriminate effect. The example of
bacteriological means of warfare is an obvious illustration of this point. There are also other weapons which
have similar indiscriminate effects, such as poisoning sources of drinking water.
Prior developments in chemical weapons include the (non-binding) Hague Declaration concerning Asphyxiating
Gases. Poisonous gases were banned by the 1925 Geneva Gas Protocol in response to the massive use of
chemical weapons during trench warfare in WWI. The Chemical Weapons Convention went further, prohibiting
the use, production and stockpiling of such weapons, while setting a timeline for the destruction of existing
stockpiles.
Biological weapons were also covered by the 1925 Protocol and by the Biological Weapons Convention, which
prohibits the development, production, stockpiling, acquisition and retention of microbial and biological agents
or toxins to be used for warfare or instruments used to deliver them.
Activity: Consider the legality of the following under ius in bello:
a) Using teargas to control a riot in a POW camp
b) Using herbicide to destroy the enemy’s poppy fields, which they use to finance their armed efforts
c) The reproduction of anthrax spores for medical research
d) The production of anthrax spores in military laboratories to produce vaccines for soldiers

3. Nuclear weapons
The use of nuclear weapons raises many different issues that are unique to them, which were discussed by the
ICJ in the Nuclear Weapons Advisory Opinion. Due to the complexity of the Opinion, we will be discussing
nuclear weapons in the next chapter.

4. Development of new weapons

API also includes a provision for the development of new weapons:
35. In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High
Contracting Party is under an obligation to determine whether its employment would, in some or all
circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High
Contracting Party.
As new weapons are being constantly developed, it would be impossible for international law to try to regulate
each and every new development, so previous pledges to analyze weapons before using them have been made
since the St Petersburg Declaration. Therefore, this clause is useful in indicating that states also have an
individual duty to make sure that new weapons comply with ius in bello.
Evidently, this poses several questions including how far should the analysis go and whether this article can
become the basis of a supervisory regime. The ICRC Commentary notes that
The determination of legality required of States by this article is not intended to create a subjective standard.
Determination by any State that the employment of a weapon is prohibited or permitted is not binding
internationally, but it is hoped that the obligation to make such determinations will ensure that means or
methods of warfare will not be adopted without the issue of legality being explored with care.

62
It should also be noted that the article is intended to require States to analyse whether the employment of a
weapon for its normal or expected use would be prohibited under some or all circumstances. A State is not
required to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways
that would be prohibited (International Commmittee of the Red Cross. Commentary on Protection of the civilian
population. <https://www.icrc.org/ihl/COM/470-750065>).
The implementation of this obligation is obviously difficult as many states are understandably unwilling to open
their military research facilities to supervision. How do Daoust and his co-authors try to solve this issue?

Reminder of learning outcomes

Upon completion of this section you should be able to:
Understand how principles of ius in bello regulate the choice of means and methods of combat
Understand the content and scope of the principle of neutrality in ius in bello
Explain the process behind choosing means and methods of combat in particular situations
Critically analyze the framework governing the use of conventional and non-conventional weapons

QUESTIONS
1. Assume that during US/United Kingdom operations in Afghanistan, recourse was made to the use of
landmines. Consider the legal implications.
2. How effective are the limitations placed by humanitarian law on the development of new weapons?
3. Your advice is sought regarding the use of the following in an international armed conflict:
a) non-lethal riot control gas to flush enemy combatants out of caves;
b) laser rangefinders which can cause blindness;
c) laser weapons which target eyesight;
d) tracer bullets.

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Chapter 8: Nuclear Weapons

Introduction
Previous seminars have covered the various considerations that states must consider when selecting means and
methods of combat. Nuclear weapons, due to their very nature, pose specific challenges to this regime, which is
why they have drawn so much attention from states and the international legal community.
In this chapter, we will be studying the legality of the use or threat of use of nuclear weapons by focusing on the
ICJ’s Advisory Opinion on Nuclear Weapons. This Opinion is rather complex in its content and it includes
several individual opinions which are relevant for our analysis. Therefore, we will also be focusing on the
statements of individual judges. Overall, this seminar will consist of a debate on whether the use of nuclear
weapons can ever be lawful and, if so, under what circumstances.

Basic reading
Legality of the Threat or Use of Nuclear Weapons: Request by the General Assembly of the United
Nations (Advisory Opinion) [1996] ICJ Rep 226. Including individual opinions of the judges, particularly the
Opinion of Judge Weeramantry, Fleischer, Koroma and Higgins (but also others), since they contain interesting
analysis on the subject, some of them challenging the conclusions reached by the majority. See also the
pleadings in this case on the ICJ website.

