The Companion To International - Djukic, Drazan Pons, Niccolo

The Companion to International Humanitarian Law
International Humanitarian
Law Series
Editors-in-Chief
H.E. Judge Sir Christopher Greenwood

Professor Timothy L.H. McCormack
Editorial Advisory Board
Professor Georges Abi-Saab – H.E. Judge George H. Aldrich

Madame Justice Louise Arbour – Professor Ove Bring
Professor John Dugard – Professor Dr. Horst Fischer – Dr. Hans-Peter Gasser
H.E. Judge Geza Herczegh
Professor Ruth Lapidoth – Professor Gabrielle Kirk McDonald
H.E. Judge Theodor Meron – Captain J. Ashley Roach
Professor Michael Schmitt – Professor Jiři Toman
volume 55
The International Humanitarian Law Series is a series of monographs and edited volumes
which aims to promote scholarly analysis and discussion of both the theory and practice of the
international legal regulation of armed conflict.
The series explores substantive issues of International Humanitarian Law including,
– protection for victims of armed conflict and regulation of the means and methods of
warfare
– questions of application of the various legal regimes for the conduct of armed conflict
– issues relating to the implementation of International Humanitarian Law obligations
– national and international approaches to the enforcement of the law and
– the interactions between International Humanitarian Law and other related areas of in-
ternational law such as Human Rights, Refugee Law, Arms Control and Disarmament Law,
and International Criminal Law.
The titles published in this series are listed at brill.com/ihul

The Companion to International
Humanitarian Law
Edited by
Dražan Djukić
Niccolò Pons
leiden | boston
Library of Congress Cataloging-in-Publication Data
Names: Djukić, Dražan, 1981- editor. | Pons, Niccolò, editor.

Title: The companion to international humanitarian law / edited by Dražan
Djukić, Niccolò Pons.
Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: International
humanitarian law series ; volume 55 | “This important and unique volume
begins with seven essays that discuss the contemporary challenges to
implementing international humanitarian law. Its second and largest
section comprises 263 entries covering the vast majority of IHL concepts”
-- Publisher’s website.
Identifiers: LCCN 2018033782 (print) | LCCN 2018033928 (ebook) | ISBN
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Subjects: LCSH: Humanitarian law--Encyclopedias.
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Editors-in-Chief
Dražan Djukić Associate Legal Officer, Chambers, International Criminal Court
Niccolò Pons Associate Legal Officer, Registry’s Chambers Legal Support Unit,
Kosovo Specialist Chambers
Editorial Committee
Valentina Cadelo Associate Legal Adviser, Middle East and North Africa Pro-
gramme, International Commission of Jurists
Andrew Carswell Armed Forces Delegate, International Committee of the
Red Cross
Antonio Coco Departmental Lecturer in Law, Oxford University
Emma Irving Assistant Professor of Public International Law, Leiden University
Sandra Krähenmann Research Fellow, Geneva Academy of International Hu-
manitarian Law and Human Rights
Federica Pira Lawyer specialised in International Criminal Law and Interna-
tional Humanitarian Law
Jonathan Somer Founder, Persona Grata Consulting; Interim Senior Legal Ad-
viser, Canadian Red Cross (2017–2018)
Advisory Board
Guido Acquaviva Deputy Registrar, Kosovo Specialist Chambers
Gilbert Bitti Senior Legal Adviser, Pre-Trial Division, International Criminal
Court
Ivana Roagna Senior Training Specialist, UN Interregional Crime and Justice Re-
search Institute; Consultant in Human Rights and Criminal Justice
Ken Roberts Senior Legal Officer, Trial Chamber, Extraordinary Chambers in the
Courts of Cambodia; Judge on the Roster of International Judges, Kosovo Special-
ist Chambers
Sylvia Steiner Senior Researcher, Getulio Vargas Foundation Law School; former
Presiding Judge, Trial Chamber iii, International Criminal Court
Contents
Foreword: ihl in a Time of Crisis – Back to the Basics? xix

Guido Acquaviva
Preface xxvii
Abbreviations xxx
Notes on Contributors xxxii
Section A
Essays
1 Promoting the Teaching of ihl in Universities: Overview,

Successes, and Challenges of the icrc’s Approach 3
Etienne Kuster
2 Comparing Experiences: Engaging States and Non-State Armed

Groups on International Humanitarian Law 39
Andrew Carswell and Jonathan Somer
3 Legislative Measures in International Humanitarian Law: A Jigsaw

of Subtle Fragmentation 56
Azra Kuci and Jelena Plamenac
4 The Future of the International Humanitarian Fact-Finding

Commission: A Possibility to Overcome the Weakness of ihl
Compliance Mechanisms? 79
Robert Heinsch
5 The Role of United Nations Commissions of Inquiry in the

Implementation of ihl: Potential and Challenges 98
Théo Boutruche
6 The Intricate Relationship between International Human Rights

Law and International Humanitarian Law in the European Court
for Human Rights Case Law: An Analysis of the Specific Case of
Detention in Non-International Armed Conflicts 115
Damien Scalia and Marie-Laurence Hebert-Dolbec
viii Contents
7 International Humanitarian Law in the Jurisprudence of

International Criminal Tribunals and Courts 135
Alessandra Spadaro
Section B
Entries
1 Abandoned Explosive Ordnances 157

2 Acts Harmful to the Enemy 157
3 Additional Protocol i 159
4 Additional Protocol ii 162
5 Additional Protocol iii 164
6 Administrative Detention 165
7 Aerial Warfare 165
8 Amnesty 167
9 Animals 170
10 Annexation 172
11 Anti-Personnel Mine Ban Convention (1997) 174
12 Anti-Terrorist Operations 175
13 Apartheid 176
14 Area Bombardment 178
15 Armed Forces 178
16 Armed Groups 179
17 Armistice 182
18 Arms Trade Treaty (2014) 183
19 Artillery 186
20 Asymmetric Warfare 187
21 Asphyxiating Gases 188
22 Assigned Residence 188
23 Attacks 191
24 Attacks against Civilians and Persons Hors de Combat 193
25 Attacks against Historic Monuments, Works of Art and Places
of Worship 196
26 Attacks against Non-Defended Localities and Demilitarised
Zones 199
27 Attacks against Objects Indispensable to the Survival of the
Civilian Population 202
28 Attacks against Works or Installations Containing Dangerous
Forces 205
29 Attacks not Directed at a Specific Military Objective 207
Contents ix
30 Attacks which Employ a Method or Means of Combat the Effects of

which Cannot be Limited 207
31 Attacks which Employ a Method or Means of Combat which
Cannot be Directed at a Specific Military Objective 207
32 Aut Dedere Aut Iudicare 207
33 Autonomous Weapons 207
34 Bacteriological Weapons 210
35 Belligerency 210
36 Belligerents 211
37 Belligerents, Equality of 212
38 Biological Weapons Convention (1972) 214
39 Blockade 216
40 Bombardment 218
41 Booby-Traps 219
42 Brussels Declaration (1874) 221
43 Camouflage 221
44 Capture Card 222
45 Casualties, Search for 224
46 Central Tracing Agency 225
47 Chemical Weapons Convention (1992) 227
48 Child Soldiers 229
49 Children 233
50 Civil Defence 236
51 Civil War 237
52 Civilian Objects 237
53 Civilian Population 238
54 Civilians 239
55 Cluster Munitions 241
56 Coastal Rescue Craft 241
57 Code of Conduct 241
58 Collateral Damage 241
59 Collective Punishment 241
60 Combatants 243
61 Command Responsibility 246
62 Commissions of Inquiry and Fact-Finding Missions 249
63 Common Article 1 252
66 Compelling a Protected Person to Serve in the Forces
of the Hostile Power 259
67 Conciliation 261
x Contents
68 Continuous Combat Function 262

69 Convention on Certain Conventional Weapons (1980) 262
70 Convention on Cluster Munitions (2008) 264
71 Convention on the Rights of the Child (1989) and its
Protocols 267
72 Conventional Arms 270
73 Counter-Terrorism 270
74 Cruel Treatment 270
75 Cultural Property 270
76 Customary International Humanitarian Law 270
77 Customary International Law 273
78 Cyber Warfare 276
79 Dead Persons 279
80 Deportation or Transfer of Civilians 281
81 Deprivation of Liberty 285
82 Deprivation of Liberty, Treatment 288
83 Derogation 291
84 Deserters 293
85 Detention 295
86 Direct Participation in Hostilities 295
87 Disability 300
88 Disappearance 303
89 Discipline 303
90 Dissemination 304
91 Distinguish, Obligation to 307
92 Distinction 307
93 Drones 309
94 Dual-Use Objects 312
95 Dum-Dum (Expanding) Bullets 312
96 Dunant, Henry 313
97 Economic Warfare 315
98 Education 315
99 Embargo 317
100 Embedded Journalists 320
101 Emblem 320
102 Enquiry 322
103 Environment 324
104 Expanding Bullets 326
105 Exploding Bullets 326
106 Extrajudicial Killing 326
Contents xi
107 Evacuation 327
108 Explosive Remnants of War 329
109 Explosive Weapons 330
110 Fair Trial 331
111 Flag State 335
112 Forced Labour 337
113 Foreign Fighters 337
114 Freedom Fighters 339
115 Fundamental Guarantees 341
116 Gender Violence 344
117 Geneva Convention i 347
118 Geneva Convention ii 348
119 Geneva Convention iii 349
120 Geneva Convention iv 351
121 Geneva Conventions 353
122 Geneva Gas Protocol (1925) 355
123 Geneva Law 356
124 Grave Breaches 357
125 Guerrilla 360
126 Hague Convention (iv) Concerning the Laws and Customs of War
on Land (1907) 362
127 Hague Convention for the Protection of Cultural Property (1954)
and its Protocols 364
128 Hague Declaration (iv, 3) Concerning Expanding Bullets
(1899) 367
129 Hague Law 367
130 Hague Peace Conferences 369
131 Hague Regulations (1907) 369
132 Health 371
133 Hors de Combat 371
134 Hospital and Safety Zones and Localities 373
135 Hospital Ships 375
136 Hospitals 376
137 Hostages 378
138 Hostilities, Conduct of 379
139 Human Rights Courts and Bodies 383
140 Human Shields 386
141 Humanitarian Assistance 390
142 Humanitarian Corridors 390
143 Humanitarian Relief 392
xii Contents
144 Humanity 396
145 Humiliating and Degrading Treatment 399
146 Hybrid or Internationalised Tribunals 400
147 Implementation 402
148 Improvised Explosive Devices 404
149 Incendiary Weapons 406
150 Indiscriminate Attacks 408
151 Individual Criminal Responsibility 412
152 Information Bureaux 414
153 Inhuman Treatment 414
154 Inhumane Weapons Convention 416
155 Initiative 416
156 Integrity 416
157 Internal Disturbances and Tensions 416
158 International Armed Conflict 418
159 International Committee of the Red Cross 423
160 International Committee of the Red Cross, Visit 426
161 International Committee for Relief to the Wounded 428
162 International Convention for the Protection of All Persons from
Enforced Disappearance (2006) 428
163 International Criminal Law 431
164 International Criminal Tribunals 432
165 International Human Rights Law 435
166 International Humanitarian Fact-Finding Commission 438
167 International Humanitarian Law 438
168 International Humanitarian Law, General Principles of 440
169 International Organizations 442
170 International Red Cross and Red Crescent Movement 444
171 Internment 445
172 Italian Military Internees 448
173 Ius Ad Bellum 450
174 Ius in Bello 454
175 Journalists 454
176 Judges and Public Officials 456
177 Kriegsraison 458
178 Land Warfare 458
179 Landmines 461
180 Laser Weapons 462
181 Law Enforcement 464
182 Laws and Customs of War 466
Contents xiii
183 Laws of War 467

