Methods of Warfare: January 2017

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Methods of Warfare
Chapter · January 2017

DOI: 10.1093/law/9780198855309.003.0010
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Gloria Gaggioli Nils Melzer

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This is a pre-edited draft of a chapter to be published in : Ben Saul and Dapo Akande (eds), Oxford Guide
to International Humanitarian Law, Oxford, Oxford University Press, forthcoming. This draft was written
in 2017.
OXFORD GUIDE TO IHL, EDITED BY BEN SAUL AND DAPO AKANDE

CHAPTER 9: METHODS OF WARFARE
By Gloria Gaggioli and Nils Melzer
Introduction
Current world affairs are plagued by a plethora of conflicts, many of them marked by methods of
warfare displaying a shocking disregard for the established principles of international humanitarian
law (IHL). In some contexts, it seems that methods such as direct attacks against civilians and
unarmed or wounded combatants, indiscriminate attacks, perfidious suicide-bombings, and the
destruction and pillage of cultural objects have become commonplace, and it seems to have been
forgotten that even wars have limits.
The so-called “Hague Law”, which regulates the use of means and methods of warfare so as to
mitigate, as much as possible, the “calamities of war”, 1, is the oldest branch of international
humanitarian law (IHL). Its basic tenet can be summarized in three fundamental maxims, namely:
(1) that “the only legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy” 2 and that therefore, in pursuing this aim, both (2) “the
right of the Parties to the conflict to choose methods or means of warfare is not unlimited” 3 and (3)
“[t]he civilian population and individual civilians shall enjoy general protection against dangers
arising from military operations”. 4 The first maxim expresses the basic principle of military
necessity, which limits the permissibility of means and methods of warfare to what is actually
required for the achievement of a legitimate military purpose, whereas the second and the third
provide the basis for the prohibition of means and methods of warfare that are of a nature to cause
1
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint
Petersburg, 29 November / 11 December 1868 (hereafter: St. Petersburg Declaration).
2
Ibid.
3
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts, Geneva, 8 June 1977 (hereafter: AP I), Art. 35 (1). See also Regulations concerning
the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter: 1907 Hague Regulations), art. 22.
4
AP I, Art. 51 (1).
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superfluous injury or unnecessary suffering to combatants5 and, respectively, for the principle of
distinction, 6 which prohibits not only direct attacks against civilians and the civilian population,
but also indiscriminate means and methods of warfare. Both the prohibition of unnecessary
suffering and the principle of distinction are regarded as “cardinal principles” of IHL by the
International Court of Justice 7 and, in this basic form, are universally accepted as part of customary
international law. 8
Beyond the restatement of these fundamental maxims and principles, however, a more
comprehensive discussion on methods of warfare immediately runs into thorny questions: How
should the notion of “methods of warfare” be defined and, in particular, how should it be
distinguished from the related twin notion of “means of warfare”? Are the generic prohibitions of
indiscriminate attacks and of superfluous injury/unnecessary suffering sufficiently specific in terms
of detail, and sufficiently broad in terms of scope, to regulate each and every method of warfare?
What are the main methods of warfare that have been more specifically regulated in customary and
treaty IHL? Are there differences as to how IHL regulates methods of warfare in international and
non-international armed conflicts?
Once these preliminary issues have been explored, the objective of this chapter will be to outline
the current state of the law regulating methods of warfare. For the purposes of this article, the rules
of IHL regulating methods of warfare will be distinguished according to their protective purpose,
i.e. those aiming to protect civilians and the civilian population based on the principle of
distinction9 will be discussed separately from those aiming to protect combatants based on the
prohibition of unnecessary suffering or other principles of IHL. For each method of warfare, the
questions analyzed will generally be the following: When and how has the method been restricted
or prohibited in customary or treaty law? Does recourse to the restricted/prohibited method of
warfare give rise to individual criminal responsibility? Why has the method been
restricted/prohibited (ratio legis)? What is the exact content and meaning of the
5
1907 Hague Regulations, art. 23 e); AP I, art. 35 (2); J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary
International Humanitarian Law (Cambridge: Cambridge University Press, 2005), Rule 70. (Hereafter; ICRC
Customary IHL Study). See also St. Petersburg Declaration.
6
AP I, Art. 48; ICRC Customary IHL Study, Rule 1.
7
ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, para. 78.
8
ICRC Customary IHL Study, Rules 1 and 70.
9
Note: Some of the methods used specifically against civilians are already dealt with under Chapter 7 on the Basic
Principles in the Conduct of Hostilities. These will therefore be mentioned but not necessarily much elaborated.
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restriction/prohibition? Are there open questions regarding the interpretation of the elements of the
restriction/prohibition? Are there recent examples of contemporary practices and policies which
may be relevant to the rule in question?
A concluding section will summarize our findings and attempt a cursory outlook as to their
relevance of contemporary trends, such as the advent and seamless integration of new technologies
into the arsenal, strategies and tactics of armed and security forces throughout the world.
1. Defining and regulating methods of warfare
1.1. Defining methods of warfare
The notion of “methods of warfare” is mentioned several times in Additional Protocol I to the
Geneva Conventions. 10 It is usually employed together with its twin notion “means of warfare”. In
Additional Protocol II dealing with non-international armed conflicts, where States party were
hesitant to use the term “warfare”,11 and on one occasion in Additional Protocol I,12 treaty law also
refers to “methods of combat” instead. Generally, however, States preferred the term “warfare” to
that of “combat”, the latter having been proposed in the original draft text prepared by the ICRC,
because they felt “combat” might be construed more narrowly than “warfare”.13 For the purposes
of the present analysis, both terms will be used synonymously.
In any event, neither the concept of “methods of warfare” nor that of “methods of combat” has
been defined in treaty law and there was no attempt to do so in the discussions preceding the
adoption of the Additional Protocols to the Geneva Conventions.14 The Commentaries to the
Additional Protocols simply state that while the term “means” of warfare refers to weapons, the
10
The recent IHL provisions using the term methods of warfare: Title of Part III, Section I of AP I; art. 35(1-2-3) AP
I (Basic Rules); art. 36 AP I (New Weapons); art. 51(4b, 4c and 5a) AP I (indiscriminate attacks); art. 54(1) AP I
(starvation); art. 55(1) AP I (protection of the natural environment); art. 57(2aii) AP I (principle of precautions).
11
The ICRC Commentary on Article 14 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (hereafter AP II) specifies that
the Conference “considered inappropriate to refer to warfare in an instrument concerning non-international armed
conflicts”. See Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949 (Geneva: ICRC, 1987), para. 4799. (Hereafter: ICRC Commentary 1987). This point raises the
question whether methods of warfare are supposed to be more restrictive in non-international armed conflicts.
12
See Art. 51, para. 4 (b) and (c) AP I using the terms “methods of combat” as an element of the definition of
“indiscriminate attack”.
13
ICRC Commentary 1987 on art. 35 AP I, para. 1401.
14
ICRC Commentary 1987 on art. 14 AP II, para. 4799.
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term “methods” of warfare generally refers to the way in which weapons are used.15 This distinction
between “means” and “methods” of warfare is important because any weapon (means), i.e. even
lawful ones, can be used in an unlawful manner (method), whereas the use of weapons that have
been prohibited because of their inherent characteristics is unlawful regardless of the manner in
which they are being employed. 16 Nevertheless, the interpretation of the term “methods of warfare”
as proposed in the Commentaries is too restrictive given that even methods not necessarily
involving the use of a weapon, such as starvation,17 improper use of emblems, 18 perfidy19 or denial
of quarter20 are either expressly described as “methods of warfare” or as “method of combat”, or
are systematically included in Part III, Section I of Additional Protocol I on “Methods and Means
of Warfare” (Arts 35-42 API).21
A partly more convincing interpretation is proposed in the book “How does Law Protect in War”,
where methods of warfare are defined as: “(i) the way and manner in which the weapons are used;
(ii) any specific, tactical or strategic, ways of conducting hostilities that are not particularly related
to weapons and that are intended to overwhelm and weaken the adversary” 22. This definition has
the merit of highlighting that methods of warfare are more than just the manner in which weapons
are used. It is less convincing, however, in that it requires that methods of warfare must be
“intended to overwhelm and weaken the adversary”. This element seems to be overly restrictive,
given that any hostile act, irrespective of its magnitude, intensity or target, can employ a method
of warfare subject to restrictions under IHL.
It is here submitted that the notion of methods of warfare should be understood more accurately as
referring to any particular manner of using weapons or of otherwise conducting hostilities,
irrespective of permissibility or appropriateness, and ranging from the use of emblems, flags,
uniforms and weapons or other equipment to the choice of targets for attack.
15
ICRC Commentary 1987 on art. 35 AP I, para. 1402; on art. 51 AP I, para. 1957.
16
N. Melzer, International Humanitarian Law – a Comprehensive Introduction (Geneva: ICRC, 2016), p. 104.
17
Art. 54 (1) AP I, Art. 14 AP II.
18
Arts. 38 and 39 AP I.
19
Art. 37 AP I.
20
Art. 40 AP I.
21
Not very helpful in this respect is the rather loose use of the term “weapon” in the ICRC Commentary 1987, when
they state that: “Starvation is referred to here as a method of warfare, i.e., a weapon to annihilate or weaken the