Further reading
Various Authors. Nuclear Weapons. International Review of the Red Cross. No. 316 (1997).
<https://www.icrc.org/eng/resources/international-review/review-316-nuclear-weapons/index.jsp>
A.V. Lowe, Shock Verdict: Nuclear War May or May Not be Unlawful. Cambridge Law Journal. Vol.
55 No. 3 (1996) p. 415-417.
Michael Matheson, The Opinions of the INternational Court of JUstice on the Threat or Use of Nuclear
Weapons. American Journal of International Law. Vol. 91 (1997) p. 417-435.
Nicholas Grief, Legality of the Threat or Use of Nuclear Weapons. International and Comparative Law
Quarterly. Vol. 46 No. 3 (1997) p. 681-687.
Richard Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter.
American Journal of International Law. Vol. 91 (1997) p. 65-78.
Laurence Boisson de Chazournes and Philippe Sands, International Law, the ICJ and Nuclear
Weapons. Cambridge: Cambridge University Press, 1999.
Depo Akande, Nuclear weapons, unclear law? Deciphering the Nuclear Weapons Advisory Opinion of
the International Court. British Yearbook of International Law. Vol. 68 No. 1 (1997) p. 165-217.
United Nations General Assembly. General Assembly Resolution 1653, Declaration on the Prohibition
of Use of Nuclear Thermonuclear Weapons. A/RES/1653 (Nov 1961).
United Nations General Assembly. General Assembly Resolution 2660, Treaty on the Prohibition of
the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-bed and the Ocean
Floor and in the Subsoil Thereof. A/RES/2660 (Dec 1970).
United Nations General Assembly. General Assembly Resolution 2936, Non-Use of Force in
INternational Relations and Permanent Prohibition of the Use of Nuclear Weapons. A/RES/2936 (Nov 1972).
Ian Brownlie, Some Legal Aspects of the Use of Nuclear Weapons. International and Comparative
Law Quarterly. Vol. 14 No. 2 (1965) p. 437-451.
Captain Mary Eileen E. McGrath, Nuclear Weapons: a Crisis of Conscience. Military Law Review:
Contemporary INternational Legal Issues. Vol. 107 (1985) p. 191-254.
M.I Shaker, The Evolving International Regime of Nuclear Non-Proliferation. Collected Courses of the
Hague Academy of International Law. Vol. 321 (2006) p. 9-202.

64
 Tokyo District Court. Ryuichi Shimoda et al v. The State. Japanese Annual of International Law No. 8
(1964) p. 212.
Richard Falk, The Shimoda Case: A Legal Appraisal of the Atomic Attacks on Hiroshima and
Nagasaki. American Journal of International Law. Vol. 59 No. 4 (1965) p. 759-793.
Docs on the Israeli destruction of Iraq's nuclear reactor 20 ILM 963 (1981);

William Hearn, The International Legal Regime Regulating Nuclear Deterrence and Warfare. British
Yearbook of International Law. Vol. 61 No. 1 (1990) p. 199-248.

Learning outcomes
By the end of this chapter you should be able to:
Understand the regime covering the use of nuclear weapons in international law
Critically discuss the main issues raised in the ICJ’s Opinion
Explain the applicability of human rights law during armed conflict
Understand the problem of non liquet
Explain the issues raised by individual opinions