184 Legislation in Occupied Territory 467
185 Levée en Masse 468
186 Lieber Code 468
187 Life, Right to 468
188 Looting 468
189 Marking 469
190 Martens Clause 470
191 Means of Warfare 473
192 Medical Aircrafts 473
193 Medical Equipment 475
194 Medical Ethics 477
195 Medical or Scientific Experiments 477
196 Medical Personnel 479
197 Medical Standards, Generally Accepted 481
198 Medical Transports 482
199 Medical Transport Vessels 484
200 Medical Units and Establishments 485
201 Mercenaries 487
202 Merchant Vessels 489
203 Methods of Warfare 491
204 Military Commissions 491
205 Military Manuals 494
206 Military Necessity 496
207 Military Objectives 499
208 Mines 504
209 Missing Persons 504
210 Mixed Criminal Tribunals 507
211 Mortars 507
212 Murder 508
213 National Criminal Tribunals 508
214 National ihl Committees 511
215 National Information Bureaux 511
216 National Legislation 513
217 National Liberation Movements 514
218 National Red Cross and Red Crescent Society 514
219 Naval Warfare 514
220 Neutral Ports 517
221 Neutral Powers 517
222 Neutrality 519
xiv Contents
223 Neutralized Zones 521

224 New Weapons 523
225 No-Fly Zone 524
226 Non-Detectable Fragments 526
227 Non-Discrimination 527
228 Non-International Armed Conflict 528
229 Non-Refoulement 534
230 Non-State Actors 536
231 Nuclear Weapons 536
232 Occupation 540
233 Orders 545
234 Outrage upon Personal Dignity 547
235 Oxford Manual on the Laws of War on Land (1880) 548
236 Participation in Hostilities 548
237 Peace Treaty 548
238 Peacekeeping 550
239 Penal Prosecution 551
240 Penal Sanctions and Legislation 553
241 Penal System 555
242 Perfidy 556
243 Physical Mutilation 558
244 Pillage 560
245 Piracy 561
246 Plunder 563
247 Poisonous Gases 563
248 Precautions, Active 563
249 Precautions, Passive 565
250 Prisoners of War 567
251 Prisoners of War, Exchange of 569
252 Private Military and Security Companies 571
253 Property, Destruction and Appropriation/Seizure of 573
254 Property, Private 576
255 Proportionality 577
256 Protected Objects 579
257 Protected Persons 582
258 Protecting Powers 585
259 Public Health and Hygiene 587
260 Public International Law 589
261 Public Officials 590
262 Public Order and Safety 590
Contents xv
263 Qualified Persons 591

264 Quarter 592
265 Rape and Sexual Violence 594
266 Rebels 597
267 Reciprocity 597
268 Reconnaissance Missions 598
269 Red Crescent 600
270 Red Cross 600
271 Red Crystal 600
272 Red Lion and Sun 600
273 Red Shield of David 600
274 Refugee Law 600
275 Refugees 602
276 Regularly Constituted Courts 604
277 Release 606
278 Relief Societies 608
279 Religious Convictions and Practices 609
280 Religious Personnel 612
281 Removal of Tissue or Organs 614
282 Reparations 616
283 Repatriation 619
284 Repatriation, Unjustified Delay of 620
285 Reprisals against Civilians 621
286 Requisitions 626
287 Retention 627
288 Review Conference 627
289 Right to Leave 629
290 Rules of Engagement 630
291 Ruses of War 631
292 Saboteurs 633
293 Safe Area 635
294 Saint Petersburg Declaration (1868) 635
295 Secret Detention 636
296 Security Corridors 636
297 Security Detention 636
298 Security Zones 636
299 Serious Violations of the Laws and Customs of War 636
300 Seriously Endangering the Physical or Mental Health or Integrity
of Protected Persons 640
301 Sexual Violence 643
xvi Contents
302 Shipwrecked 643
303 Sick-Bays 644
304 Siege 645
305 Signal 648
306 Slavery 649
307 Small Arms and Light Weapons 651
308 Sniping 652
309 Solferino 653
310 Special Agreements 653
311 Specially Protected Zones 655
312 Spies 656
313 Superior Responsibility 659
314 Starvation 659
315 State Responsibility 661
316 Statelessness 664
317 Statutory Limitations 668
318 Summary Proceedings 669
319 Superfluous Injury and Unnecessary Suffering 669
320 Superior Orders, Defence of 672
321 Targeted Killing 675
322 Taxation 678
323 Terror, Spreading of 680
324 Terrorism (ihl) 680
325 Terrorism (International Law) 683
326 Terrorist Organizations 684
327 Torture 688
328 Toxin Weapons 690
329 Trade 690
330 Transfer by the Occupying Power of its Own Population 692
331 Transitional Justice 694
332 Translation 697
333 Transnational Armed Conflict 699
334 Truth Commissions 701
335 UN Protected Areas 703
336 Unexploded Ordnances 703
337 Universal Jurisdiction 703
338 Unlawful Combatants 703
339 Unmanned Aerial Vehicles (uavs) 703
340 Unprivileged Combatants 703
341 Usufruct 703
Contents xvii
342 War Correspondents 703

343 War Crimes 704
344 War on Terror 706
345 Warships 706
346 Wilful Killing and Murder 707
347 Wilfully Causing Great Suffering or Serious Injury to Body or
Health 709
348 Wilfully Depriving a Protected Person of the Rights of Fair and
Regular Trial 711
349 Women 713
350 Workers 715
351 Wounded and Sick 717
Foreword: ihl in a Time of Crisis – Back
to the Basics?
Guido Acquaviva*
ihl in Perspective: Kriegsraison vs. Humanitarian Feelings?
In 405 BC, during the Peloponnesian war, the Spartan admiral Lysander attacks
the strategic city of Lampsacus. His forces manage to capture three thousand
enemy fighters, Athenians and allied forces – including the Athenian General
Philocles – in the legendary Battle of Aegospotami, thus effectively bringing to
a close “a war which, in length, and the incredible variety of its incidents and
fortunes, surpassed all its predecessors”.1
Lysander gathers the allies in an assembly and asks them to deliberate on
how the prisoners should be treated. Since the Athenians had decreed to cut
off the right hand of every man taken alive – and upon the orders of Philocles
himself, had thrown overboard the crews of two triremes captured in combat –
the Spartans are clearly not well-disposed to humane treatment. Probably
tired of what must have appeared an endless conflict, and upon hearing many
other stories of Athenian atrocities, the assembly resolves to put to death all
prisoners. As to Philocles, Lysander first asks him what he deserves to suffer for
having prompted barbarous practices towards other Greeks, and then has his
throat slit.
Plutarch suggests that the assembly declaring the Athenians guilty should
be understood as a sort of tribunal, and he reports that the Athenian prisoner
of war was actually asked, “what punishment he thought he deserved for hav-
ing advised his fellow-countrymen to treat the Greeks so outrageously”. Before
being led to his execution, Philocles despondently advises Lysander not to play
the prosecutor in a case where there was no judge.2
* Deputy Registrar, Kosovo Specialist Chambers. The views expressed are those of the author
alone and do not necessarily reflect the views of the Kosovo Specialist Chambers.
1 Plutarch, Lysander, 11.6–11.7.
2 Xenophon, Hellenica, Book 2, Chapter 1, Sections 31–32; Plutarch, Lysander, 13. Even ear-
lier, sovereigns considered the merits of humanitarian protection when capturing enemy
cities. See for instance H. Abtahi, Reflections on the Ambiguous Universality of Human
Rights: Cyrus the Grea’s Proclamation as a Challenge to the Athenian Democracy’s Perceived
Monopoly on Human Rights, in Abtahi and Boas, Dynamics of International Criminal Justice
(2006).
xx Foreword: ihl in a Time of Crisis – Back to the Basics?
In the early hours of 1 November 1911, Giulio Gavotti, a 29-year old Italian
lieutenant stationed in Libya during the Italian-Turkish war, flies off towards
the oasis of Ain Zara on his Etrich Taube monoplane aircraft. He is determined,
as he intimates in a letter to his father, to make history. When he is about one ki-
lometre from his objective, he spots two encampments, which he describes as
“Arab tents”. While still controlling the craft with one hand, Gavotti pulls out a
leather box, unties the knot securing its lid, and carefully pulls out one orange-
sized bomb, placing it on his lap. Having triggered the detonator, he throws
the bomb outside the airplane with his right hand just before reaching the two
camps, aiming at the bigger of the two. He follows the trajectory for a few sec-
onds. The bomb disappears and Gavotti finally sees a darkish puff in the midst
of the smaller camp. He carries out two more strikes with as many explosive
devices, with no discernible additional effect. Content with having achieved
his objective, he flies back, thus bringing to a close the first airplane bombing
in human history.3 Guernica, Coventry, Hamburg, and Hiroshima would follow.
The “trial” of Philocles has been followed throughout history by countless