population” (para. 2090) or “Starvation is prohibited as a method of combat, i.e., when it is used as a weapon to destroy
the civilian population” (para. 4799). (Emphasis added).
22
M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War? (Geneva: ICRC, 2011), p. 280.
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1.2. Regulating methods of warfare
Methods of warfare are regulated, on the one hand, by general principles applicable to all military
operations and, on the other hand, by special provisions governing a number of specific methods
of warfare. This section is focusing on general principles, more particularly on the principle of
distinction and the prohibition of superfluous injury or unnecessary suffering.
The principle (or “basic rule”) of distinction has attained undisputed customary status in both
international and non-international armed conflicts.23 It prohibits not only direct attacks against
civilians but also indiscriminate attacks as a method of warfare. While the prohibition of direct
attacks against civilians is fairly straightforward and identical in both international and non-
international armed conflicts, the concept of indiscriminate attacks may require some further
explanation. In essence, indiscriminate attacks are those, which are of a nature to strike military
objectives and civilians and civilian objects without distinction, either because they are not or
cannot be directed at a specific military objective, or because their effects cannot be limited as
required by IHL.24 Particularly devastating examples of indiscriminate attacks were the so-called
“carpet bombing” campaigns of World War II, in which entire areas containing both military
objectives and civilians and civilian objects were treated as a single military objective and attacked
without distinction.25 Another example of indiscriminate attacks are those which may be expected
to cause incidental harm to civilians or civilian objects that would be excessive in relation to the
concrete and direct military advantage anticipated and, therefore, violate the IHL principle of
proportionality.26 While the principle of proportionality is extremely important, its
operationalization gives rise to difficult questions. When can incidental civilian damage be
considered as excessive? How does the value of a human life compare to that of a military
objective? Should the safety of a belligerent’s own forces be taken into account as part of the
military advantage assessment? Should the lives of enemy combatants that are hors de combat be
taken into account although the rule in Additional Protocol I refers to civilians only?
Finally, it should be noted that intentionally attacking civilians or civilian objects, as well as
willfully launching an indiscriminate attack affecting the civilian population or civilian objects in
23
AP I, Art. 48; ICRC Customary IHL Study, Rule 1.
24
AP I, Art. 51 (4) and (5); ICRC Customary IHL Study, Rules 11-13.
25
Melzer, above n. 16, at 86.
26
AP I, Art. 51 (5)(b).
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the knowledge that such attack will cause excessive loss of life or injury to civilians, or excessive
damage to civilian objects, amounts to a war crime.27
The second general principle restricting methods of warfare is the prohibition of superfluous injury
or unnecessary suffering. It is one of the rare principles, if not the only, that protects combatants
and other legitimate targets during the conduct of hostilities. Surprisingly, the prohibition of
methods of warfare that cause superfluous injury or unnecessary suffering was first introduced in
Additional Protocol I, whereas the 1868 Saint Petersburg Declaration and 1907 Hague Regulations
only deal with means – but not with methods – of warfare causing superfluous injury or unnecessary
suffering. 28 The prohibition now belongs to customary law governing both international and non-
international armed conflicts and the use of such methods is considered as amounting to a war
crime in the Rome Statute29. The key issue is to define the meaning of “superfluous” or
“unnecessary”.30 In 1997, the Health Operations Division of the ICRC launched its SIrUS Project
attempting to define what “unnecessary suffering” means from a medical perspective.31 According
to the resulting study, a specific means or method of warfare should be considered as inflicting
superfluous injury or unnecessary suffering if it: a) would cause a specific disease, a specific
abnormal physiological state, a specific abnormal psychological state, a specific and permanent
disability or specific disfigurement, or b) would imply a field mortality of more than 25% or
hospital mortality of more than 5% or c) would inflict grade 3 wounds as measured by the Red
Cross wound classification or d) would cause effects for which there is no well-recognized and
proven treatment. However, this proposal failed to gather the support of States and, therefore,
remained dead-letter. The inevitability of serious permanent disability can nevertheless be regarded
27
Art. 85§3a)b) AP I; Rome Statute of the International Criminal Court, 17 July 1998, Article 8(2)(b)(i)(ii)(iv) and
8§2e)i). (Hereafter: ICC Statute).
28
ICRC Customary IHL Study, Commentary on Rule 70.
29
ICC Statute, Art. 8(2)(b)(xx).
30
The St Petersburg Declaration also mentions arms rendering death inevitable, although this wording has
unfortunately not been adopted by other IHL treaties. It is submitted that methods of warfare rendering death inevitable
are equally prohibited.
31
R. M. Coupland (ed.), The SIrUS Project, Towards a Determination of Which Weapons Cause “Superfluous Injury
or Unnecessary Suffering” (Geneva: ICRC, 1997). Available at: www.loc.gov/rr/frd/Military_Law/pdf/SIrUS-
project.pdf
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as a relevant factor, which was taken into account, most notably, for the prohibition of blinding
laser weapons32 and of antipersonnel landmines33.34
Although treaty law does not define the meaning of the terms “unnecessary” and “superfluous”, it
can safely be said that the principle requires a balance between considerations of military necessity
and of humanity. 35 As a minimum, the rule prohibits the infliction of suffering that has no military
purpose.36 The ICJ in its Advisory Opinion on nuclear weapons considered that inflicting
superfluous injury or unnecessary suffering means to cause combatants “harm greater than that
unavoidable to achieve legitimate military objectives”. 37 In this conception of the principle, it is
thus not so much the degree of the inflicted suffering that makes a means or method of warfare
unlawful, but that the inflicted suffering exceeds the harm that is unavoidable, i.e. necessary, to
achieve a legitimate military objective.38 When making this assessment, the availability of
alternative – less harmful – means and methods of warfare must therefore be taken into account.39
However, in serving as a basis for absolutely outlawing means and methods of warfare that may
well be capable of delivering military advantage and even victory - such as poison, blinding laser
weapons and chemical weapons - the prohibition of unnecessary suffering and superfluous injury
quite evidently reflects not only considerations of military necessity but also of proportionality
with respect to the harm inflicted on enemy combatants.40 Thus, the fact that Article 51 (5) b) of
32
Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention Prohibiting Certain Conventional
Weapons), Geneva, 13 October 1995.
33
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on
their Destruction, Oslo, 18 September 1997 (so-called “Ottawa Convention”).
34
See ICRC Customary IHL Study, commentary on Rule 70 and 86.
35
36
ICRC Customary IHL Study, commentary on Rule 70.
37
38
Contra: In the context of the Nuclear Weapons Advisory Opinion requested by the WHO before the ICJ, see the
Letter dated 19 June 1995 from the Honorary Consul of Solomon Islands in London, together with written comments
of the Government of Solomon Islands, para. 4.6: “The use of nuclear weapons necessarily causes “superfluous injury”
to its victims. (…) Proponents of the legality of the use of nuclear weapons (…) suggest that there is no unnecessary
suffering where there exists a reasonable link between the military advantage gained and the damage caused to the
enemy. (See e.g. United Kingdom (…), Netherlands (…), United States (…)). This approach disregards fundamental
principles of humanitarian law. (…) The concept of “unnecessary suffering” does not depend on what a particular army
judges to be good or bad in terms of military advantage, but on an objective determination of the victims’ injury. It is
their suffering which is at issue, not the interest of obtaining military advantage.”
39
ICRC Customary IHL Study, commentary on Rule 70 and related practice. See, in particular, US, Air Force
Pamphlet (1976), para. 6-3b (1) and (2). See also UK, written statement submitted to the ICJ, Nuclear Weapons
advisory opinion, 16 June 1995, p. 50, para. 3.64.
40
See, for instance, in this sense: US, Air Force Pamphlet (1976), para. 6-3b (1) and (2) : “This prohibition against
unnecessary suffering is a concrete expression of the general principles of proportionality and humanity.”
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Additional Protocol I focuses on the protection of the civilian population and does not consider the
harm inflicted on able-bodied combatants, does not mean that this particular provision exhaustively
expresses all considerations of proportionality made in IHL governing the conduct of hostilities.
Rather, these provisions of IHL (i.e. prohibition of unnecessary suffering and superfluous injury
and the prohibition of disproportionate attacks) point towards an understanding of proportionality
as a general principle of law that governs all resort to force and all causation of harm in all
circumstances, including the harm inflicted on able-bodied enemy combatants during the conduct
of hostilities.
Based on the prohibition of superfluous injury or unnecessary suffering certain weapons (i.e. means
of warfare) have been prohibited, such as blinding laser weapons, expanding bullets and weapons
that injure by means of non-detectable fragments.41 Fewer examples come to mind when it comes
to methods of warfare that cause superfluous injury or unnecessary suffering. 42 The denial of
quarter is one of the few methods of warfare that indisputably inflicts unnecessary suffering
because it excludes the possibility of weakening enemy forces by merely capturing or injuring -
rather than killing - its combatants. Arguably, the same applies to scores of Iraqi soldiers needlessly
being buried alive in their trenches by US forces in the early hours of the allied ground attack that
ended the First Persian Gulf war.43
Although the principle of distinction and the prohibition of superfluous injury/unnecessary