8.1 The Issue of Nuclear Weapons in International Law

The attacks on Hiroshima and Nagasaki in 1945 remain to this day the only uses of nuclear weapons in armed
conflict. After a brief period of US monopoly on these weapons, the Soviet Union and other states also
developed their own atomic arsenal. Due to their very nature, including the incredible power they unleash, the
use of nuclear weapons during armed conflict is seen as problematic. However, despite extensive bans regarding
the use of many different types of weapons due to their nature and effects, there is no treaty explicitly
prohibiting the use of nuclear weapons.
Yet the principles of ius in bello seek to be flexible enough to be able to adapt to any situation. The rise of
nuclear weapons lead to the establishment of an international regime where direct conflict between nuclear
powers was held in check by deterrence. Such developments have served to shape states’ responses to nuclear
weapons, an issue that affects many legal questions in the international arena and tests the very edges of ius in
bello and International law as a whole.
8.1.1 The use of nuclear weapons against Japan in WWII
Even though it is the only recorded use of nuclear weapons during war, the legality of the attacks against
Hiroshima and Nagasaki has never been brought before international courts. The District Court of Tokyo,
however, in deciding a compensation claim against the Japanese Government, evaluated the legality of these
attacks in the Shimoda case:
Of course it is possible that the aerial bombardment of a military objective will result also in the destruction of
non-military objectives or in casualties to non-combatants; this is not unlawful as long as it is an inevitable
result incidental to the aerial bombardment of a military objective. Nevertheless, it remains true that aerial
bombardment directed at a non-military objective or without distinction between military objectives and non-
military objectives (the so-called 'blind aerial bombardment of an undefended city ') is not permissible in the
light of the principle enunciated above.
As already stated, the power of destruction and damage of the atomic bomb is tremendous, and even such a
small-scale bomb as the one dropped on Hiroshima and Nagasaki discharges energy equivalent to 20,000 tons of
conventional bombs. It is clear that the explosion of an atomic bomb of such power of destruction will bring
about the almost complete destruction of a medium-sized city, to say nothing of the distinction between military
objectives and non-military objectives. Thus, the aerial bombardment with an atomic bomb of an undefended
city, if not of a defended city, should be regarded as tantamount to a blind aerial bombardment and as such
contrary to international law of the time.
It is beyond dispute that Hiroshima and Nagasaki were not cities which were resisting an attempt at occupation
by land forces at that time. It is also clear from what has been stated that neither of these cities fell within the
definition of a defended city, since they were not in immediate danger of occupation by the enemy, even though
both were defended with anti-aircraft and other guns against air raids, and had military installations. Further, it
was well known that some 330,000 civilians in Hiroshima and some 270,000 civilians in Nagasaki had their

65
homes there, even though both cities also had what may be called military objectives, such as armed forces,
military installations and munitions factories. In these circumstances, it is proper to conclude that the aerial
bombardment with an atomic bomb of both Hiroshima and Nagasaki was an illegal act of hostilities under
international law as it existed at that time, as an indiscriminate bombardment of undefended cities. This is so
since aerial bombardment with an atomic bomb, even if its target is confined to military objectives, brings about
the same result as a blind aerial bombardment because of the tremendous destructive power of the bomb (Tokyo
District Court. Ryuichi Shimoda et al v. The State. Japanese Annual of International Law No. 8 (1964) para. 7).
Activity: Which principles of ius in bello inform the District Court’s decision? What are the applicable rules of
international law? Remember that the facts of the case took place before the advent of the Geneva Conventions.
Under Falk’s analysis, do they adequately reflect existing law at the time?

8.1.2 The framework behind nuclear weapons

As more states developed their own nuclear weapons, the international community sought to avoid their
proliferation and their use in certain circumstances. For example, some states subscribed treaties instituting
Nuclear Weapons Free Zones; non-nuclear states pledged not to develop nuclear weapons while nuclear states
pledged not to use nuclear weapons against them. Other efforts included limiting their deployment in particular
locales, such as Antarctica, the seabed or space, ensuring the reduction of nuclear stockpiles and preventing
their proliferation.
As these norms deal mostly with arms control and not ius in bello, we will not be looking at them in depth.
However, it is important to note that the development of this extensive framework indicates that while the
international community is very much aware of the risks posed by nuclear weapons, it has stopped short of
prohibiting their production or use.
Activity: Locate the source for the following norms:
a) Prohibition of deploying nuclear weapons on the moon
b) Prohibition of deploying nuclear weapons in Latin America
c) Prohibition of atmospheric nuclear testing
8.1.3 The ICJ’s Advisory Opinion on nuclear weapons
After several decades of debate and two attempts at bringing nuclear weapons to the Court’s attention (in the
cases of nuclear tests in Australia v France and New Zealand v France) the Court was asked to determine the
legality of their use or threat of use upon request of the World Health Organization and the UN General
Assembly. Although the petition by WHO was ultimately rejected, the second petition was received and the
Court had the opportunity to look at the different issues regarding nuclear weapons. The Court looked at the
issue from four different perspectives: human rights law, environmental law, the UN Charter and IHL.
1. Human rights law
The Court studied whether the use of nuclear weapons violated the right to life as protected by the International
Covenant on Civil and Political Rights. The Court found that although the protection against arbitrary
deprivation of life is non-derogable, ‘the test of what is an arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities’.
Therefore, the Court noted that although human rights law applies in armed conflict, in case of contradictions
between that regime and ius in bello the latter should prevail as lex specialis. This was also the Court’s
reasoning in the Wall Opinion, which we have already addressed.
What do you think of this balance between IHL and IHRL? Take into account what you learned in Chapter 1.
2. Environmental law
Some states claimed that the effects of radiation caused by nuclear weapons constituted damage to the
environment prohibited by environmental treaties, an issue we previously referred to when discussing
proportionality. The Court noted that
...the Court is of the view that the issue is not whether the treaties relating to the protection of the environment
are or are not applicable during an armed conflict, but rather whether the obligations stemming from these
treaties were intended to be obligations of total restraint during military conflict.