attempts to secure punishment for individuals involved in breaches of the
standards and laws related to armed conflict and to humanitarian protection –
from Peter von Hagenbach and Napoleon Bonaparte pertubateur du repos du
monde to Henry Wirtz, Harry “Breaker” Morant, Hermann Goering, William
Calley, Ratko Mladić, Charles Taylor and many others. Gavotti’s “historical”
deeds, needless to say, were never considered for punishment. It is maybe only
in the last seventy years – or perhaps just since Antonio Cassese presided over
the Tadić Jurisdiction Decision for the icty Appeals Chamber in 1995 – that
we have attempted to answer the question impulsively but poignantly posed
by Philocles at the end of the fifth century BC: what is the basis for the right to
adjudicate violations of the laws of war by others?
Principle of distinction; targeting and conduct of hostilities; treatment of
those hors de combat and punishment for serious violations of the laws of war:
areas (under-)regulated over the past centuries with the results we constantly
witness, leaving us often disheartened.
The law of war and, even before that, the ethics of how to wage war and
react to violations appear to be intrinsic deep-seated needs of most of human-
kind, somehow counterbalancing the impulse to exploit ingenuity and techni-
cal knowledge to gain military advantage. Several other factors are at play, of
course, and in a world where combatants, civilians, and terrorists vie for the
3 A brief account of the events in English is contained in T. Hippler, Bombing the People:
Giulio Douhet and the Foundations of Air-Power Strategy (2013), p. 1.
Foreword: ihl in a Time of Crisis – Back to the Basics? xxi
attention of the public, and increasingly of lawyers, States and other groups
often put forward diverging interests and views, and therefore do not aspire to
clear and practical concepts.
While discussions on the origins and development of ihl remain current,
a consistent theme through the centuries is the tension inherent in establish-
ing rules aimed at regulating the ever-evolving ability to inflict harm and suf-
fering on fellow humans: technological advance pursued through incalculable
resources poured into the development of warfare is to be governed by con-
stantly aging principles and rules. Although it might not be completely accu-
rate to state that the law of war is always one generation late in respect of novel
technologies and new brands of warfare, from indiscriminate bombings to sui-
cide bombers, the constant question is: what exactly should be regulated, and
how? If even a small truck or a suicide vest can be lethal weapons that “explode
the limits of the law”,4 how are we to regulate such violations?
Such questions become even more pressing with the advent of autonomous
weapons and cyber-warfare, both in relation to “pure” cyberwar, and in its inter-
action with more traditional conflict mechanics. What happens, for instance, in
terms of the regime applicable to the shipwrecked under Geneva Convention ii
following a cyber-virus disabling the warship, or in relation to collateral casual-
ties due to jamming gps signals, or – again – in terms of the responsibilities to-
wards persons in occupied territories if their well-being (such as access to water
and food) is left to completely automated mechanisms? How do internation-
ally recognized protective emblems apply to cyberspace, for instance to servers
of hospitals and of other critical civilian or cultural institutions? How is one to
track and determine criminal responsibility? And, when considering breaches:
how much value should courts and tribunals assign to open-source material
gathered through the internet or to electronically generated conclusions?5
Frictions and doubts on the battlefield and in the offices of policy-makers
do not stem – as is often assumed – from a clear-cut juxtaposition between
a cold, rational mind striving for concessions in favour of military necessity
on the one side, and warm, irrational feelings and lofty, protective principles
on the other. In March 1945, Winston Churchill wrote a surprisingly honest
4 For the expression (though used in the wholly different context of Nazi mass crimes), see
H. Arendt, Letter to Karl Jaspers of 17 August 1946, in H. Arendt, K. Jaspers, Correspondence,
1926–1969 (1992), p. 54.
5 icc, Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, Arrest Warrant, 15 August 2017,
ICC-01/11-01/17-2 (referring to social media videos). See also (though not directly in connec-
tion to ihl violations) stl, Prosecutor v. Ayyash et al., Decision on Appeal by Counsel for
Mr Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data
Records, 28 July 2015, STL-11-01/T/AC/AR126.9 (referring to call data records).
xxii Foreword: ihl in a Time of Crisis – Back to the Basics?
text (which he, however, officially withdrew a few days later, replacing it with
milder words):
[i]t seems to me that the moment has come when the question of bomb-
ing the German cities simply for the sake of increasing the terror, though
under other pretexts, should be reviewed. Otherwise, we shall come into
control of an utterly ruined land. […] The destruction of Dresden remains
a serious query against the conduct of Allied bombing. […] I feel the need
for more precise concentration upon military objectives, such as oil and
communications behind the immediate battle-zone, rather than on mere
acts of terror and wanton destruction, however impressive.6
Considerations of strategic relevance, in the broadest sense, at times inspire

moderation from (increasingly) needless acts of violence, while various irratio-
nal pressures, stemming from sentiments of vengeance and self-righteousness
or even from the perceived need to appease a tired or anxious public, can
instead choke restraint and fuel brutality. Rational thinking may often lead
to a considered decision that actually respects the rules of warfare – though,
of course, this is not always the case. Public moods or ill-formed advice not
grounded in facts and dispassionate analysis, on the contrary, may persuade
decision-makers to pursue acts of violence that fall beyond the realm of what
is lawful and proper (while, again, public sentiments and expert advice can
instead prompt vastly different actions in other circumstances).
It is thus important to escape the false dichotomy of a Kriegsraison sup-
posedly by definition in conflict with aspirational humanitarian feelings. The
tensions in this context are much more complex and heterogeneous than our
instincts may suggest, and trying to artificially simplify them is misleading.
Lex Lata vs Lex Ferenda: Back to the Future with the Martens Clause?
Where do the elucubrations by scholars and lawyers leave us? This volume
provides a vast panoply of research and reflections that is valuable, arguably
indispensable, for practitioners and academics alike. The editors have coura-
geously chosen to tackle an array of topics covering substantive, procedural,
and more abstract issues. Several of these entries show the challenges faced
by ihl, and the significance of international judicial institutions being parts
6 C. Webster, N. Frankland, The Strategic Air Offensive against Germany 1939–1945, Vol. 3
(1961), p. 112.
Foreword: ihl in a Time of Crisis – Back to the Basics? xxiii
of a wider system that is having a significant impact on ihl as applied by mili-

tary and civilian actors around the world, both at the policy level and “on the
ground”. Others explore the ever-expanding contours of ihl, with, for instance,
cyber-warfare and the growing preoccupation with environmental protection
in times of armed conflict. Permeating these themes is the continued – and
increasing – need for training in ihl, which, even amidst some resistance,
fosters behavioural changes and reinforces the prohibition of certain types of
conduct, together with continued icrc vigilance as well as ihl enforcement
by international, regional, hybrid, and domestic institutions.
In a mere couple of decades, a major shift has occurred in international rela-
tions and public opinion: when grave crimes are reported – as they more and
more often are, in this age of information and 24/7 news cycles – one of the
questions cried out is when and how can the suspects be brought to justice. We
are witnessing a slow but decisive change in ethos: the assumption that serious
violations of ihl ought to be at least investigated (with the aim of identify-
ing perpetrators) by a growing network of domestic and supranational insti-
tutions.7 Such a belief is, all considering, a rather novel one, a notion that has
not traditionally accompanied conflicts and violence in the past but which is,
instead, taking vigorous root today due to the multifaceted – and still fragile –
developments since the end of the Cold War. The accountability of States,
groups, and individuals for violations thus becomes not merely part of the in-
ternational discourse, but is expected to be consistently upheld in practice, on
the battlefield, as well as in the offices far away from the field where policies
are devised, implemented, and litigated.
Not all, of course, is well in ihl development and enforcement. The ten-
sions highlighted above and the tortuous historical paths that led us to the cur-
rent stage of (under-)development of ihl, leave us here, with a lex lata that is
deficient, constantly criticized, and manipulated, yet which nevertheless sur-
vives at the delicate intersection with war, human rights, law enforcement, and
other areas. And with a strong pull for a persistent improvement of the plight
of victims de lege ferenda, which on occasion enables certain actors – and at
times single individuals – to expand protections and ensure some degree of
certainty, while contending with pushbacks, doubts, and criticisms. We are
increasingly hearing not just the plights of Lysander and Philocles, in other
words, but also those of the victims, their families, and their communities, and
the developing law should reflect this new ability to listen, and build upon, a
diverse set of voices.
7 G. Acquaviva, ‘International Criminal Courts and Tribunals as Actors of General Deterrence?

Perceptions and Misperceptions’, 96(895/896) irrc (2014), p. 784.
xxiv Foreword: ihl in a Time of Crisis – Back to the Basics?
Such reflections on the changing face of war and the applicable law make
us therefore increasingly aware of the dire need to provide a modern reading
and maybe a partially new significance to the all-important – though at times
much maligned – Martens clause. The “principles of humanity” and the “dic-
tates of public conscience”, which are applicable even when positive law has
not yet “caught up” with new developments, require some deep reflection, a
veritable soul-searching, within the international community, especially at a
time of momentous changes in technology and ethos. Such soul-searching may
be particularly challenging at a time when not only objective realities are often
disputed by “alternate facts”, but also when wide differences of perspective and
worldviews threaten the very notion that humankind ultimately does possess
common principles of humanity and a recognizable shared public conscience.
After all, if States, non-State actors, ngos, individuals, and other relevant ac-
tors are unable to agree on common and shared values, then ihl, which relies
heavily on opinio juris and on a shared resolve to adhere to humanitarian pro-
tection standards, may be in danger of losing its ability to foster compliance
and increase its effectiveness. ihl’s universal application is – must be – pre-
mised on some degree of common understanding in relation to the values and
rules applicable to armed conflicts, and the ideals espoused by Martens in his
formulation starkly illustrate that the ihl edifice, if it is to withstand, ought to
be built on shared foundations.
However one interprets the Martens clause, a fundamental question is how
we understand, in a post-modern, splintered world, the expressions “human-
ity” and “public conscience”, for these are the foundations of any meaningful
discourse on the protections due in all cases that are not explicitly covered by
positive law. Humanitarian consciousness must be furthered even more care-
fully in a divided, yet connected, world.8 There are no easy solutions to this
conundrum, but one can envision ways in which modern participatory trends
and technology may be harnessed to achieve a better, more comprehensive
and open “inclusive process of deliberation conducted at multiple levels in as
8 See, among others, the reflections and references in V. Bernard, ‘Tactics, Techniques, Trag-
edies: a Humanitarian Perspective on the Changing Face of War’, 97(900) irrc (2015), p. 959;
Coming Soon…? A Reappraisal of the Legal and Ethical Implications of Autonomous Weap-
ons Systems (aws) ahead of the First Meeting of the ccw Group of Governmental Experts
on Lethal aws, in Questions of International Law, 31 October 2017, available at: http://www
.qil-qdi.org/coming-soon-reappraisal-legal-ethical-implications-autonomous-weapons
-systems-aws-ahead-first-meeting-ccw-group-governmental-experts-lethal-aws/.
Foreword: ihl in a Time of Crisis – Back to the Basics? xxv
broad a community as possible”9 to implement this exercise of human intel-