suffering are well-established, it remains controversial whether or not they can directly prohibit
specific means and methods of warfare without a more specific treaty provision or customary rule
to that effect.44 The predominant and more convincing view, which was also expressed by the ICJ
in its Nuclear Weapons Opinion, 45 is that the prohibitions of indiscriminate attacks and of means
and methods causing superfluous injury or unnecessary suffering constitute generic and legally
41
Melzer, above n. 16, at 110. For additional examples, see ICRC Customary IHL Study, commentary on Rule 70.
42
See ICRC Customary IHL Study, commentary on Rule 70, which states that “States articulating [the prohibition of
methods of warfare that cause superfluous injury or unnecessary suffering] do not give any examples of methods of
warfare that would be prohibited by virtue of this rule.”
43
R. Kolb, Ius in bello: Le droit international des conflits armés, Précis (Bâle, Helbing & Lichtenhahn, 2003), at 139,
para. 311. For a newspaper article on this attack, see Eric Schmitt, “U.S. Army Burried Iraki Soldiers Alive in Gulf
War”, The New York Times, 15 September 1991.
44
For instance, France and Russia held in the context of the Nuclear Weapons Advisory Opinion before the ICJ that a
weapon can be prohibited by virtue of one or the other of the said cardinal principles only if States prohibit the weapon
by a treaty. See: Russian Federation, written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, p.
12; French Republic, written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, p. 42.
45
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binding standards by which all means and methods of warfare have to be measured, even in the
absence of specific treaty provisions or recognized customary rules relevant to the particular means
or method in question.46 In essence, therefore, the fact that a specific method of warfare is not
prohibited or restricted by a specific treaty provision does not necessarily mean that this method is
lawful. This conclusion receives further support in the longstanding customary principle expressed
in the Martens Clause, according to which, where treaty law fails to provide a specific rule, “both
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”.47
A final general issue is whether there are any differences in the regulation of methods of warfare
depending on whether the conflict is of international or non-international character. There are only
few treaty provisions applicable in non-international armed conflicts that expressly address
methods of warfare. While common article 3 focuses on the protection of persons hors de combat,
it allows more specific conclusions as to the permissibility of methods of warfare, albeit only by
implication. Additional Protocol II merely recognizes the duty to protect the civilian population
against the dangers arising from military operations and prohibits a number of specifically
mentioned methods of warfare such as starvation48, the denial of quarter49, the recruitment of
children into armed forces50, as well as deportations51. However, neither treaty contains a general
prohibition on means and methods of warfare that are of a nature to cause superfluous injury or
unnecessary suffering.
This omission should not be understood as an intended “gap” in legal protection but, at least in the
case of Additional Protocol II, as an incidental result of significant text cuts carried out on the
original draft in the very late hours of negotiations, with the declared aim of producing a simplified
46
Melzer, above n. 16, at 110-111; Kolb, above n. 43, at 138-139, para. 308; Sassòli, Bouvier, Quintin, above n. 22,
at 33-34; ICRC Customary IHL Study, commentary on Rules 70 and 71.
47
Art. 1(2) of AP I. See also the preamble of AP II for a shorter version of the Martens clause and the preamble of the
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980. For previous versions of the
Martens clause, see: Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899,
preamble (§9); Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907,
preamble (§8); Art 63/62/142/158 of the 1949 Geneva Conventions.
48
Art. 14 AP II.
49
Art. 4§1 AP II.
50
Art. 4§3 c) AP II.
51
Art. 17 AP II.
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text acceptable to States.52 As “cardinal principles” of customary international law, the principle of
distinction, the prohibition of unnecessary suffering and superfluous injury, and the Martens Clause
govern the lawfulness of methods of warfare in any armed conflict, including those of a non-
international nature.53 The Appeals Chamber of the ICTY asserted in the Tadic case that
“[e]lementary considerations of humanity and common sense make it preposterous that the use by
States of weapons prohibited in armed conflicts between themselves be allowed when States try to
put down rebellion by their own nationals on their own territory. What is inhumane, and
consequently proscribed, in international wars cannot but be inhumane and inadmissible in civil
strife”.54 The same must hold true, mutatis mutandis, with respect to methods of warfare.
Indeed, it is here submitted that methods of warfare that are prohibited in international armed
conflicts based on legal principles expressing basic humanitarian considerations can be presumed
to be equally prohibited in non-international armed conflicts.
2. Methods of warfare that concern primarily the protection of combatants
This section deals with prohibited/restricted methods of warfare concerning primarily the
protection of combatants; and more specifically with 1) the protection of persons hors de combat;
2) the prohibition of denial of quarter and 3) the restriction of deception. Unless specified
otherwise, the arguments made and the conclusions reached equally concern both international and
non-international armed conflicts. In the latter context, therefore, the term “combatant” will be
used in its functional sense and thus as covering not only members of the armed forces of a
belligerent State, but also members of organized non state armed groups with a continuous combat
function.55
2.1. Protection of persons hors de combat
The protection of persons hors de combat against direct attack and abuse of power is a well-
established rule of customary and treaty IHL.56 The prohibition of direct attack against those hors
52
53
AP II, Preamble; ICRC Customary IHL Study, Rules 70 and 71.
54
ICTY, The Prosecutor v. Dusko Tadić a/k/a “Dule”, Decision on the Defence Motion for interlocutory appeal on
jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1-AR72, para. 119.
55
N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law (Geneva: ICRC, 2009), at 27. (Hereafter: ICRC DPH Guidance).
56
Instructions for the Government of Armies of the United States in the Field, 24 April 1863, Article 71 (hereafter:
Lieber Code); Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August
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de combat is explicitly recognized in the 1907 Hague Regulations and in Additional Protocol I. 57
Regarding non-international armed conflicts, it is expressly recognized in Article 3 common to the
Geneva Conventions, which protects those taking no active part in the hostilities, including those
placed “hors de combat” against violence to life and person and other forms of abuse. It has also
been codified in article 4 of Additional Protocol II, albeit in slightly different words.58 The
prohibition is considered to constitute a customary rule applicable in both international and non-
international armed conflicts.59 Willfully making a person the object of attack in the knowledge
that he or she is hors de combat, thus causing his or her death or serious injury to body or health,
is a war crime.60 The ratio legis for the protection of persons hors de combat is that persons hors
de combat no longer pose a military threat and that, therefore, hostile acts against them could not
be justified based on any reasonable balance between considerations of military necessity and
humanity. Accurately understood, the reason for the protection granted by IHL is not that the killing
of persons hors de combat could never offer a military advantage but rather that, absent any hostile
act on the part of those hors de combat, their killing would be regarded as inhumane or, more
precisely, disproportionately harmful compared to the potential military benefit. Just like the
prohibition on unnecessary suffering and superfluous injury, and probably at least in part a
concretization of that rule, the hors de combat protection is based on generic considerations not
only of necessity but also of proportionality. Arguably, the protection of those hors de combat
could also be derived from a broad understanding of the principle of distinction as offering
protection against attack not only to civilians but also to combatants hors de combat.
A person is hors de combat if he or she is in the power of an adverse Party, clearly expresses an
intention to surrender or is incapable of defending him- or herself because of unconsciousness,
shipwreck, wounds or sickness, and, in all those cases, abstains from any hostile act and does not
attempt to escape.61
1874, Article 13(c) (Hereafter: Brussels Declaration); The Laws of War on Land. Oxford, 9 September 1880 (hereafter
Oxford Manual), Article 9(b).
57
1907 Hague Regulations, Art. 23(c); AP I, Article 41(1).
58
See in this sense ICRC Customary IHL Study, commentary on Rule 47.
59
ICRC Customary IHL Study, Rule 47.
60
See Article 85(3)(e) of AP I. See also ICC Statute, Art. 8(2)(b)(vi). These provisions deal with international armed
conflicts. It is submitted that it should also be considered a crime in non-international armed conflicts.
61
AP I, Art. 41 (1) and (2); ICRC Customary IHL Study, Rule 47.
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Persons are “in the power” of a belligerent party not only when they are captured, but also when
they are otherwise within the effective physical or material control of that party.62 The ICRC
Commentaries even argue that, in the context of an air strike, combatants might be “in the power
of” the air force operators if at some point they are at their mercy and thus defenseless.63 A less
extreme and, arguably, more convincing argument against attacking defenseless enemy forces that
are unable to surrender could be made based on the absence of military necessity in conjunction
with the imperatives of humanity. 64
Persons can express their intention to surrender in various ways, depending on the circumstances.
In land warfare, persons would commonly surrender by laying down their arms and by raising their
hands or white flag.65 Regarding persons parachuting from aircraft in distress, attacks are
prohibited for the duration of their descent. 66 Upon reaching the ground in territory controlled by
an adverse Party, they have to be given an opportunity to surrender before being attacked, unless
it is apparent that they are engaging in a hostile act.67 This protection does not apply to airborne
troops whose descent constitutes part of their hostile operations.68
What happens if a wounded or surrendering soldier on the battlefield resumes fighting or tries to
escape? According to the ICRC Commentaries, force can be used against such a soldier but only
as a last resort and after a warning appropriate to the circumstances69. The legal reasoning leading
to such an assertion is however far from clear. Article 41 Additional Protocol I does not seem to
support these restrictions. It merely states that a person enjoys the protection of persons hors de