66
The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of
its right of self-defence under international law because of its obligations to protect the environment.
Nonetheless, States must take environmental considerations into account when assessing what is necessary and
proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements
that go to assessing whether an action is in conformity with the principles of necessity and proportionality
(Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. para. 30).
This reading therefore also tries to seek a balance between military necessity and environmental concerns. What
is the content and scope of the related norm in API?
3. The UN Charter
The Court specified that the provisions of the Charter relating to the use of force do not say anything regarding
nuclear weapons. Therefore, they do not represent a relevant norm in this issue:
These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons
employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including
nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become
lawful by reason of its being used for a legitimate purpose under the Charter (Nuclear Weapons case (1996)
para. 39).
How does this view compare with Brownlie’s opinion on the matter?
4. Violation of treaties and principles of IHL
During submissions, even some nuclear states agreed that IHL was applicable to nuclear weapons. That meant
that, unlike some claims made earlier, these weapons were not outside the scope of ius in bello. However, there
were doubts regarding exactly which norms should be applicable.
When analyzing the different instruments, the Court noted that:
‘it does not seem […] that the use of nuclear weapons can be regarded as specifically prohibited on the basis of
the […] Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or
the 1925 Protocol", further noting that the ‘Court does not find any specific prohibition of recourse to nuclear
weapons in treaties expressly prohibiting the use of certain weapons of mass destruction’ (Nuclear Weapons
case (1996) para. 55-56).
Article: Do you agree with this assessment? Try to find a legal basis on those instruments to support the claim
that they prohibit nuclear weapons. Take into account Brownlie’s opinion on this subject.
Finding no applicable prohibition, the Court referred to the principles of IHL regarding the use of force, such as
the principle of distinction and the prohibition of unnecessary suffering. The Court established their
applicability:
86. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of
humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and
1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear
weapons and all conventional arms. However, it cannot be concluded from this that the established principles
and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion
would be incompatible with the intrinsically humanitarian character of the legal principles in question which
permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those
of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the
rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been
advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly
rejected as an argument against the application to them of international humanitarian law […]
87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be
doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons (Nuclear
Weapons case (1996) para. 86-87).
Once it has established that the principles of IHL apply to these weapons, the Court’s assessment of this
application indicates that ‘In view of the unique characteristics of nuclear weapons, to which the Court has
referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.’
What would your reading of the Court’s opinion up to this point indicate? What is your impression of what the
sense of the decision will be?