lect in moral and legal argument.
Technology is often considered a risk to compliance with ihl because of
the law’s struggle to keep up and match the former’s unforeseen (and unfore-
seeable) developments for strategy, tactics, yield, and striking capacity. How-
ever, new tools offered by technology should not be conceptualized always and
necessarily as a risk, but also as a means to make us better able to truly listen
to various voices and to enrich and improve our deliberative process. There
are voices suggesting the use of modern technology to promote a better un-
derstanding of the needs and experiences coming from the whole network of
subjects touched by armed conflict, so as to minimize the deficit of contribu-
tion to the laws of war (in a broad sense) from those who are often the most af-
fected by conflicts. In fact, information networks and the admittedly primitive
attempts to foster grass-roots movements through communication technolo-
gies, together with the ability to exchange information almost anywhere in the
world, can provide a basis for comprehensive and inclusive debates on how to
nurture a true conscience of humankind, at least in some areas. Technology
could assist in developing a more shared appreciation of cultural diversity’s
impact on the common understanding of the terms “humanity”, in both its
connotations of “humankind” and “humanness”.10
A resolve to undertake such an attempt to ensure a proper deliberative pro-
cess that is honestly participatory, and not manipulative, would go a long way
towards dispelling the worst reservations about new technologies and chal-
lenges, giving new hope to these concepts. There are undoubtedly a lack of
political will, ingrained old habits on how international law develops, and long-
standing practices and prejudices vis-à-vis non-State actors’ contributions to
the development of the common law of humankind – not to mention recent
biases against international law as a whole. Such impediments make it hard to
create a potent counter-narrative in defence of civilians and other protected
9 See the reflections and further references in R. Sparrow, Ethics as a Source of Law: The
Martens Clause and Autonomous Weapons, Humanitarian Law and Policy Blog, 14 Novem-
ber 2017, available at: http://blogs.icrc.org/law-and-policy/2017/11/14/ethics-source-law
-martens-clause-autonomous-weapons/.
10 While the English and French languages use the same word for these two concepts, other
groups, educated for instance in the Russian language (where the expressions are, re-
spectively, человечествo and человечность) have a more precise understanding of
these two sides of the concept of “humanity”, and therefore paradoxically experience
some difficulty in translating expressions such as “laws of humanity” and “crimes against
humanity”.
xxvi Foreword: ihl in a Time of Crisis – Back to the Basics?
interests. However, a widening participatory process to establish and interpret

the rules and the laws of war might be one means of fighting against the dilu-
tion of humanitarian consciousness and mustering stronger political resolve
to ensure compliance as well as interpretative tools that constantly adapt so
that the existing framework still makes sense in the face of technological and
other developments.
Indeed, if the front is truly nowadays “everywhere and nowhere at the same
time”, and “war is both omnipresent and absent”,11 then what we need is an
ever-present and pervasive conscience of humankind to assess and evaluate
every damaged home, all remotely operated weapons, each decision to strike
at the hearth of the enemy with “shock and awe”, every war-hospital casualty,
every bridge targeted. In a world where traditional Western dominance and in-
fluence are gradually losing ground, it seems all the more important to establish
an inclusive and structured forum for constructive debate and to achieve con-
sensus on the ground rules and principles, leading the way to the future. Bind-
ing future generations to an inclusive deliberative process on how the Martens
clause and its corollaries should be interpreted in the face of evolving technol-
ogies might yield positive results that are simply not achievable only through
traditional inter-governmental negotiations and judicial determinations.
Good will is not sufficient; knowledge is key – and shared knowledge even
more important. A more dynamic and responsive understanding starts with
knowledge of ihl, and – in a sense – is characterized by how we define our-
selves in relation to ihl and other areas of both law and ethics linked to the
use of force.
11 Bernard, supra note 8.

Preface
In 2013, we worked together in Pre-Trial Chamber ii of the icc. The proceed-

ings we were involved in raised unique ihl issues, which were discussed for
the first time before the icc and had generally been touched upon only in a
limited manner by other international tribunals. During animated discussions
with our colleagues, what struck us was the absence of a book that collected
all major ihl notions in a single volume, accessible enough to quickly enable
a variety of users to familiarise themselves with ihl issues in their daily work
and sufficiently comprehensive to allow more demanding users to conduct fur-
ther research.
The issue came up again in 2015 when we were located at the opposite ends
of the world: The Hague, where Dražan worked, and Phnom Penh, where Nic-
colò was based. Niccolò proposed to revive the idea of an ihl Companion.
We decided to give it a serious try and drafted a detailed book project that we
submitted to Brill-Nijhoff, but not before a thorough review by two trusted and
experienced colleagues and scholars, Gilbert Bitti and Mohamed El Zeidy of
the icc. Our gratitude goes out to them. To our surprise, Brill-Nijhoff accepted
enthusiastically. In particular, Lindy Melman guided us through the process
and supported us along the way.
We quickly set up an Editorial Committee, a sophisticated designation for
a group of friends and colleagues, working in the ihl field in different capaci-
ties and passionate enough to contribute to this huge undertaking. In their
capacity as Editors, their help in identifying experts willing to contribute to the
Companion and their assistance in reviewing several important entries was
priceless. For this reason, they deserve to be mentioned: Antonio Coco, Sandra
Krähenmann, and Emma Irving, young but already experienced scholars and
academics working at the Universities of Oxford, Geneva, and Leiden, respec-
tively; Valentina Cadelo, also an experienced academic and scholar working at
the Geneva Academy of International Humanitarian Law and Human Rights
as well as a humanitarian field expert currently stationed in Northern Africa;
and Andrew Carswell and Jonathan Somer, who possess impressive field ex-
perience in engaging both State armed forces and non-State actors to foster
respect for ihl on the battlefield.
At a later stage, another colleague joined the team who would prove to be
essential, Federica Pira, an Italian lawyer specialised in international criminal
law and ihl. She first took up the position of Editorial Assistant and later of
Editor, contributing immensely to managing the large amount of entries and
essays, including different drafts, and all internal working documents that
xxviii Preface
made this book possible. She rendered all entries consistent with the style and
reference guidelines, and carried out substantive revisions of several entries
and essays. In other words, she provided the project management skills that
we missed.
In parallel, an Advisory Board was constituted, made up of very experienced
colleagues who provided invaluable advice and support in terms of policy de-
cisions with regard to the preparation of the book. They are: Guido Acquaviva,
Deputy Registrar of the Kosovo Specialist Chambers; Gilbert Bitti, Senior Le-
gal Adviser to the Pre-Trial Division of the icc; Ivana Roagna, Senior Training
Specialist at the UN Interregional Crime and Justice Research Institute and
Consultant in human rights and criminal justice; Ken Roberts, Senior Legal
Officer to the Trial Chamber of the Extraordinary Chambers in the Courts of
Cambodia and Judge on the Roster of International Judges of the Kosovo Spe-
cialist Chambers; and Sylvia Steiner, former Presiding Judge of Trial Chamber
iii of the icc and Senior Researcher at the Getulio Vargas Foundation Law
School. We are grateful to them.
None of this, of course, would have been possible without the assistance of
the authors. We have been incredibly fortunate to benefit from the experience
of those in senior positions and from the enthusiasm of those in earlier stages
of their careers. All of them share, however, impressive legal skills driven by a
great passion for ihl. We are truly indebted to them.
The main idea behind the ihl Companion was to create a book to facilitate
the practical application of ihl. This deceptively straightforward notion was
the impetus for developing the book and inspired us throughout the various
stages of the project. We, therefore, hope that the book will appeal to a wide
audience interested in or confronted with ihl, ranging from professionals in
humanitarian assistance and protection in the field, legal officers and advis-
ers at the national and international level, trainers, academics, scholars, and
students. We hope to provide them with a tool to start up or perform a specific
task, and with a source for reflection and further research. In other words, a
point of departure and finish, as the case may be.
This Companion begins with a section consisting of seven essays that dis-
cuss, from different perspectives, the contemporary challenges to implement-
ing ihl. We are sadly reminded of the need to discuss this topic every day in the
media. The second section of the book comprises more than 260 entries cover-
ing the vast majority of ihl. All contributors have framed the entries with a
view to explaining the essential legal parameters of a particular element of ihl,
while keeping the need to discuss practical examples and, where relevant, his-
torical considerations in mind. The starting point for the selection of the entries
was, of course, the distinct notions arising from the Geneva Conventions, the
Preface xxix
Additional Protocols, and other ihl treaties. We have tried to dissect these
instruments in order to discuss all relevant concepts and to connect them
through cross-references in the text. However, the Companion is not limited
to these matters. The reader will encounter entries going beyond the typical
scope of ihl, such as those related to the protection of the natural environ-
ment and animals, and entries that, in addition to an ihl perspective, discuss
relevant issues through the lens of human rights law, refugee law, international
criminal law, the law on State responsibility, national law, and so on. We have
also attempted to take into account certain concepts that have no direct foun-
dation in ihl, but that are commonly used or generate wide interest in con-
temporary society. Accordingly, authors have written on, for instance, drones,
economic warfare, cyber warfare, sniping, targeted killings, transitional justice,
terrorism, and many other topics. All of this contributes, we hope, to making
this book both relevant and original.
Dražan dedicates this book to his wife, son, and daughter. Niccolò dedicates
this book to his late father, to the person he met on the roofless bus, as well as
to his closest friends: Adeline, Amir, Ania, Gerardo, Harshan, Lawrence, Mad-
dalena, Marcela, Matthew, Sun, and Tomas.
Dražan Djukić, Niccolò Pons