combat provided that he/she abstains from any hostile act and does not attempt to escape. This
would logically mean that the protection of persons hors de combat ceases as soon as they commit
a hostile act or attempt to escape, and that therefore they become subject to direct attacks under the
62
ICRC Commentary 1987, paras. 1611-1617.
63
Ibid, para. 1612.
64
See also, most notably, ICRC DPH Guidance, Section IX, pp. 77-82.
65
ICRC Commentary 1987, paras 1618-1619. See also ICRC Customary IHL Study, commentary on Rule 47.
66
AP I, Art. 42 (1); ICRC Customary IHL Study, Rule 48.
67
AP I, Art. 42 (2).
68
AP I, Art. 42 (3).
69
ICRC Commentary 1987 on article 41 AP I, para. 1613: “From the moment that combatants have fallen ‘into the
hands’ of the adversary, the applicability of the Third Convention can no longer be contested. They are prisoners of
war and should never be maltreated, but should always be treated humanely. If they make an attempt to escape or
commit any hostile act, the use of arms against them is once more permitted within the conditions prescribed in the
Third Convention. The same applies a fortiori for adversaries who benefit only from the safeguard of Article 41 without
being recognized as prisoners of war. In fact, the proviso at the end of the present paragraph specifically provides it.”
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hostilities paradigm.70 On the one hand, it seems clear that once a person hors de combat has been
taken into custody, any force used in response to a hostile act or attempted escape must be
absolutely necessary to prevent it and strictly proportionate to the danger resulting from such act
or escape. Accordingly, the Third Geneva Convention provides that the “use of weapons against
prisoners of war, especially against those who are escaping or attempting to escape, shall constitute
an extreme measure, which shall always be preceded by warnings appropriate to the
circumstances”. 71 On the other hand, persons prima facie hors de combat, but who attempt an
escape or engage in hostile acts before being taken into custody can hardly benefit from a restricted
use of force regime comparable to that applicable to POWs. In such a situation, engaging in hostile
acts would even generally amount to feigning surrender or other protected status with the intent of
attacking the enemy by surprise. Both variants would amount to prohibited combat by resort to
perfidy and would not justify any restriction of the normal targeting regime.
When enemies have been captured “under unusual conditions of combat which prevent their
evacuation”, Additional Protocol I expressly requires that “they shall be released and all feasible
precautions shall be taken to ensure their safety”. 72 Thus, if enemy combatants indicate an intention
to surrender or otherwise become hors de combat, they must be captured or, if their evacuation is
not possible, released. Although this rule might seem difficult to comply with, in particular in the
context of small-scale operations in enemy territory, treaty law makes unequivocally clear that,
even in this unusual conditions of combat, hors de combat protection remains absolute and non-
derogable. 73
2.2. Prohibition of the denial of quarter
Another longstanding rule that is related to the protection of persons hors de combat is the
prohibition of denial of quarter.74 It is explicitly recognized in the 1907 Hague Regulations and in
Additional Protocol I (international armed conflicts)75 and in Article 4 of Additional Protocol II
70
71
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Art. 42. (Hereafter: GC
III). See also ICRC Commentary 1987, para. 1613 and footnote 17.
72
AP I, Art. 41 (3).
73
74
Lieber Code, Art. 60; Brussels Declaration, Art. 13(d); Oxford Manual, Art. 9(b).
75
1907 Hague Regulations, Art. 23 (d); AP I, Art. 40.
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(non-international armed conflicts).76 Moreover, this rule is considered customary law77 and its
violation amounts to a war crime78 in both international and non-international armed conflicts. The
ratio legis for the prohibition of denial of quarter is comparable to that of the hors de combat
protection, albeit without any aspects of the principle of distinction. As stated above,79 it is a
derivate of the prohibition of superfluous injury or unnecessary suffering and a codified expression
of the maxim that the purpose of military hostilities in warfare is not to kill combatants, but to
defeat the enemy, even if this requires the killing of combatants.80 The prohibition of denial of
quarter, too, balances the potential military advantage of leaving no survivors against the
requirements of humanity and, deciding in favor of the latter, expresses generic considerations not
only of military necessity but also of proportionality.
According to the rule, “(i)t is prohibited to order that there shall be no survivors, to threaten an
adversary therewith or to conduct hostilities on this basis”.81 The prohibition of denial of quarter
also makes it illegal to deliberately refuse or render impossible an enemy’s surrender or to put to
death those who are hors de combat.
Given that persons hors de combat are already protected, the added value of the prohibition of
denial of quarter lies in: 1) the prohibition of threatening or ordering that there shall be no survivors,
and 2) the restraints it imposes on the conduct of hostilities, namely in the prohibition of conducting
hostilities on the basis that there shall be no survivors.82
The prohibition of threatening or ordering that there shall be no survivors concerns primarily
military commanders, given that they are in a position to issue such threats or orders.83 It is rare in
international law that the mere threat of committing a violation is prohibited in itself, the other two
examples being the prohibition of “the threat or use of force in international relations” 84 and the
76
AP II, Art. 4(1).
77
78
ICC Statute, Art. 8(2)(b)(xii) (for international armed conflicts) and ICC Statute, Art. 8(2)(e)(x) (for non-
international armed conflicts).
79
See above p. 11.
80
See also the St. Petersburg Declaration, which prohibited the use of explosive projectiles, which “uselessly aggravate
the sufferings of disabled men, or render their death inevitable”.
81
AP I, Art. 40. See also 1907 Hague Regulations, Art. 23 (d), and ICRC Customary IHL Study, Rule 46.
82
ICRC Commentary 1987, para. 1598. Article 23(c) of the 1907 Hague Regulations prohibits the killing and wounding
of a combatant hors de combat separately from the denial of quarter.
83
84
Charter of the United Nations, San Francisco, 26 June 1945, art. 2(4).
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IHL-prohibition to threaten to attack the civilian population with the primary purpose to spread
terror.85 The most likely rationale for outlawing the mere threat of a prohibited conduct is to avoid
the escalatory effect of such threats. Thus, threatening the enemy with a general refusal to accept
his surrender could potentially incite the threatened opponent to discard IHL and to resort to any
lawful or unlawful means or method of warfare to overcome his enemy.
The prohibition of conducting hostilities on the basis that there shall be no survivors essentially
requires that an adversary endeavoring to surrender must be given the opportunity to do so to the
extent circumstances reasonably permit.86 On the one hand, therefore, methods calculated to
completely exterminate opposing forces would be in breach of this rule.87 Surprise attacks or
employing means and methods of warfare that are incapable of taking prisoners, on the other hand,
do not necessarily amount to denial of quarter. In air warfare, for instance, it may not always be
feasible to accept surrender. Nevertheless, a policy or practice of conducting “follow up strikes” or
“double strikes”– i.e. “attacks that occur after a first one and that may intentionally or incidentally
kill wounded persons as well as rescuers” 88
– would be unlawful both under the prohibition of
killing persons hors de combat and other protected persons as well as under the prohibited method
of warfare of denial of quarter. It is also questionable whether conducting warfare exclusively
through means and methods of warfare that are incapable of taking prisoners – e.g. drone strikes –
would be permissible under the prohibition of conducting hostilities on the basis that there shall be
no survivors.
2.3. Deception
2.3.1. The prohibition of perfidy or treachery
Already the Hague Regulations of 1907 prohibited to “kill or wound treacherously individuals
belonging to the hostile nation or army”. 89 Additional Protocol I broadens this rule by prohibiting
85
AP I, art. 51, para. 2.
86
87
Ibid.
88
“Double strikes” or “follow up strikes” are “attacks that occur after a first one and that may intentionally or
incidentally kill wounded persons as well as rescuers”. S. Raymond Ouigou and J. Grignon, “Attacks Against
Wounded, Sick, Shipwrecked and Medical Personnel, as Well as the Challenges Posed by 'Follow Up Strikes”, in S.
Kolanowski (dir.), Proceedings of the Bruges Colloquium, Vulnerabilities in Armed Conflicts: Selected Issues, 14th
Bruges Colloquium 17-18 October 2013, No. 44, Autumn 2014, at 12.
89
1907 Hague Regulations, Art. 23(b). For earlier prohibitions, see : Lieber Code, Art. 101; Brussels Declaration, Art.
13(b); Oxford Manual, Art. 8(b).
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the use of perfidy to kill, injure or capture an adversary. 90 Although Art. 3 common to the Geneva
Conventions and Additional Protocol II do not contain a similar provision, the prohibition of
perfidious killing, injury and capture is considered customary IHL in both international and non-
international armed conflicts. 91 Under the ICC Statute, “killing or wounding treacherously” an
adversary – but not perfidious capture – constitutes a war crime in both international and non-
international armed conflicts.92
According to the rule, perfidy denotes “acts inviting the confidence of an adversary to lead him to
believe that he is entitled to, or is obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that confidence”. 93 Relevant examples would
include the feigning: (a) of surrender, (b) of an intent to negotiate under a flag of truce, (c) of
incapacitation by wounds or sickness, (d) of civilian, non-combatant status, and (e) of protected
status by the use of the signs, emblems or uniforms of the United Nations, of neutral or other non-
belligerent States or of the protective emblem of the red cross, red crescent or red crystal. It should
be noted that IHL does not prohibit perfidy per se, but only to kill, injure or capture an adversary
by resort to perfidy. The resort to perfidy for other purposes, such as intelligence gathering or
sabotage, are not covered by the prohibition of perfidy but may be subject to other restrictions,
such as the prohibition on misuse of emblems, signs and uniforms. 94 Moreover, the prohibition of
perfidy does not prohibit ruses of war, i.e. “acts which are intended to mislead an adversary or to
induce him to act recklessly but which infringe no rule of international law applicable in armed
conflict and which are not perfidious because they do not invite the confidence of an adversary
with respect to protection under that law”. 95 Examples of permissible ruses include the use of
camouflage, decoys, mock operations and misinformation,96 Mere intelligence gathering by
undercover units disguised as civilians also does not amount to prohibited perfidy. 97 If captured,
90
AP I, art. 37.
91
92
ICC Statute, Art. 8(2)(b)(xi) (for international armed conflicts); ICC Statute, Art. 8(2)(e)(ix) (for non-international