67
Activity: The potential violation of the principle of neutrality when using a nuclear weapon is affirmed by the
Court but the situation where this might happen is not spelled out in the arguments. Can you formulate one
situation where this might happen?
8.1.4 The exception
At this point, the Opinion points towards the incompatibility of nuclear weapons with ius in bello. However, the
arguments that follow change the sense of the decision and establish several situations that we have to consider:
Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty
that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable
in armed conflict in any circumstance.
96. Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its
right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can
it ignore the practice referred to as "policy of deterrence", to which an appreciable section of the international
community adhered for many years. The Court also notes the reservations which certain nuclear-weapon States
have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and
Rarotonga, and also under the declarations made by them in connection with the extension of the Treaty on the
Non-Proliferation of Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the
Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive
conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of
self-defence, in which its very survival would be at stake (Nuclear Weapons case (1996) para. 95-96).
This short entry changes the whole decision. It suggests that, while the use or threat of use of nuclear weapons
would be illegal, in the case of “state survival” the legality or illegality of this action is not clear (there is no
applicable law, known as a non liquet). This, obviously, introduces a new element that was not discussed
extensively and that has led to extensive discussions as to what it means exactly.
Does the survival of the state relate to its existence as an international entity or its physical existence? Is the
survival of the state in danger when its government is in risk of being overthrown? These and other questions
reflect the uncertainty caused by the Court’s opinion in this judgment. The declarations and opinions of the
judges lend some further clarification on the debates inside the Court and how each judge would’ve changed the
decision.
Judge Weeramantry
The basis of the opinion is that the use of nuclear weapons is illegal under any circumstance. He believes that
the Geneva Gas Protocol and Article 23 Hague IV forbid the use of nuclear weapons. He also believes that once
nuclear weapons have been used, ius in bello applies and therefore all its principles apply. This reveals a
contradiction in the Court's judgment where the judges conclude the use of nuclear weapons would be illegal
under IHL but at the same time it would not necessarily be so in cases where the very existence of a state is in
jeopardy.
In response to technical arguments, Judge Weeramantry notes that, in the current state of nuclear weapons, the
risks of radiation, accuracy and limiting of effects ensure that in any case the risks inherent to the bomb persist.
Likewise, he argues that the policy of deterrence, where fear has kept the world from war, is not really effective
as there have been multiple conflicts during the nuclear age and that the Court cannot support an international
order upheld by fear.
Do you agree with Weeramantry’s opinions regarding the policy of deterrence? Why?
Judge Fleischhauer
The judge believes there is incertitude regarding a balance to be found between the rules of IHL and the inherent
right to self-defense in the Charter, and that this point has not been clearly settled in the opinion. The judge
believes that the option not to prohibit nuclear weapons when the survival of the state is at risk is recognition
that no legal system can impose self-abandonment of its subjects. Deterrence can also be seen as customary.
Compare Fleichhauer’s opinion on deterrence with that of Weeramantry. Also, note the observations regarding
self-abandonment. Do you agree with his assertion that the Opinion indicates that no state should be destroyed
rather than to resort to any means – including nuclear weapons – to fight for its survival?

68
Judge Higgins
Judge Higgins believes that the Court was not clear in its analysis of whether the use of nuclear weapons was
lawful as its conclusion that it wouldn't be so "in general" was incomplete and did not clearly outline the Court's
arguments nor the application of existing law to resolving this issue. The issue of non liquet regarding the
legality/illegality of the weapons under extreme circumstances ignored that there are always sources in
international law that will allow the judge to decide based on existing principles even if there is no positive rule.
One of the most interesting considerations is that of non liquet. Do you agree that the Court’s decision amounts
to a non liquet? Consider the reasoning behind the Shimoda case: ‘It can naturally be assumed that the use of a
new weapon is legal as long as international law does not prohibit it.’ This sentence reflects the principle of
legality in international law: states have the freedom to do anything that is not forbidden to them, a reasoning
known as the Lotus principle, following the precedent of the Permanent Court of International Justice in S.S.
Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7), which is one of the main pillars of
international law.
How might the application of the Lotus principle solve the judgment’s non liquet?
Judge Koroma
Perhaps the most interesting opinion is that of Judge Koroma. He agreed with the Court's findings that the use of
nuclear weapons would generally be illegal in all its aspects but without the stated exception. He therefore
favored an absolute prohibition stemming from the nature of the weapons themselves. He also believes existing
prohibitions regarding the use of poison gas weapons cover nuclear weapons.
The crucial aspect of this opinion is the analysis of the concept of ‘survival of the state’. Koroma disagrees with
this new concept as a distinct principle. While it may indicate a shallow form of the doctrine of necessity, the
survival of a state, as the inherent right to self-defense, exists within and not outside the Charter and IHL.
Although Koroma believes that the application of the doctrine of the state of necessity to the ‘survival of the
state’ is limited by ius in bello, if it is indeed a new category that exists outside those limits – as the decision
seems to indicate – then it might be construed as it is understood in general international law (for example, in
the Court’s decisions in the Gabcykovo-Nagymaros and Wall cases), allowing for acts that are otherwise illegal
under extreme circumstances. This might serve to explain the Court’s reasoning in the final Opinion.

Reminder of Learning Outcomes

Upon completion of this section you should be able to:
Understand the general regime covering the use of nuclear weapons in international law
Explain the main issues raised in the ICJ’s Opinion
Outline the applicability of human rights law during armed conflict
Understand the problem of non liquet in the Court’s decision as well as offer possible solutions
Explain the issues raised by individual opinions

QUESTIONS
1. Is the threat or use of nuclear weapons in any circumstance permitted under international law?
2. How is the issue of non liquet relevant to the legality of the use of nuclear weapons?
3. Is the legality of these weapons affected by first-use considerations? (i.e. first use of nuclear weapons
is illegal, but responding with nuclear weapons to a previous attack of the same kind is not)
4. What does ius ad bellum have to say about deterrence through the threat of massive nuclear
retaliation?

69
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