Abbreviations
achpr African Charter on Human and Peoples’ Rights

achr American Convention on Human Rights
ACmhpr African Commission on Human and Peoples’ Rights
api Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International
Armed Conflicts, 8 June 1977, alias Protocol i
apii Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non- Inter-
national Armed Conflicts, 8 June 1977, alias Protocol ii
aps Additional Protocols to Geneva Convention i to iv
ccw The 1980 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,
alias Convention on Certain Conventional Weapons (1980)
cescr Committee on Economic, Social and Cultural Rights
eccc Extraordinary Chambers in the Courts of Cambodia
echr Convention for the Protection of Human Rights and Fun-
damental Freedoms, alias European Convention on Human
Rights
ECtHR European Court of Human Rights
gci Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, 12 August
1949, alias Geneva Convention i
gcii Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, 12 August 1949, alias Geneva Convention ii
gciii Geneva Convention Relative to the Treatment of Prisoners of
War, 12 August 1949, alias Geneva Convention iii
gciv Geneva Convention Relative to the Protection of Civilian Per-
sons in Time of War, 12 August 1949, alias Geneva Convention iv
gcs Geneva Convention i to iv
IACmHR Inter-American Commission on Human Rights
IACtHR Inter-American Court of Human Rights
icc International Criminal Court
iccpr International Covenant on Civil and Political Rights
icescr International Covenant on Economic, Social and Cultural
Rights
Abbreviations xxxi
icj International Court of Justice

icrc International Committee of the Red Cross
ictr International Criminal Tribunal for Rwanda
icty International Criminal Tribunal for the former Yugoslavia
ihl International Humanitarian Law
ihrl International Human Rights Law
ilc International Law Commission
imt International Military Tribunal
imtfe International Military Tribunal for the Far East
mict Mechanism for International Criminal Tribunals
nato North Atlantic Treaty Organization
ohchr Office of the High Commissioner for Human Rights
pca Permanent Court of Arbitration
pcij Permanent Court of International Justice
san remo manual San Remo Manual on International Law Applicable to Armed
Conflicts at Sea, 12 June 1994
scsl Special Court for Sierra Leone
stl Special Tribunal for Lebanon
udhr Universal Declaration of Human Rights
UN United Nations
unga United Nations General Assembly
unhcr United Nations High Commissioner for Refugees
unsc United Nations Security Council
unsg United Nations Secretary-General
untaet United Nations Transitional Administration in East Timor
vclt Vienna Convention on the Law of Treaties
Notes on Contributors
Cécile Aptel
Senior Legal Policy Advisor, United Nations High Commissioner for Human
Rights; Associate Professor of International Law, Fletcher School of Law and
Diplomacy
Roberta Arnold
Lecturer, University of Lucerne; Visiting Scholar, Franklin University
Switzerland
Harshan Athureliya
Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of
Cambodia
Rogier Bartels
Legal Officer, Chambers, International Criminal Court
Céline Bauloz
Senior Fellow, Global Migration Centre, Graduate Institute of International
and Development Studies
Chris Black
Legal Officer for Judicial Matters, Special Tribunal for Lebanon
Jeroen van den Boogaard

Assistant Professor of Military Law, Netherlands Defence Academy
Théo Boutruche
Humanitarian Law and Policy Course Director, International Association of
Professionals in Humanitarian Assistance and Protection
Maya Brehm
Advisor, Article 36
Valentina Cadelo
Associate Legal Adviser, Middle East and North Africa Programme, Interna-
tional Commission of Jurists
Notes on Contributors xxxiii
Lindsey Cameron
Head of the Unit of Thematic Legal Advisers, Legal Division, International
Committee of the Red Cross
Lucia Carcano
Lawyer; Student Assistant, Del Rosario University
Andrew Carswell
Armed Forces Delegate, International Committee of the Red Cross
Stuart Casey-Maslen
Honorary Professor, University of Pretoria
Amir Čengić
Legal Consultant
Eleni Chaitidou
Vincent Chetail
Professor of International Law, Graduate Institute of International and Devel-
opment Studies
Gabriella Citroni
Professor of International Human Rights Law, University of Milano-Bicocca;
Senior Legal Advisor, trial International
Antonio Coco
Departmental Lecturer in Law, Oxford University
Alex Conte
Senior Legal Adviser, International Commission of Jurists
Geoffrey S. Corn
Vinsen & Elkins Professor of Law, South Texas College of Law Houston; Lieu-
tenant Colonel, U.S. Army (Retired)
Maurice Cotter
International Lawyer
xxxiv Notes on Contributors
Matteo Crippa
Senior Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of
Cambodia
Matthew Cross
Appeals Counsel, Office of the Prosecutor, International Criminal Court
Eric David
Professor Emeritus of International Law, Université Libre de Bruxelles
Dražan Djukić
Associate Legal Officer, Chambers, International Criminal Court
George Dvaladze
PhD Candidate, University of Geneva; Teaching Assistant, Geneva Academy of
International Humanitarian Law and Human Rights
Jorge Errandonea
Senior Legal Officer, Inter-American Court of Human Rights
Katharine Fortin
Assistant Professor, Netherlands Institute of Human Rights, Utrecht University
Gloria Gaggioli
Assistant Professor, University of Geneva
Daniela Gavshon
Project Director, Transitional Justice, Public Interest Advocacy Centre
Maddalena Ghezzi
Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of
Cambodia
Gilles Giacca
Research Associate, Oxford Institute for Ethics, Law and Armed Conflict
Terry Gill
Professor of Military Law, University of Amsterdam and Netherlands Defence
Academy
Notes on Contributors xxxv
Marcela Giraldo
Judge, Colombian Special Jurisdiction for Peace (the author was a lawyer at
the Inter-American Court of Human Rights at the time of writing the entries)
Anne-Laurence Graf-Brugère
Postdoctoral Research Fellow, Swiss Centre for Expertise in Human Rights
Tomas Hamilton
Senior Legal Consultant, Extraordinary Chambers in the Courts of Cambodia
Marie-Laurence Hebert-Dolbec
f.r.s.-f.n.r.s. Research Fellow; PhD Candidate, Université Libre de Bruxelles
Ezequiel Heffes
Thematic Legal Advisor, Geneva Call
Iris van der Heijden

Executive and Academic Assistant to the Secretary-General, Institut de Droit
International; Consultant, United Nations High Commissioner for Refugees
Robert Heinsch
Associate Professor of International Law, Leiden University; Director of the
Kalshoven-Gieskes Forum on International Humanitarian Law
Alexandra Hofer
Doctoral Researcher, Ghent Rolin-Jaequemyns International Law Institute,
Ghent University
Emma Irving
Assistant Professor of Public International Law, Leiden University
Chris Jenks
Associate Professor of Law and Criminal Justice Clinic Director, smu Dedman
School of Law
Saeko Kawashima
Attorney-at-Law, New York State
Sunkyung Kim
Staff Attorney, Ninth Circuit Court of Appeals
xxxvi Notes on Contributors
Jann K. Kleffner
Professor of International Law and Head of the Centre for International and
Operational Law, Swedish Defence University
Robert Kolb
Professor of Public International Law, University of Geneva
Sandra Krähenmann
Research Fellow, Geneva Academy of International Humanitarian Law and
Human Rights
Azra Kuci
Associate Situation Analyst, Office of the Prosecutor, International Criminal
Court
Fauve Kurnadi
Legal Adviser, Academic and Private Sector Engagement, International Hu-
manitarian Law, Australian Red Cross
Anastasia Kushleyko
Regional Legal Adviser for Eastern Europe and Central Asia, International
Etienne Kuster
Academic Relations Adviser, International Committee of the Red Cross
Louis G. Maresca
Senior Legal Adviser, Legal Division, International Committee of the Red Cross
Triestino Mariniello
Senior Lecturer in Law, Edgehill University
Tim McCormack
Dean, University of Tasmania Law School; Professorial Fellow, Melbourne Law
School; and Special Adviser on International Humanitarian Law to the Pros-
ecutor of the International Criminal Court
Helen McDermott
Research Associate, Individualisation of War Project, European University In-
stitute; Visiting Scholar, Blavatnik School of Government, University of Oxford
Notes on Contributors xxxvii
Brianne McGonigle Leyh

Associate Professor, Netherlands Institute of Human Rights, Utrecht University
Robert McLaughlin
Professor of Military and Security Law and Director, Australian Centre for the
Study of Armed Conflict and Society, University of New South Wales Canberra
Sigrid Mehring
Law Clerk, Regional Court, Frankfurt am Main
Omar Mekky
Regional Legal Coordinator for Middle East and North Africa, International
Nils Melzer
United Nations Special Rapporteur on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment; Professor of International Law,
University of Glasgow; Human Rights Chair, Geneva Academy of International
Humanitarian Law and Human Rights
Gerardo Moloeznik
Humanitarian Worker
Marcos Pablo Moloeznik

Professor of Political Science, University of Guadalajara
Yasmin Naqvi
Legal Officer, Immediate Office of the Registrar, International Residual Mecha-
nism for Criminal Tribunals
Volker Nerlich
Legal Adviser, Appeals Division, International Criminal Court; Honorary Pro-
fessor, Humboldt University of Berlin
Ousman Njikam
External Relations Officer, International Residual Mechanism for Criminal
Tribunals
Ellen Nohle
International Humanitarian Law Worker
xxxviii Notes on Contributors
Ilya Nuzov
Head, Eastern Europe-Central Asia Desk, International Federation for Human
Rights
Hector Olasolo
Chair in International Law, Del Rosario University; Chairman, Ibero-American
Institute of The Hague for Peace, Human Rights and International Justice;
Director, Ibero-American Yearbook of International Criminal Law
Laura M. Olson
Director, Human Rights Program, The Carter Center
Roger Phillips
Senior Legal Consultant, Trial Chamber, Extraordinary Chambers in the Courts
of Cambodia
Maria Giovanna Pietropaolo

Legal Advisor, International Humanitarian Law Resource Centre, Diakonia
Giulia Pinzauti
Assistant Professor of International Law, Leiden University
Federica Pira
Lawyer specialised in International Criminal Law and International Humani-
tarian Law
Jelena Plamenac
Senior International Humanitarian Law Expert
Niccolò Pons
Associate Legal Officer, Registry’s Chambers Legal Support Unit, Kosovo
Specialist Chambers
Elvina Pothelet
PhD Candidate, University of Geneva; Teaching Assistant, Geneva Academy of
International Humanitarian Law and Human Rights
Alice Priddy
Senior Researcher, Geneva Academy of International Humanitarian Law and
Human Rights
Notes on Contributors xxxix
Noëlle Quénivet
Associate Professor of International Law, University of the West of England
Anne Quintin
Lecturer, Paris School of International Affairs (Sciences Po); Doctoral Student,
University of Geneva
Michael Ramsden
Associate Professor, Chinese University of Hong Kong; 25 Bedford Row
Aurélie Roche-Mair
Programme and Office Director, icc and icl Programme, International Bar
Association; PhD Candidate, Netherlands Institute of Human Rights and the
Montaigne Centre, Utrecht University
Tom Ruys
Professor of International Law, Ghent Rolin-Jaequemyns International Law
Institute, Ghent University
Ania Salinas
Dan Saxon
Assistant Professor of International Law, Leiden University College
Damien Scalia
Professor, Faculty of Law and Criminology, Université Libre de Bruxelles
Ilia Siatitsa
Researcher, Geneva Academy of International Humanitarian Law and Human
Rights
Jonathan Somer
Founder, Persona Grata Consulting; Interim Senior Legal Adviser, Canadian
Red Cross (2017–2018)
Alessandra Spadaro
PhD Candidate, Graduate Institute of International and Development
Studies
xl Notes on Contributors
Heike Spieker
Deputy Director, International Cooperation and National Emergency Services
Division, German Red Cross; Senior Lecturer, University College Dublin
Jacopo Terrosi
Analysis Assistant, Office of the Prosecutor, International Criminal Court
Kinga Tibori-Szabó
Legal Officer, Kosovo Specialist Chambers
Vito Todeschini
Associate Legal Adviser, Middle East and North Africa Programme, Interna-
tional Commission of Jurists
Camilla van der Walt