armed conflicts). See also: API, art. 85(3)(f).
93
AP I, art. 37.
94
See below, section 2.3.2.
95
API, art. 37.
96
AP I, art. 37. See also ICRC Customary IHL Study, rule 57.
97
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however, such personnel would lose their prisoner of war status and, therefore, could be prosecuted
as spies under the domestic legislation of the capturing State.
Thus, the ratio legis of the prohibition of perfidy or treachery is to safeguard the good faith of the
belligerents as far as it concerns their duty to afford, or their own entitlement to, protection under
IHL. Indeed, any uncertainty on the part of belligerents as to the reliability and truthfulness of
behavior or circumstances affording civilians or opposing combatants protection under IHL would
seriously jeopardize their respect for the principle of distinction.
2.3.2. Misuse of emblems, signs and uniforms-
IHL not only prohibits the use of perfidy to kill, injure or capture an adversary, but also more
generally the misuse of recognized distinctive emblems and emblems of nationality. In particular,
it is prohibited to make improper use of emblems, signs or signals provided for in IHL, such as the
distinctive emblem of the red cross, red crescent or red crystal, or to deliberately misuse other
internationally recognized protective emblems, signs or signals, including the flag of truce, the
protective emblem of cultural property (downward pointed square blue shield on white ground),
the distinctive signs of civil defence (orange triangle on blue ground) and of installations containing
dangerous forces (three orange circles), and the distinctive emblem of the United Nations.98 IHL
also prohibits the use in an armed conflict of the flags or military emblems, insignia or uniforms of
neutral or non-belligerent States, whereas those of adverse parties can be used as a ruse of war,
except during direct hostile contact with the enemy, namely while engaging in attacks or in order
to shield, favour, protect or impede military operations. 99 Under the ICC Statute, “Making
improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or
of the United Nations, as well as of the distinctive emblems of the Geneva Conventions” amounts
to a war crime in international armed conflicts when it results in death or serious personal injury. 100
A well-known example of a violation of this prohibition was the use of the Red Cross emblem by
a Colombian military intelligence team in a hostage rescue mission that freed 15 hostages from the
98
AP I, art. 38; AP II, art. 12; ICRC Customary IHL Study, rules 59-61.
99
AP I, Art. 39; ICRC Customary IHL Study, rules 62 and 63.
100
ICC Statute, art. 8(2)(b)(vii).
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hands of the Revolutionary Armed Forces of Colombia (FARC) rebels in July 2008. 101 This misuse
was subsequently condemned by the ICRC.102
3. Methods of warfare primarily affecting the civilian population and civilian objects
Prohibited methods of warfare are numerous. Many of them have been discussed in other Chapters
of this book and do not need to be elaborated on here.103 This section will focus on three methods
of warfare giving rise to particularly thorny legal issues: starvation, reprisals and destruction and
seizure of property.
3.1 Starvation
Modern IHL prohibits the starvation of civilians as a method of warfare, i.e. “deliberately depriving
[them] of food”.104 Derived from the principle of distinction, this rule appears for the first time in
both Additional Protocols of 1977105 and, today, is considered customary law in both international
and non-international armed conflicts.106 The Rome Statute provides that “intentionally using
starvation of civilians as a method of warfare” is a war crime in international armed conflicts. 107
Under domestic criminal law, individuals have also been convicted for the crime of starvation in
the context of non-international armed conflicts.108
A corollary to the prohibition of starvation of civilians IHL also prohibits to attack, destroy, remove
or render useless objects indispensable to the survival of the civilian population (e.g. foodstuffs,
agricultural areas, crops, livestock, drinking water and irrigation systems) for the specific purpose
of denying them for their sustenance value to the civilian population or to the adverse party,
whether in order to starve out civilians, to cause them to move away, or for any other motive. 109
101
K. Penhaul, “Uribe: Betancourt rescuers used Red Cross”, CNN, 16 July 2008, available at
http://edition.cnn.com/2008/WORLD/americas/07/16/colombia.cross/index.html]
102
Ibid.
103
The prohibition of direct attacks against civilians and civilian objects, the prohibition of indiscriminate attacks and
the prohibition of human shields are dealt with in Chapter 7. The prohibition of methods causing widespread, long-
term and severe damage to, or involving the hostile manipulation of, the natural environment is dealt with in Chapter
xxx. The prohibition of acts or threats of violence with the primary purpose of spreading terror among civilians as well
as hostage taking is dealt with in Chapter 17.
105
AP I, art. 54 (1); APII, art. 14.
106
ICRC Customary IHL Study, rule 53.
107
ICC Statute, art. 8(2)(b)(xxv).
108
See, e.g., Croatia, District Court of Zadar, Perišić and Others case, Judgment, 24 April 1997.
109
AP I, art. 54 (2); ICRC Customary IHL Study, Rule 54.
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These prohibitions do not apply when the objects in question are used as sustenance solely for the
opposing armed forces, or otherwise in direct support of military action, unless action taken against
them may be expected to starve the civilian population or force its movement. 110 Arbitrarily
denying humanitarian access in favor of civilians in need, or arbitrarily restricting the freedom of
movement of humanitarian relief personnel also constitute violations of the prohibition of
starvation. 111
Although sieges, naval blockades and embargoes have been condemned by the international
community, 112 they are not prohibited as such, even if they cause starvation, as long as the purpose
is to achieve a military objective and not to starve the civilian population.113 At the same time, the
prohibition of starvation implies that the besieging party must either allow the inhabitants to leave
the besieged area or permit the free passage of humanitarian relief supplies. 114
For example, in the context of the Gaza blockade, which led to harsh humanitarian consequences
and “food insecurity”, the issue of starvation has been discussed by several commissions of inquiry.
Although these commissions did not reach the same conclusions regarding the lawfulness of the
blockade (in terms of proportionality and on whether it amounted to collective punishment), none
concluded that the blockade amounted to a violation of the prohibition of starvation as a method of
warfare.115 The reason for this was that the starvation of the civilian population was not the “sole”116
110
AP I, art. 54 (3).
111
See Rules 55 and 56 of the ICRC Customary IHL Study. On access to humanitarian relief, see also chapter 13 in
this book.
112
See, e.g., UN General Assembly, Res. 48/88 (1993), 49/10 (1994) and 49/196 (1994); UN Commission on Human
Rights, Res. 1994/74 (1994), para. 9; UN Commission on Human Rights, Res. 1995/76 (1995), para. 10.
113
See Commentary on Rule 53 of the ICRC Customary IHL Study. See also: France, Manuel de droit des conflits
armés, Ministère de la Défense, Direction des affaires juridiques, Sous-direction du droit international humanitaire et
du droit européen, Bureau du droit des conflits armés, 2001, at 33; New Zealand, Interim Law of Armed Conflict
Manual, DM 112, New Zealand Defence Forces, Headquarters, Directorate of Legal Services, Wellington, November
1992, paragraph 504(2), footnote 9. See also : San Remo Manual on International Law Applicable to Armed Conflicts
at Sea, 12 June 1994, §102 a). (Hereafter: San Remo Manual)
114
Commentary on Rules 53 and 55 of the ICRC Customary IHL Study. See also: Israel, Laws of War in the Battlefield:
Manual on the Laws of War, Military Advocate General Headquarters, Military School, 1998, at 59: the prohibition of
starvation “clearly implies that the city’s inhabitants must be allowed to leave the city during a siege”.
115
See notably: Human Rights Council, Report of the international fact-finding mission to investigate violations of
international law, including international humanitarian and human rights law, resulting from the Israeli attacks on
the flotilla of ships carrying humanitarian assistance, 27 September 2010, UN Doc A/HRC/15/21 (It found that the
blockade was not proportionate and constituted collective punishment); Report of the Secretary-General’s Panel of
Inquiry on the 31 May 2010 Flotilla Incident, July 2011 (hereafter: UN Appointed Palmer Commission). (It found that
the blockade was lawful). The Public Commission Appointed to Examine the Maritime Incident of 31 May 2010, Part
One, January 2011 (hereinafter: Turkel Commission’s Report). (It found that the blockade was lawful).
116
See San Remo Manual, para. 102 a), which is often considered as restating customary law.
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and not even the “main” purpose117 of the blockade. This does not, however, relieve the blockading
party from their obligation to take into account, when assessing the proportionality of incidental
harm, any starvation which may be expected to result as an unwanted consequence incidental to a
blockade.118
3.2 Reprisals
Belligerent reprisals are forcible countermeasures. They cover any “action that would otherwise be
unlawful but that in exceptional cases is considered lawful under international law when used as
an enforcement measure in reaction to unlawful acts of an adversary”.119 Traditionally, reprisals
were regarded as a method of enforcement of IHL.120 Modern IHL prohibits many types of reprisals
without however outlawing them altogether.
More specifically, the 1949 Geneva Conventions prohibit reprisals against protected persons and
objects in the power of the enemy. Thus, reprisals are prohibited against the wounded, sick and
shipwrecked, prisoners of war and civilians,121 as well as against the property of civilians in the
hands of a an adverse party to the conflict or an occupying power122 and against medical objects.123
Additional Protocol I further prohibits attacks in reprisals directed against civilians124, civilian
objects125, historic monuments, works of art or places of worship that constitute the cultural or
spiritual heritage of peoples126, against objects indispensable to the survival of the civilian
population127, against the natural environment 128 and against works and installations containing
117
See Humanitarian Policy and Conflict Research at Harvard University (HPCR), The Commentary on the
Humanitarian Policy and Conflict Research (HPCR) Manual on International Law Applicable to Air and Missile
Warfare, (Mar. 2010), at 296, art. 157(a), available at
http://ihlresearch.org/amw/Commentary%20on%20the%20HPCR%20Manual.pdf. This Manual proposed amending
the wording of article 102(a) of the San Remo Manual in order to prohibit the imposition of a naval blockade not only
if starvation of the civilian population is its “sole” but also its “main” purpose.
118
In this sense, Turkel Commission’s Report, para. 75.
119
ICRC Customary IHL Study, Commentary on rule 145.
120
See, e.g., E. de Vattel, The Law of Nations, or the Principles of Natural Law, 1797, para. 342. Reproduction
available at: http://lf-oll.s3.amazonaws.com/titles/2246/Vattel_1519_LFeBk.pdf
121
GC I, art. 46; GC II, art. 47; GC III, art. 13§3; Convention (IV) relative to the Protection of Civilian Persons in
Time of War, Geneva, 12 August 1949, art. 33. (Hereafter: GC IV).
122
GC IV, art. 33.
123
GC I, art. 46; GC II, art. 47.
124
AP I, art. 51(6).
125
AP I, art. 52.
126
AP I, art. 53.
127
AP I, art. 54.
128
AP I, art. 55.
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dangerous forces, namely dams, dykes and nuclear electrical generating stations 129. Cultural
property “of great importance to the cultural heritage of a people” is also protected against “any
act directed by way of reprisals” in the Hague Convention for the Protection of Cultural Property. 130
As these provisions make clear, reprisals against military objectives (be they persons or objects)
are not prohibited. To be lawful, however, they must fulfil a number of conditions:131
1) respond to a prior serious IHL violation (no “anticipatory/preventive” reprisal).
2) aim to induce the adversary to stop such violations (no punishment or revenge).
3) be carried out as a last resort, when no more lawful measures are available and after prior
warning has been given.
4) be proportionate to the prior violation.
5) be authorized at the highest political or military level.
6) be terminated as soon as the adversary complies with the law.
Concretely, this means, for example, that a belligerent victim of an IHL violation (e.g. the enemy
uses chemical weapons), might decide, as a last resort, to use the same prohibited weapons against
enemy soldiers in a proportionate way. Although this is disturbing from a humanitarian perspective,
this is the current state of the law.
Surprisingly, in the case of the prohibition of reprisals, treaty and customary law do not necessarily
match. While it is uncontroversial that the prohibition of reprisals against protected persons and
objects in enemy’s hands (Geneva Law) is customary,132 the same is not true for reprisals against
persons and objects in the conduct of hostilities (Hague Law). 133
129
AP I, art. 56.
130
Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, art.
4(4).
131
ICRC Customary IHL Study, commentary on rule 145 (and further references therein). For relevant jurisprudence,
see, e.g.: Special Arbitral Tribunal, Naulilaa case, Decision, 31 July 1928, pp. 1026-1027; ICJ, Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, para. 46; ICTY, Kupreškić case, Judgment, 14
January 2000, para. 535; ICTY, Martić case, Trial Judgment, 2007, paras 465-467.
132
The ICJ even considered that massacres of civilians as a form of reprisal during the Second World War were clearly
serious violations of the law of armed conflict applicable at the time. See ICJ, Jurisdictional Immunities of the State
(Germany v. Italy; Greece intervening), Judgment, 3 February 2012, para. 52.
133
ICRC Customary IHL Study, Commentary on rules 146 and 147.
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The rule prohibiting reprisals against civilians in Additional Protocol I was regarded as a novelty
when it was adopted and several States made reservations to it.134 State practice has substantially
evolved since then, 135 although some rare States maintain that reprisals against civilians in the
conduct of hostilities might be lawful in exceptional circumstances. 136 According to the ICRC
Customary IHL Study,
“it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals
against civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a right to resort
to such reprisals continues to exist on the strength of the practice of only a limited number of States, some of
which is also ambiguous. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such
reprisals.”137
This very cautious approach contradicted earlier ICTY jurisprudence. In its review of the
indictment in the Martić case in 1996 and in its judgment in the Kupreškić case in 2000, the ICTY
found that customary law prohibits reprisals against civilians in combat situations in all types of
armed conflicts.138 It invoked several arguments, some of which were more convincing than others.
It first referred to IHL provisions prohibiting reprisals. While assuming that articles 51, paragraph
6, and 52, paragraph 1, of Additional Protocol I were not declaratory of customary law, it contended
that they have subsequently been transformed into general rules of international law under the
pressure of the principle of humanity and the dictates of public conscience (Martens Clause) and
under the influence of human rights law. 139 It pointed to the customary obligation to “respect and
134
ICRC Customary IHL Study, Commentary on rule 146. For reservations, see e.g. United Kingdom, Reservations
and Declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, para. (m). See also the
more ambiguous reservations/declarations of Egypt (9 October 1992, para. 3); France (11 April 2001, para. 11);
Germany (26 May 1997, p. 167, para. 137) and Italy (27 February 1986, para. 10). The text of the reservations are
available at: https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=470
135
For instance, Egypt, France and Germany have since considered that reprisals against civilians in the conduct of
hostilities is prohibited. See: Egypt, Written statement submitted to the ICJ, Nuclear Weapons Advisory Opinion, 20
June 1995, para. 46; France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires
Juridiques, Sous-direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés,
2001, p. 85 ; Germany, Druckschrift Einsatz n. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch,
DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 4.
136
See, e.g. United States of America, Department of Defense Law of War Manual, Office of General Counsel,
Department of Defense, June 2015 (updated December 2016), pp. 1115-1116, para. 18.18.3.4. (Hereafter: US DoD
Law of War Manual 2016). See also (more narrowly) Italy, Manuale di diritto umanitario, Introduzione e Volume I,
Usi e convenzioni di Guerra, SMD – G- 014, Stato Maggiore della Difesa, I Reparto, Ufficio Adestramento e
Regolamenti, Rome, 1991, Vol. I, paras 23 and 25.
137
ICRC Customary IHL Study, Commentary on rule 146. See also rule 147.
138
ICTY, Martić case, Review of the Indictment, 8 March 1996, paras. 15-17; ICTY, Kupreškić case, Judgment, 14
January 2000, paras 527-531.
139
Kupreškić case, ibid., paras 527 and 529.
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ensure respect” for IHL “in all circumstances”, 140 even when the behaviour of the other party might
be considered wrongful. 141 It argued that Common Article 3, which belongs to customary law and
is applicable in all types of armed conflicts, 142 “prohibits any reprisals in non-international armed
conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible
with the absolute requirement of humane treatment”. 143 It insinuated that reprisals are a form of
collective punishment, which is prohibited under both treaty and customary law. 144 It also referred
to non-binding documents, such as Resolution 2675 (1970) of the UN General Assembly, 145
providing that “civilian populations, or individual members thereof, should not be the object of
reprisals”.146 This has been confirmed – albeit much less clearly and forcefully – in the later Trial
Judgment of the Martić case when the ICTY stated that “reprisals must be exercised, to the extent
possible, in keeping with the principle of the protection of the civilian population in armed conflict
and the general prohibition of targeting civilians”. 147 The International Criminal Court agreed with
the ICTY that “no circumstances would legitimize an attack against civilians even if it were a
response proportionate to a similar violation perpetrated by the other party”.148
As for the prohibition of reprisals against civilian objects during the conduct of hostilities, practice
seems even less clear.149 In the aforementioned Martić case (Trial and Appeal Judgment), the ICTY
examined whether the shelling of Zagreb could be considered a lawful reprisal as argued by the
140
Common article 1 to the 1949 Geneva Conventions. Art. 1§1 of AP I.
141
Martić case, above n. 138, para. 15.
142
ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Judgment, 27 June 1986, para. 219.
143
Sentence quoted in the Kupreškić case, above n. 138, para. 534. This quotation must be attributed to the International
Law Commission. See the Commission’s comments on the former Article 14 of the IInd Part of the Draft Articles in
Yearbook of the International Law Commission, 1995, Volume II, Part Two, A/CN.4/SER.A/1995/Add.1 (Part 2)
(State responsibility), para. 18, p. 72. For more information on common article 3 and the prohibition of reprisals, see
below.
144
Martić case, above n. 138, para. 16. Kupreškić case, above n. 138, para. 528. On the customary prohibition of
collective punishment, see Rule 103 of the ICRC Customary IHL Study.
145
UN General Assembly, Resolution 2675 (XXV), 9 December 1970.
146
Martić case, above n. 138, para. 16; Kupreškić case, above n. 138, para. 532.
147
ICTY, Martić, Trial Judgment, 2007, para 467. Although the armed conflict was probably non-international at the
time, the ICTY did not classify the situation considering that “[w]hen an accused is charged with violation of Article
3 of the Statute, it is immaterial whether the armed conflict was international or non-international in nature.” (para.
42)
148
ICC, Mbarushimana, Decision on the Confirmation of Charges, 16 December 2011, para. 143 (quoting the Martić
decision of 8 March 1996). (Note that the case concerns a non-international armed conflict, but the ICC considers that
reprisals against civilians are always prohibited irrespective of the type of armed conflict). See further below on non-
international armed conflicts.
149
ICRC Customary IHL Study, commentary on rule 147.
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Defence.150 Although it found that this shelling was illegal because the conditions justifying
reprisals had not been met (no ultima ratio, no warning), it implicitly recognized the possibility of
lawful reprisals against civilian objects irrespectively of the type of armed conflict. 151
In recent State practice, not many belligerents invoked reprisals to justify IHL violations in
international armed conflicts.152 A major exception is to be found in the context of the Iran-Iraq
war (1980-1988) when both belligerent States invoked reprisals to justify attacks against cities
belonging to the adversary. 153 The international community vigorously condemned these
justifications. 154
Regarding non-international armed conflicts, applicable IHL treaty provisions do not refer to the
concept of reprisals at all. However, common Article 3 and Article 4 of Additional Protocol II
specify that persons taking no active part in hostilities shall “in all circumstances” be treated
humanely and that acts such as violence to life and person, collective punishment, hostage taking,
outrages upon personal dignity shall remain prohibited “at any time and in any place whatsoever”.
Additional Protocol II contains similar additional absolute prohibitions.155 The ICRC, the ICTY,
as well as numerous commentators, have interpreted these provisions as implying that reprisals
involving the prohibited acts are also prohibited.156
150
ICTY, Martić case, Trial Judgment, 2007, paras 464–468, and Appeal Judgment, 2008, paras 263–267.
151
Ibid., para. 468.
152
153
Iraq, Letter dated 2 May 1983 to the UN Secretary General, UN Doc. S/15743, 4 May 1983; Iraq, Letter dated 18
February 1987 to the UN Secretary General, UN Doc. S/18704, 18 February 1987; Islamic Republic of Iran, Letter
dated 2 February 1987 to the UN Secretary General, UN Doc. S/18648, 2 February 1987; Islamic Republic of Iran,