Judicial Affairs Officer, Rule of Law Section, United Nations Mission in South
Sudan
Nathalie Weizmann
Senior Legal Officer, United Nations Office for the Coordination of Humanitar-
ian Affairs
Section A
Essays
∵
Promoting the Teaching of ihl in Universities:
Overview, Successes, and Challenges of the
icrc’s Approach
Etienne Kuster*
Abstract
According to the four GCs of 1949,1 States have to include the study of those texts
within their programmes of military and civilian instruction. What role do universi-
ties play in that regard? How has the icrc supported the teaching of ihl during the
past decades? What are the results achieved and the challenges faced? Which recom-
mendations and questions can be formulated for years ahead? This piece endeavours
to provide an overview of the icrc’s experience in promoting the teaching of ihl in
academia worldwide.
Law is not just a method of reasoning, a technique used to justify or

refute a solution. It also has to do with justice. It governs human beings.
The specificity of human beings is that they have a moral choice. Un-
like Nature, human society sets out the boundaries and limits of what is
perceived as good and bad. […] How better to understand this aspect of
law than by studying ihl, the branch applicable to the most inhumane,
* Etienne Kuster is Adviser for relations with academic circles at the International Committee
of the Red Cross (ICRC). He has worked for the icrc in various capacities since 2006. After
missions in Pakistan and Thailand, he took up his current position at icrc headquarters in
2011. He oversees and supports the icrc’s worldwide interactions with academic institutions
for the promotion of law and humanitarian action, develops ihl teaching tools, organizes
academic events, and represents the icrc towards the academic community. He holds of
a law degree from the University of Geneva and a m.a.s. in ihl from the Geneva Academy
of International Humanitarian Law and Human Rights. The author would like to offer his
heartfelt thanks to all persons who contributed to this article and contribute to promoting
and supporting the teaching of ihl in academia in general. The views expressed are those of
the author alone and do not necessarily reflect the ICRC’s position.
1 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949),
75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75
unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of
War (1949), 75 unts 287 (all entered into force on 21 October 1950).
© koninklijke brill nv, leiden, 2018 | doi:10.1163/9789004342019_002

4 Kuster
lawless, anarchic and archaic form of human activity, namely war? […]
Even those who understand ihl can choose to violate it. Teaching ihl is
therefore always, even at universities, a question not only of training but
also of education.2
1 Introduction
For the vast majority of people, the icrc is associated with relief and not aca-
demic work. More specifically, the icrc is mostly known for the humanitarian
operations aiming at alleviating human suffering in armed conflict it has con-
ducted for over a century.3 Nobel Peace Prizes attributed to the organization,
its members and partners, have been mostly in recognition of its outstanding
humanitarian efforts assisting victims during armed conflicts.4 However, the
dissemination of ihl to the public in general, and in universities in particular,
has constituted one of the first activities of the icrc after its birth in 1863,5
and continued for the next 40 years or so.6 Indeed, in the view of Gustave
Moynier:
La propagande en faveur des principes de la Convention de Genève ne

comporte pas seulement leur vulgarisation au sein des armées et un
2 M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part iii (2011), at 2.
3 P. Boissier, History of the International Committee of the Red Cross, From Solferino to
Tsushima, Vol. i (1985); A. Durand, History of the International Committee of the Red Cross,
From Sarajevo to Hiroshima, Vol. ii (1984); C. Rey-Schyrr, History of the International Com-
mittee of the Red Cross, From Yalta to Dien Bien Phu, Vol. iii (2007); F. Bugnion, F. Perret,
History of the International Committee of the Red Cross, From Budapest to Saigon, 1956–1965,
Vol. iv (2009); J.-L. Blondel, History of the International Committee of the Red Cross, From
Saigon to Ho Chi Minh City, Vol. v (2016).
4 See: https://www.nobelprize.org/nobel_prizes/peace/laureates/1917/press.html; https://
www.nobelprize.org/nobel_prizes/peace/laureates/1963/press.html#not_9.
5 In 1869, the icrc published its first “Bulletin International des Sociétés de Croix-Rouge”,
which provided information on the state of ratification of the 1864 Geneva Convention to
large audiences, including academics. The first edition reported also about the lecture given
by Professor Eugène Cauchy, mandated by the icrc, about the 1864 and 1868 Geneva Con-
ventions at the Institut de France.
6 While the icrc sent some delegates to observe the application of the 1864 Geneva Conven-
tion in conflicts, such as the Franco-Prussian war of 1870, the core of its activity, until World
War i in 1914, consisted of coordinating the Red Cross National Societies in various countries
through the Bulletin International des Sociétés de Croix-Rouge and driving ihl codification
through various conferences leading to new conventions. See: Boissier, supra note 3.
Promoting the Teaching of ihl in Universities 5
enseignement populaire; elle doit aussi pénétrer dans le monde des

jurisconsultes qui s’occupent du droit international, et dont les opinions,
à défaut des lois positives, consacrent les usages que les nations civilisées
se croient tenues de respecter.7
Even after the icrc took a more prominent operational role in armed conflicts,
through its extensive work during wwi, it maintained and even increased its
activities in the field of dissemination of ihl in universities through courses
and publications. For instance, in 1922, a 12-lesson course dedicated to the
icrc and ihl was given by its delegate Paul Des Gouttes at the Institut des
Hautes Etudes Internationales, while the “Bulletin International des Sociétés de
Croix-Rouge” (today known as the International Review of the Red Cross) has
continued to disseminate ihl and humanitarian action-related information
on a regular basis since its first publication in 1869.8
More recently in 2017, the icrc interacted in the field of ihl, humanitarian
policy and action with over 900 universities in 120 countries.9 Among those
universities it is estimated that at least two thirds teach ihl in one way or the
7 cicr, ‘Bulletin International des Sociétés de Secours aux Militaires Blessés’, No. 1 (1869), at 8.
8 The ‘Bulletin International des Sociétés de Croix-Rouge’ has since been renamed Interna-
tional Review of the Red Cross and has become a leading peer-reviewed academic journal in
the debate on ihl, humanitarian policy and action. See infra note 127.
9 Internal reports, icrc, 2018. The nature of such interactions varies from annual visits to deans
of faculties, delivery of ihl publications to the university library, dissemination sessions
on ihl and/or the icrc, co-organization of conferences, ihl training and/or students’
competitions, research partnerships, etc. The list of concerned countries includes, by con-
tinent and in no particular order: Ivory Coast, Burkina Faso, Ghana, Togo, Benin, Algeria,
Senegal, Cabo Verde, Gambia, Guinea, Liberia, Libya, Mauritania, Mali, Niger, Nigeria,
Morocco, Mauritania, Tunisia, Madagascar, Comoros, Mauritius, Burundi, Central African
Republic, Democratic Republic of Congo, Zimbabwe, Mozambique, Zambia, Malawi, Liberia,
Namibia, Swaziland, Lesotho, Botswana, South Africa, Rwanda, Cameroon, Gabon, Congo-
Brazzaville, Equatorial Guinea, Chad, Eritrea, Ethiopia, Kenya, Tanzania, Republic of South
Sudan, Sudan, Uganda, Argentina, Haiti, Dominican Republic, Peru, Bolivia, Ecuador, Mexico,
some caricom countries, Costa Rica, Cuba, Panama, United States of America, Canada,
Chili, Venezuela, Colombia, France, Turkey, United Kingdom, Czech Republic, Slovenia,
Poland, Hungary, Serbia, Macedonia, Croatia, Romania, Bosnia and Herzegovina, Italy, Swit-
zerland, Belgium, Armenia, Azerbaijan, Georgia, Kyrgyzstan, Russian Federation, Uzbekistan,
Kazakhstan, Turkmenistan, Tajikistan, Egypt, Iran, Iraq, Israel & Occupied Territories, Jordan,
Kuwait, Oman, Saudi Arabia, Bahrain, Qatar, United Arab Emirates, Lebanon, Syria, Yemen,
Bangladesh, India, Afghanistan, Nepal, Pakistan, Sri Lanka, Thailand, Vietnam, Laos, Cam-
bodia, China, Republic of Korea, Democratic Republic of Korea, Indonesia, Japan, Malaysia,
Myanmar, the Philippines, Australia, New Zealand, Papua New Guinea.
6 Kuster
other.10 How have we come to this result? What has been the role of the icrc
in that regard? And what results can such an achievement yield in today’s
world? With which challenges? This piece aims to provide answers to these
questions, although certainly not in an exhaustive manner. Drawing from sev-
eral other articles and publications on the topic, it attempts to define the legal
and practical extent of the ihl dissemination obligation set forth in the GCs,
their APs11 and in customary ihl. Then, it explores why universities are key ac-
tors to fulfil this obligation through their teaching. It also discusses how such
teaching has increased in universities over the past decades, looking at select-
ed elements, such as methodology and tools, and the role of the icrc. After
analysing the contribution of such efforts to ihl implementation, it concludes
by presenting a list of practical challenges that ihl teaching in universities
faces. For each challenge, the article proposes recommendations to maintain
and develop ihl teaching in academia in years ahead. For the sake of focusing
on the topic at stake, this article will deliberately refrain from analysing the
obligation to disseminate ihl within armed forces and its consequences, de-
spite the fact that a certain number of academic centres disseminating ihl are
joint civilian-military structures, a model which is all the more frequent nowa-
days.12 Likewise, this piece will not analyse the dissemination of ihl carried
out at primary and secondary educational levels, which is conducted through
different pedagogical approaches and tools than for tertiary level education.
Lastly, it will not address other aspects related to ihl and universities, such
as academic research or outreach events, which will be discussed in another
upcoming piece from this author.
10 This estimate is based on icrc delegations’ annual planning and monitoring in 2017, as
reflected in internal documents. Following it, more than two thirds of the 75 icrc delega-
tions had interactions related to ihl dissemination with their partner universities in 2017.
While there are no proper estimates to compare the current situation to that pre-existing
the systematic engagement of the icrc with academia in the 1980s, one could rely on
the description made by Françoise Hampson writing that “[i]n the late 1970s there was a
dearth of contemporary materials for students to read” to conclude that ihl has probably
never been taught as much as today in academia. See: F. Hampson, ‘Teaching the Law of
Armed Conflict’, 5(1) Essex Human Rights Review (July 2008), at 6.
11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Pro-
tection of Victims of International Armed Conflicts (1977), 1125 unts 3; Protocol Addi-
tional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (1977), 1125 unts 609 (all entered into
force on 7 December 1978).
12 See for instance: the Asia-Pacific Centre for Military law or the Stockton Center for the
Study of International Law at the U.S. Naval War College.
2 The Obligation to Disseminate ihl in Programmes of