Letter dated 24 February 1987 to the UN Secretary General, UN Doc. S/18721, 25 February 1987; ; Islamic Republic
of Iran, Minister of Foreign Affairs, Letter dated 27 February 1987 to the UN Secretary General, UN Doc. S/18728,
27 February 1987; Islamic Republic of Iran, Letter dated 24 June 1987 to the UN Secretary General, UN Doc. S/18945,
24 June 1987.
154
See UN Secretary-General, Message dated 9 June 1984 to the Presidents of the Islamic Republic of Iran and the
Republic of Iraq, UN Doc S/16611, 11 June 1984; UN Security Council, Statement by the President, UN Doc.
S/PV.2798, 16 March 1988, p. 2; ICRC, Press Release No. 1479, Iran-Iraq War: ICRC appeals to belligerents, 15
December 1983; ICRC, Press Release No. 1489: Bombing of Iraqi and Iranian Cities, 7 June 1984.
155
See AP II, arts 7 (humane treatment of wounded, sick and shipwrecked in all circumstances), 10, para. 1 (no
punishment for having carried out medical activities compatible with medical ethics under no circumstances), 11
(respect and protection of medical units and transports at all times unless they are used to commit hostile acts) and 12
(respect of the distinctive emblem in all circumstances). See also A. Cassese, “The Status of Rebels under the 1977
Geneva Protocol on Non-International Armed Conflicts” 30 ICLQ (1981), at 434.
156
ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 2nd edition, 2016, commentary on Common Article 3, para. 905
(hereafter: ICRC Commentary 2016); ICRC Commentary 1987, para. 4530; M. Bothe, K. J. Partsch, W. A. Solf (eds.),
New Rules for Victims of Armed Conflicts (The Hague: Martinus Nijhoff, 2013) at 731; Cassese, above n. 155, at 435.
See also: Martić case, above n. 138, para. 16; Kupreškić case, above n. 138, para. 534. Contra: V. Bilkova, “Belligerent
Reprisals in non-international armed conflicts” 63(1) ICLQ (2014), pp. 155-157.
24
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What is more controversial is whether all other types of reprisal are equally prohibited in non-
international armed conflicts. According to the ICRC, the concept of belligerent reprisals “has
never materialized in non-international armed conflicts”, as it originates from State practice dating
back to the 19th and early 20th centuries and pertaining to international armed conflicts
exclusively. 157 The travaux préparatoires of Additional Protocol II somehow support this
argument. Suggestions made at the time to prohibit certain reprisals in APII (as in API) were
rejected because, for many States, the very concept of belligerent reprisals had no place in
NIACs.158 The international community has also often condemned reprisals in the context of
NIACs.159 The ICRC therefore considers that customary law prohibits reprisals altogether in the
context of non-international armed conflicts.160
This view is not shared by everyone. The ICTY has considered that reprisals fulfilling stringent
conditions and that are as far as possible in keeping with the prohibition of targeting civilians are
possible.161 Most authors seem to hold the view that belligerent reprisals might be applicable in
NIAC subject to stringent conditions (whose legal basis vary depending on authors). 162 For
instance, CASSESE maintained that “there is no logical obstacle” to prevent the use of reprisals by
Parties to a non-international armed conflict as a means to enforce Additional Protocol II, except
for those provisions that demand obedience “in all circumstances” or “at any time and in any place
whatsoever”.163 This possibility for lawful reprisals would be subject to stringent conditions
derived from the object and purpose of APII and conforming with the general requirements
governing countermeasures under general international law. As BILKOVA aptly puts it: “Views
on belligerent reprisals in NIAC are divided in both the case law and the literature. There is
disagreement whether the institution applies in NIAC at all. Opinions range from a clear yes by the
ICTY, through a hesitant probably by some scholars, to a reluctant no by the ICRC and other
157
See ICRC Commentary 2016, commentary on Common Article 3, para. 905; ICRC Customary IHL Study,
commentary on rule 148.
158
159
See, e.g., UNGA Resolution 48/152, 20 December 1993, para. 8; UNGA Resolution 49/207, 23 December 1994,
para. 9.
160
161
Supra note 147.
162
For a careful review of existing literature on the topic, see: Bilkova, above n. 156, 31-65.
163
Cassese, above n. 155, 433-434.
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scholars.” Instances where belligerent parties officially referred to belligerent reprisals to justify
IHL violations in NIACs have however not been identified. 164
In practice, it appears that reprisals were most of the time useless and counter-productive. Even the
US Law of War Manual (2015-2016), which boldly contends that “reprisals are generally
permissible under customary international law”165, recognizes that, in practice, “reprisals
frequently lead only to further unwanted escalation of the conflict by an adversary or a vicious
cycle of counter-reprisals”. 166 As such, reprisals are probably one of the most ineffective and
dangerous means of enforcing IHL. It therefore may legitimately be asked whether belligerent
reprisals can still be considered to strike a fair balance between the principles of military necessity
and humanity. Can they ever respect the “principles of humanity and the dictates of public
conscience” as set forth in the Martens Clause? Are they not the remainder of an obsolete concept
of reciprocity in respect of IHL, which threatens the very humanitarian purpose of that body of
law? It is striking that the International Law Commission’s Articles on State Responsibility provide
that countermeasures “shall not affect …b) obligations for the protection of fundamental human
rights; c) obligations of a humanitarian character prohibiting reprisals; d) other obligations under
peremptory norms of general international law.” 167 Insofar as the prohibition of arbitrary killings
as well as of cruel inhuman and degrading treatment are fundamental human rights, whose
peremptory character has often been recognized, the continued relevance of belligerent reprisals
jeopardizing those rights is questionable. At the very least, it is to be hoped that State practice will
continue to evolve, de lege ferenda, in the direction of a complete prohibition of reprisals.
3.3 Destruction and Seizure of Property
Article 23 g) of the 1907 Hague Regulations provides that it is prohibited “to destroy or seize the
enemy's property, unless such destruction or seizure be imperatively demanded by the necessities
164
See ICRC Commentary 2016, on Common Article 3, para. 905; Bilkova, above n. 156, at 49.
165
US DoD Law of War Manual 2016, p. 1096.
166
US DoD Law of War Manual 2016, p. 1099. See also: Australia, Manual on Law of Armed Conflict, Australian
Defence Force Publications, Operations Series, ADFP 37, Interim Edition, 1994, para. 1310; Kenya, Law of Armed
Conflict, Military Basic Course (ORS), The School of Military Police, 1997, Précis n° 4, p. 4; Sweden, International
Humanitarian Law in Armed Conflict, with Reference to the Sweedish Total Defence System, Sweedish Ministry of
Defence, January 1991, Section 3.5, p. 89; United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army
Code 71130 (Revised 1981), Ministry of Defence, 1981, Section 4, p. 17.
167
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001,
Art. 50.
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of war”.168 Under the 1949 Geneva Conventions, “extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly,” is a grave
breach of the Geneva Conventions. 169 This provision only concerns property that is “protected” by
the Geneva Conventions, such as fixed medical establishments and mobile medical units 170,
hospital ships,171 medical transports, including medical aircraft,172 or objects and property in
occupied territory.173 Article 53 of the Fourth Geneva Convention generally protects “real or
personal property belonging individually to private persons of an occupied belligerent State or to
other public authorities”. 174 The term “destruction” is not defined under IHL but it has been
understood broadly as covering setting fire to a protected object, attacking it or otherwise seriously
damaging it.175 The destruction does not need to be committed within the context of military action,
but it must be closely related to the hostilities. 176 The “appropriation” of protected property can
also be understood broadly and does not require a formal transfer of property title. 177 It covers the
“taking, obtaining or withholding of property, theft, requisition, plunder, spoliation and pillage”. 178
Pillage is a form of unlawful appropriation for private or personal use, which is also prohibited in
separate IHL provisions.179 Although the provision reads “destruction and appropriation”, it is clear
that the drafters’ intent was to criminalize the two acts separately rather than only cumulatively. 180
To constitute a grave breach the destruction or appropriation must be 1) extensive; 2) not justified
by military necessity 3) carried out unlawfully and 4) wantonly.
168
This rule can also be found in older documents, such as the Lieber Code (Articles 15–16) and the Brussels
Declaration, Article 13 (g).
169
Art. 50 GC I ; 51 GC II ; 147 GC IV. See also : ICC Statute, Art. 8(2)(b)(xiii).
170
Arts. 19, 33 and 34 GC I ; 23 GC II, 11 and 18 GC IV.
171
Art. 20 GC I; 22 and 24 GC II.
172
Arts 35 and 36 GC I; arts 38 and 39 GC II; 22 GC IV.
173
ICTY, Kordić and Čerkez, Judgment, 26 February 2001, para. 341.
174
Art. 53 of GC IV only applies to occupied territories as defined in article 42 of the 1907 Hague Regulations. Art.
23 g) of the Hague Regulations is thus wider in scope. The destruction of property situated on enemy territory may
nevertheless be considered a war crime (but not a grave breach). See: Kordić and Čerkez, Judgment, ibid, para. 335-
341 and 347.
175
ICRC Commentary 2016, para. 3009.
176
ICTY, Hadžihasanović, Judgment, 15 March 2006, para. 46.
177
178
Ibid.
179
For the specific provisions on pillage, see: 1907 Hague Regulations, Arts 28 and 47; art. 33(2) GC IV; AP II, Article
4(2)(g). On the customary character of the prohibition of pillage, see: ICRC Customary IHL Study, rule 52. See also
ICC Elements of Crimes, which specify that pillage is done “for private or personal use” (ICC Statute, Article
8(2)(b)(xvi) and (e)(v)).
180
ICRC Commentary 2016, para. 3008. See also the ICC Statute, which has reformulated the crime in the following
manner: “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by
the necessities of war” (ICC Statute, Art. 8(2)(b)(xiii) and Article 8(2)(e)(xii)).
27
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1) The extensiveness of the destruction/appropriation must be assessed on a case by case basis. 181
Usually, this criterion will be fulfilled when there is repeated unlawful destruction or appropriation,
as made clear by the French translation of “extensive” that is “executées sur grande échelle”. In
exceptional cases, though, a single act, such as the destruction of a hospital, may suffice. 182 We can
conclude that the extensive character of the criminalized acts might be either a quantitative criterion
(number of destructions/appropriations) or a qualitative criterion (importance of the object’s
value).183 Less numerous/serious forms of destruction/appropriation are still prohibited and might
still amount to war crimes, but not to grave breaches. 184
2) The destruction/appropriation must not be justified by military necessity. While contemporary