Civil Instruction
The teaching of ihl in universities is rooted in the general obligation of dis-

semination to the civilian population mentioned in the 1949 GCs:
[t]he High Contracting Parties undertake, in time of peace as in time

of war, to disseminate the text of the present Convention as widely as
possible in their respective countries, and, in particular, to include the
study thereof in their programmes of military and, if possible, of civil in-
struction, so that the principles thereof may become known to the entire
population […].13
The words “if possible” should not be considered as rendering the implemen-
tation of ihl dissemination programmes for the civilian population optional
for States. As established by historical records of preparatory work for the Con-
ventions, it is rather a way to accommodate the limitation of competences
of certain federal States as concerns the content of education programmes.14
Additionally, api spells out that
[t]he High Contracting Parties undertake, in time of peace as in time

of armed conflict, to disseminate the Conventions and this Protocol as
widely as possible in their respective countries and, in particular, […] to
encourage the study thereof by the civilian population, so that those in-
struments may become known […] to the civilian population.15
apii is less detailed as regards the obligation to disseminate its content, lim-
iting itself to state that “[t]his Protocol shall be disseminated as widely as
possible”.16 The obligation to disseminate ihl within the civilian population
can also be said to have reached customary nature, as illustrated by Rule 143 of
the icrc Customary ihl Study: “States must encourage the teaching of inter-
national humanitarian law to the civilian population”.17
While the obligation to disseminate ihl in universities is not per se men-
tioned in those various provisions, it can be derived from their contents, which
13 Articles 47, 48, 127, 144 common to the GCs.

14 2016 icrc Commentary gci, para. 2757.
15 Article 83(1) api.
16 Article 19 APII.
17 Rule 143 icrc Customary ihl Study.
8 Kuster
is quite general as regards the way to implement the obligation to dissemi-

nate ihl to the civilian population.18 Disseminating ihl in universities should
rather be considered a means to an end, but it is hard to imagine how “civilian
authorities, […] members of the executive, legislature and judiciary, as well as
law enforcement officers”19 could become familiar with ihl rules and underly-
ing principles if not through tertiary education institutes such as universities
and specialized academic centres.
Additionally the obligation to disseminate ihl to the civilian popula-
tion applies to the whole of its provisions, including those applicable in non-
international armed conflicts.20 It is also an obligation applying in times of
peace and armed conflicts alike.21 Hence, one can conclude that there must be
structures put in place to ensure the fulfilment of this obligation at all times.
Logic and experience demonstrate that universities are certainly best placed
to play such a role.
Neither the existing ihl provisions, nor their commentaries provide much
detail on the quantitative and qualitative aspects of ihl dissemination to the
civilian population. How many educational structures should be dedicated to
such programmes? What should be their length and content? Which students
should they address? The 1952 and 2016 Commentaries to the GCs provide re-
spectively that “[e]veryone, whether military or civilian, should have a good
knowledge of the Convention, and should themselves be imbued with the
sentiments of which it is so profound an expression”22 and that “[d]issemi-
nation aims at making the spirit of the Geneva Conventions understood by
all people and to have their content internalized rather than their text simply
publicized”.23 Hence, both Commentaries suggest that the mere teaching of
ihl, be it in academia or elsewhere, does not suffice to have States’ obligations
fulfilled. It is then submitted here that lecturers teaching ihl in programmes
of civil instruction should also provide guidance to their students as to the let-
ter and spirit of ihl, which is and remains to preserve humanity in the midst
of armed conflicts by protecting persons who do not or no longer take part in
hostilities and by limiting the means and methods of warfare.24 In that regard,
it is also important to recall here that the obligation of dissemination should
18 See also: 2016 icrc Commentary gci, para. 2770.

19 Ibid, para. 2778.
20 Ibid, para. 2769.
21 Ibid, paras. 2764–2766.
22 1952 icrc Commentary gci, at 348.
24 See: notes 22, 23.
be read closely with the obligation to respect and ensure respect that are clear-
ly spelled out in common Article 1 of the four GCs.25
While the term dissemination is used to define the legal obligation existing in
the GCs and their APs, teaching is the term mostly used in common language
to define any activity aimed at passing on knowledge between individuals, es-
pecially in any academic context. For the sake of this article, dissemination will
be used to refer to the legally-grounded general effort to provide knowledge on
ihl through programmes of civil instructions. Teaching will be used to address
the specific aspects of this effort in academia, such as course structure, meth-
odology and pedagogical tools.
Beyond the mere legal obligation on which it rests, teaching ihl in univer-
sities also represents a crucial asset in a world prompt to dehumanize enemy
individuals and nations. It allows students reflecting on their own perception
and understanding of the compromise that ihl seeks to achieve between
humanity and military necessity. Through the dilemmas inherent in this body
of law, the study of ihl by generations of students provides a crucial reminder
to society that the reality of armed conflicts is never black or white, but, as ob-
served in the natural environment, diverse, nuanced, and subtle.
3 The Contribution of Universities to ihl Dissemination

and Implementation
As seen above, while insisting on the obligation to include dissemination of

its content in programmes of civilian instruction, ihl leaves the responsibility
to States, or even to provincial entities in certain cases, to identify the means
to fulfil their obligation. Hence, it is proposed here to look at contemporary
practice, rather than at legal terminology, in order to determine the role of
universities in disseminating ihl.
There are multiple actors contributing to the dissemination of ihl with-
in the civilian population in each country: primary and secondary schools,
universities and specialized academic centres, National Red Cross and Red
Crescent Societies, the icrc and the International Federation of the Red Cross
25 For further details on the extent of this double obligation, see: K. Dörmann, J. Serralvo,
‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent Interna-
tional Humanitarian Law Violations’, 96(895/896) irrc (2014), at 707; See also: K. Jastram,
A. Quintin, ‘Prevention in Practice: Teaching ihl in US legal Academia’, 96(895/896) irrc
(2014), at 987.
10 Kuster
and Red Crescent, the media, governmental agencies, civil society organiza-
tions and associations, and various individuals in their private capacity.
However, when it comes to universities, a few features lead one consider that
they play a crucial role in the dissemination of ihl. First and foremost, due to
the nature of ihl as a field of public international law, universities are prob-
ably best placed to teach it. Indeed, the role of universities is generally identi-
fied as pursuing academic excellence in teaching, learning, and researching
various scientific fields, and to empowering generations of students to make a
positive difference in the world.26 The next sub-sections seek to explore what
makes universities crucial actors for ihl teaching.
3.1 Experimenting with New Pedagogical Approaches by

Pursuing Excellence
The strong pedagogic component, along with the pursuit of academic excel-
lence, which is inherent to academic institutions’ missions, makes them key
agents of ihl dissemination. In addition, while law in general is also studied
in secondary level educational institutions, it is normally addressed more in-
depth at the academic level. Hence, universities are probably the best placed
actors to disseminate ihl to the civilian population.
It can be objected that ihl is a relatively simple and intuitive field of law,
which does not necessarily need the competence of an academic teacher to be
taught in an effective way to the civilian population. However, while this is true
for substantial rules of ihl (for instance, that it is prohibited to attack those
who do not or not anymore directly participate in hostilities or that means and
methods of warfare are not unlimited),27 it is not for numerous others (e.g.
classification of armed conflicts, scope of application of ihl, interactions with
other bodies of law, such as ihrl, etc.). Furthermore, the fact that universi-
ties are best placed as ihl dissemination actors does not mean that others
do not play a crucial role in that regard. For instance, primary and second-
ary schools or Red Cross and Red Crescent National Societies disseminate ihl
rules to a larger range of the civilian population, but through a more accessible
26 See for instance how some leading universities on various continents present their
respective missions: http://www.harvard.edu/about-harvard; https://www.cam.ac.uk/
about-the-university/how-the-university-and-colleges-work/the-universitys-mission
-and-core-values; http://tec.mx/en/tec-diference/formation-transforms-lives; http://
www.english.paris-sorbonne.fr/; http://www.uct.ac.za/main/about/history; http://www
.tsinghua.edu.cn/publish/newthuen/newthuen_cnt/about-th/about-1.html; http://www
.msu.ru/en/info/history.html.
27 Common Article 3 GCs; Rule 6 icrc Customary ihl Study; Article 35(1) api; Article 22
Convention (iv) respecting the Laws and Customs of War on Land and its Annex: Regula-
tions concerning the Laws and Customs of War on Land (1907).
pedagogical approach. Moreover, military schools disseminate ihl rules to

key actors of armed conflicts, but through a more pragmatic approach. While
working in a complementary way with other dissemination actors, universities
can certainly play the role of a driving force in the ihl dissemination field,
constantly seeking to innovate and improve teaching methodologies and tools
to equip their students with key knowledge and skills allowing them to make a
difference in the implementation of the rules in today’s world. As an example,
nalsar University in India was among the first to set up a distance learning
course of ihl.28 In 1989, the Jean-Pictet Competition in ihl, although not
organized by a university as such, but a flagship training event for students,
brought huge innovation in the field of teaching by introducing role-playing
as a new way to compete on ihl.29 Today, a comparable innovation can be
seen with the Syrian Virtual University, which is developing a Master in ihl
that will hopefully allow generations of students affected by armed conflict to
have the possibility to study its rules.30 Beyond this crucial pedagogical aspect,
as elaborated below in greater detail, the capability of universities to equip
future generations with professional knowledge make them especially suited
to ensure that their courses are effective to implement ihl in the mid- to
long-term.
3.2 Educating Current and Future Decision-Makers