IHL does not permit invoking military necessity to justify violations of IHL, the principle is still
operational where the relevant treaty norm itself contains a derogatory clause in favor of military
necessity.185 Thus, where IHL expressly permits the destruction/appropriation of civilian property,
the scope and extent of such destruction / appropriation is limited by considerations of military
necessity. Except for interpretative purposes, this criterion has thus not much normative value.
3) The destruction/appropriation must be unlawful “under the specific standards pertaining to the
primary obligations” of IHL.186 For instance, the destruction by an Occupying Power of a private
house is unlawful, except where such destruction is rendered absolutely necessary by military
operations as specified in the relevant provision. 187 Similarly, the appropriation of the property
belonging to aid societies is unlawful except in case of urgent necessity, and only after the welfare
of the wounded and sick has been ensured. 188
181
ICRC Commentary 2016, para. 3014; ICTY, Blaškić, Trial Judgment, 3 March 2000, para. 157.
182
Ibid. See also: ICTY, Brđanin case, Trial Judgment, 1 September 2004, para. 587; ICTY, Naletilić and
Martinović case, Trial Judgment, 31 March 2003, para. 576; ICTY, Prlić, Trial Judgment, 29 May 2013, para. 126.
183
See, in this sense, ICTY, Hadžihasanović case, Judgment, 15 March 2006, para. 43.
184
ICTY, Hadžihasanović case, Judgment, 15 March 2006, para. 44; ICRC Commentary 2016, para. 3015.
185
ICRC Commentary 2016, para. 3013. See also: N. Melzer, Targeted Killing under International Law (OUP, 2008)
at 280-282 (and additional references therein).
186
187
Art. 53 GC IV.
188
Art. 34(2) GC I.
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in 2017.
4) Finally, the destruction/ appropriation must be committed “wantonly”. This mental element has
been understood as prohibiting not only the intentional commission of the criminalized act but also
recklessness. 189
Several accused were found guilty by the ICTY for unlawful destruction and appropriation of
property. 190 For instance, in the Blaskic case, the accused was found guilty of a grave breach of the
Geneva Conventions for extensive destruction of Bosnian Muslim dwellings, buildings, businesses,
private property and livestock between January 1993 and September 1993. 191
Although common article 3 and APII do not address the issue as such, the prohibition of destroying
or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by
the necessities of war has been considered as belonging to customary law for both international
and non-international armed conflicts.192 It has also been criminalized in the ICC Statute for non-
international armed conflicts.193
Regarding occupied territories, additional specific rules apply and complement the general
prohibition of unlawful destruction/appropriation of property discussed above. They are essentially
stated in the 1907 Hague Regulations. 194 The legal framework differs depending on the type of
property. Movable public property which may be used for military operations, such as cash, arms,
means of transport, may be confiscated, or in other words, taken without compensation. 195 There
is an exception to this rule: the property of municipalities and of institutions dedicated to religion,
charity and education, the arts and sciences, including historic monuments and works of art and
science, cannot be seized, destroyed or willfully damaged. 196 Immovable public property, such as
public buildings, real estate, forests and agricultural estates, may not be confiscated by the
Occupying Power. The latter must administer these properties according to the rules of usufruct
189
ICRC Commentary 2016, para. 3016. See also: See Brđanin, above n. 182, para. 589; Naletilić and Martinović,
above n. 182, para. 577(iv) and fn. 1440; Kordić and Čerkez, above n. 173, para. 341(iii); and Prlić, above n. 182,
paras 127 and 131.
190
Blaškić, above n. 181; Kordić and Čerkez, above n. 173; Naletilić and Martinović, above n. 182.
191
Blaškić, above n. 181.
192
See Rule 50 of the ICRC Customary IHL study; ICTY, Hadžihasanović, Decision on Motions for Acquittal Pursuant
to Rule 98 bis of the Rules of Procedure and Evidence, 27 September 2004, para. 104.
193
ICC Statute, Art. 8(2)(e)(xii).
194
In the Wall Advisory Opinion, the ICJ considered that art. 23 g) of the 1907 Hague Regulations was not pertinent
regarding the situation in the West Bank since this article is located in Section II dedicated to “hostilities”. Pertinent
rules were found thus exclusively in Section III dedicated to occupation (see arts 46 and 52). See ICJ, Advisory Opinion
on the legal consequences of the construction of a wall in the occupied Palestinian territory, 9 July 2004, para. 124.
195
Art. 53§1 of the 1907 Hague Regulations.
196
Art. 56 of the 1907 Hague Regulations.
29
in 2017.
and safeguard their capital. 197 Private property must be respected (and therefore not destroyed) and
cannot be confiscated.198 However, private property that may be used as war material – such as
telecommunication and radio equipment, cars, arms, munitions etc. – may be seized but must be
restored and compensated for after the war.199 Requisitions in kind and services may also be carried
out provided that: 1) they are done for the needs of the army of occupation, 2) they are in proportion
to the resources of the country, 3) they do not involve obliging civilians to take part in military
operations against their own country; 4) they are requested by the military commander in charge
of the region and 5) contributions in kind must as far as possible be paid for in cash as soon as
possible.200 The aforementioned rules are considered as customary law for situations of belligerent
occupation. 201 There are no equivalent rules for non-international armed conflicts.202 The issue
must therefore be analyzed under domestic law. 203
Regarding related judicial practice, two examples can be provided. In the Wall Advisory Opinion,
the ICJ found – without much elaboration – that the construction of the Wall had led to the
destruction or requisition of private Palestinian properties in a manner that was not consonant with
articles 43, 46 and 52 of the 1907 Hague Regulations, and with Article 53 of the Fourth Geneva
Convention. 204 Furthermore, the Eritrea-Ethiopia Claims Commission considered that Ethiopia, as
an occupying power in Tserona Town in 2000-2001, had violated articles 43, 46 and 47 of the 1907
Hague Regulations when it “permitted” - or rather did not prevent - the unlawful looting and
“stripping” (i.e. demolition) of buildings.205 The Commission argued that this was the case
regardless of whether these acts had been committed by Ethiopian military personnel or by
civilians. 206
Finally, for the sake of completeness, it should be recalled that the general rules on the conduct of
hostilities rules, including the basic principle of distinction, are also relevant to determine which
197
198
199
200
201
Rule 51 of the ICRC Customary IHL Study.
202
Ibid.
203
Ibid.
204
See ICJ, Advisory Opinion on the legal consequences of the construction of a wall in the occupied Palestinian
territory, 9 July 2004, paras 124, 126, 132 and 135.
205
Eritrea-Ethiopia Claims Commission, Central Front, Eritrea’s Claim, Partial Award, 28 April 2004, para. 67.
206
Ibid.
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in 2017.
objects are protected from direct attacks and therefore from being destroyed. This point will not be
elaborated here as it has already been extensively discussed elsewhere.207
Conclusion
The right of belligerents to choose methods of warfare, i.e. any particular manner of using weapons
or of otherwise conducting hostilities, is not unlimited. Methods of warfare are strictly regulated
under IHL. They are governed by general principles applicable to all military operations, most
notably the principle of distinction and the prohibition of superfluous injury or unnecessary
suffering, which have undisputed customary status in both international and non-international
armed conflicts.
By virtue of these principles, numerous specific methods of warfare have been prohibited/restricted
by IHL treaty provisions. The rationale underlying the restriction or prohibition of certain methods
of warfare can be either to protect combatants from superfluous injury or unnecessary suffering, or
to protect civilians and the civilian population against the effects of the hostilities. Examples for
the first category, protecting primarily combatants, include the prohibition of attacking persons
hors de combat, the prohibition of denial of quarter and the restriction on the use of deception.
Examples for the second category primarily protecting the civilian population and civilian objects
include the prohibition of starvation, reprisals and destruction and seizure of property as methods
of warfare.
Although IHL provisions regulating methods of warfare are much scarcer in treaties applicable to
non-international than in those governing international armed conflict, this difference can often be
compensated by taking into account customary law. Normally, resort to prohibited methods of
warfare not only entails State responsibility but also individual criminal responsibility. Thus,
individuals have been prosecuted both at the national and the international level for having resorted
to prohibited/restricted methods of warfare.
While this view may still be disputed by some States, the fact that a specific method of warfare is
not prohibited or restricted by a specific treaty provision does not necessarily mean that this method
is lawful. On the contrary, any method of warfare that has not been subject to specific treaty
207
See in this book, Michael Schmitt, International Humanitarian Law and the Conduct of Hostilities.
31
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regulation also can be restricted or prohibited based directly upon the principle of distinction and
the prohibition on superfluous injury or unnecessary suffering.
In practice, this means that the legality of new methods of warfare must continuously be examined
in light of these and other relevant legal principles, even if they are not (or not yet) prohibited by
specific treaty provisions. Article 36 of Additional Protocol I provides that “in 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”. This obligation also applies to States which are not parties to
Additional Protocol I because they are legally responsible for ensuring that they do not use
prohibited weapons or use lawful weapons in a manner that is prohibited. 208
Article 36 of API implies that when developing new weapon systems (means of warfare),
belligerent parties must ensure that they do not endanger compliance with existing
prohibitions/restrictions in terms of methods of warfare. For instance, when developing
increasingly autonomous weapons systems, States must ensure that they will be capable of being
used in compliance with the prohibition of indiscriminate attacks, with the prohibition of attacking
persons hors de combat, or with the prohibition of denial of quarter. Hypothetically, if soldiers
were to be replaced by robots exclusively capable of killing, but not capturing, enemy combatants,
this would likely raise serious issues under the prohibition of denial of quarter. In addition, new
“methods”, such as human enhancement (e.g. chemical “hardening” of soldiers or resort to nano-
technologies to render troops invisible) might give rise to new legal challenges, such as whether
these methods unduly affect the physical/mental integrity of belligerents’ own forces; an issue
traditionally not governed by IHL given its focus on ensuring minimal protection to the enemy. In
light of the speed of technological evolution and the unlimited inventiveness of the human mind,
however, it may safely be assumed that ensuring the compliance of new methods of warfare with
208
Melzer, above n. 16, at 122. Arguably, this duty can also be derived from the Martens Clause, which is considered
to be customary law. Ibid at 123.
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longstanding and fundamental principles of IHL will give rise to considerable challenges both in
law and in practice.
33
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Chapter · January 2017

Gloria Gaggioli Nils Melzer

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OXFORD GUIDE TO IHL, EDITED BY BEN SAUL AND DAPO AKANDE

By Gloria Gaggioli and Nils Melzer

1. Defining and regulating methods of warfare

1.1. Defining methods of warfare

Although the principle of distinction and the prohibition of superfluous injury/unnecessary

2. Methods of warfare that concern primarily the protection of combatants

2.1. Protection of persons hors de combat

2.2. Prohibition of the denial of quarter

2.3.2. Misuse of emblems, signs and uniforms-

3.3 Destruction and Seizure of Property

2) The destruction/appropriation must not be justified by military necessity. While contemporary

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