Universities provide an important contribution to ihl implementation by
equipping future professionals with ihl knowledge that will directly support
their work: law schools train future judges, prosecutors and attorneys, who
provide an essential contribution to the work of domestic, internationalised,
or purely international courts prosecuting ihl violations, as well as regional
human rights courts dealing increasingly with ihl issues. They also train fu-
ture legal advisers to governments, international organizations and ngos,
who will draft and review policies, opinion papers and contribute to shape
the debate on emerging humanitarian issues. Schools of political science and
international relations, as well as schools of diplomacy, provide future diplo-
mats with ihl knowledge, which can support their efforts when conducting
humanitarian negotiations. In certain countries, such as the United States of
28 See: https://www.nalsar.ac.in/admission-notification-p-g-diploma-courses-2017-18.
29 C. Lanord, M. Deyra, ‘Dissemination in Academic Circles: the Jean Pictet Competition’,
35(306) irrc (1995), at 341–346; Listen also to C. Lanord, Presentation and History of
the Competition, Commemorating Jean Pictet by Keeping his Legacy Alive, available at:
https://www.icrc.org/en/document/commemorating-jean-pictet-keeping-his-legacy
-alive.
30 For more information on the Syrian Virtual University, see: https://www.svuonline.org/.
12 Kuster
America or Canada, military law schools offer ihl courses to army officers, so
that they can advise their commanders on operational matters accordingly and
in compliance with the GCs and the APs.31 More generally, national adminis-
tration schools, faculties of political science and institutes of international/
diplomatic relations educate future politicians, ministers and heads of States,
making universities all the more relevant hubs for ihl dissemination. In addi-
tion, renowned university professors often advise governments on ihl;32 they
serve as members of National Committees on ihl implementation;33 they
form part of or advise high-level jurisdictions dealing with ihl issues, such as
the icty or the icc.34 Professors also serve as judges or amici curiae in interna-
tional and special tribunals prosecuting ihl violations.35
In recent years, universities, such as the Geneva Academy of International
Humanitarian Law and Human Rights (“Geneva Academy”), have also set up
executive education programmes on ihl and related matters to train various
professionals working in governments, the humanitarian field, or the media.36
Such training responds to an increased demand for practical knowledge and
skills that can directly be used in today’s professional environment. Executive
education programmes take the form of on-site and online courses/MOOC,
seminars/webinars and conferences that mix academic and non-academic
(field) experts to address contemporary and practical humanitarian issues by
referring to the existing ihl framework.37 As a result, humanitarian profes-
sionals working in situations of armed conflicts can rely on the existing legal
framework to e.g. negotiate access to civilian populations in need or draft
States’ policies compliant with ihl when it comes to conduct of hostilities or
detention-related matters. In that regard, universities create a link between
31 R.P. DiMeglio, ‘Training Army Judge Advocates to Advise Commanders as Operational

Law Attorneys’, 54(3) Boston College Law Review (2013), at 1185 ff. See also: http://www
.forces.gc.ca/en/about-reports-pubs-military-law-annual-2016-17/ch-1-who-we-are.page.
32 See for instance: https://www.geneva-academy.ch/masters/study-with-us/faculty/detail/
45-robert-kolb.
33 Table of National Committees and other National Bodies on International Humanitarian
Law, icrc, available at: https://www.icrc.org/en/document/table-national-committees
-and-other-national-bodies-international-humanitarian-law.
34 See for instance: https://en.wikipedia.org/wiki/Antonio_Cassese; http://opiniojuris.org/
2010/03/03/tim-mccormack-appointed-icc-advisor/.
35 See for instance: https://www1.essex.ac.uk/hrc/news_and_seminars/newsEvent.aspx?e_id
=6586.
36 See: https://www.geneva-academy.ch/executive-education/by-theme.
37 See for instance: the Violence against HealthCare mooc on the coursera platform:
https://www.coursera.org/learn/violence-against-healthcare.
academic knowledge and field reality, which is crucial to favour ihl imple-
mentation in the daily reality of field work.
A particular example of such professionalization of ihl studies can be seen
in the increased number of field simulations on humanitarian action conduct-
ed by universities such as Harvard in the US or the Institut Bioforce in France,
notwithstanding the numerous fictitious simulations and moot courts run by
Universities, such as Hong Kong University (in collaboration with the Hong
Kong Red Cross and the icrc) with the support of professional judges.38 Their
capacity to innovate and train future decision-makers make universities im-
portant agents for ihl dissemination. They can also empower civil society and
trigger IHL-related discussions by bringing different actors to the table.
3.3 Supporting Civil Society and Facilitating IHL-Related Dialogue

and Dissemination
Universities often play the role of civil society fora, where knowledge and ideas
can be shared and debated. In certain institutions, law clinics run by profes-
sors allow students to put their knowledge in practice by serving ngos and
civil society organizations on a pro bono basis. University professors also serve
in various high-level functions at the UN39 and as board members of ngos40
(advising them on the best way to fulfil their respective mandates in favour of
the civilian population). They also create associations that undertake ihl dis-
semination and humanitarian work. As an example, associations composed
of former ihl students have been created in West Africa to disseminate ihl
within civil society.41 In Mali, ihl professors have established an association
devoted to ihl dissemination and humanitarian aid.42 In this sense univer-
sities are among the few ihl dissemination actors that offer simultaneously
a direct link to government and to civil society circles. Hence, thanks to the
academic freedom space they offer, they facilitate IHL-related connections and
dialogue between governmental and a nongovernmental spheres and, through
38 See: https://hhi.harvard.edu/education/workshops/hric (Harvard Humanitarian Initia-

tive); http://humanitaire.institutbioforce.fr/fr/institut/visite-guid%C3%A9e (Institut
Bioforce); https://en.wikipedia.org/wiki/Hong_Kong_Red_Cross_International_Humani
tarian_Law_Moot (Hong Kong University).
39 See for instance: http://graduateinstitute.ch/home/study/academicdepartments/
international-law/people/resources/prof-clapham.html.
40 See for instance: https://genevacall.org/team/10130/.
41 The association is named RASAPRES and dedicates its efforts to the promotion of ihl
and humanitarian action: https://www.facebook.com/pg/Rasapres-Dih-Dh-107365648931
2531/about/?ref=page_internal.
42 Association pour la Promotion et la Diffusion du Droit International Humanitaire, http://
www.apddih.com/.
14 Kuster
conferences, open courses, and papers, are able to provide the general public
with ihl dissemination and different perspectives thereof.43 In that regard,
the role of universities as learning hubs with a potentially large outreach de-
serves to be explored.
3.4 Potentially Reaching Out to Large Audiences with Quality Knowledge

Beyond mere ihl teaching, the outreach of universities towards the civilian
population can probably exceed that of other teaching institutions, by virtue
of their public education mission and of their connections with the media
seeking academic expertise to support news analysis. Indeed, in essence, uni-
versities are learning hubs combining large outreach and quality knowledge
capacities. This puts them generally in a good position to disseminate quality
ihl knowledge to a large number of individuals within the civilian popula-
tion. Nevertheless, such potential is closely linked to the question of access to
tertiary education for people in general, which varies significantly from one
region to the other.44
Traditionally, large-scale outreach ihl dissemination offered by universities
can take the shape of on-site open ihl conferences or courses in universities,45
but also web-livestreamed discussion panels and academic events.46 More
recently, ihl dissemination has taken another turn with the emergence of
massive open online courses (moocs), which appear to be very powerful dis-
semination tools combining massive outreach and academic excellence.47
Universities can also make ihl knowledge accessible to a larger public through
interviews of academic experts in media.48 Last, but not least, universities
make publicly available (through their public libraries and online) numer-
ous research and briefing papers and publications, which contribute to make
43 See for instance: the Geneva Academy ihl Talks on: https://www.youtube.com/channel/
UCFOlAB1zF8jMZkzHqGFipvg.
44 See infra Chart Enrolment in Tertiary Education, Our World in Data, https://ourworldindata
.org/tertiary-education/.
45 See for instance: https://www.dal.ca/news/events/2017/09/29/13th_annual_international
_humanitarian_law_conference__protection_of_children_in_war.html.
46 See supra note 43.
47 See for instance: https://www.edx.org/course/international-humanitarian-law-louvainx
-louv16x-0 (Université de Louvain); https://hhi.harvard.edu/elearning/core-concepts
-international-humanitarian-law (Harvard Humanitarian Initiative).
48 See for instance: https://www.youtube.com/watch?v=JM7yDf6gSRY; http://www
.aljazeera.com/indepth/opinion/trigger-war-korean-peninsula-170929163406964
.html.
quality IHL-related knowledge accessible to a larger audience.49 Through all

these channels, universities can potentially play an important role to dissemi-
nate the law to large parts of the civilian population by providing free access to
quality ihl knowledge.
In practice though, it appears that, apart from interviews of ihl experts in
mass media, knowledge made available by universities seems rather used by
specialized audiences, such as experts, researchers and lecturers themselves,
civil society, or postgraduate students. Hence, while universities remain best
placed to play the role of quality ihl disseminators for large audiences, an
important gap must be closed in order to express this potential fully. After re-
viewing various reasons why universities are objectively best placed to fulfil
the ihl dissemination obligation in each country, the following section will
discuss how the icrc’s approach to support teaching of ihl in academia was
shaped in the 1990s.
4 Shaping the icrc’s Approach to Universities: The Situation in

Former u.s.s.r. Republics and the Creation of the icrc
Advisory Services
Starting in the 1980s, the icrc has supported the teaching of ihl in specific
circles on a systematic basis: military and police forces, government and
judiciary representatives, diplomats, academics, secondary schools students,
Red Cross and Red Crescent Movement, humanitarian professionals, and the
general public.50 While the 1980s saw the emergence of some landmark peda-
gogical initiatives, such as the Warsaw course in ihl or discussions around a
possible icrc ihl textbook,51 ihl dissemination programmes for academics
really took off in the 1990s, shortly after the collapse of the u.s.s.r. and the
creation of the icrc’s Advisory Services in ihl.52
49 See for instance: https://www.geneva-academy.ch/our--projects/publications (Geneva

Academy); https://www.law.berkeley.edu/library/dynamic/guide.php?id=93 (Berkley
Law); https://home.heinonline.org/titles/Law-Journal-Library/AsiaPacific-Yearbook-of
-International-Humanitarian-Law/?letter=A (University of the Philippines).
50 M. Harroff-Tavel, ‘The International Committee of the Red Cross and the Promotion of
International Humanitarian Law: Looking Back, Looking Forward’, 96(895/896) irrc
(2014), at 837–846.
51 Ibid, at 832–834.
52 Ibid, at 842–843; A. Bouvier, K. Sams, ‘Teaching International Humanitarian Law in Uni-
versities: The Contribution of the International Committee of the Red Cross’, 5 yihl
(2002), at 382.
16 Kuster
As concerns the first event, it is the emergence of dozens of newly inde-

pendent countries gathered in the “Commonwealth of Independent States”
(c.i.s.), rather than the collapse of the u.s.s.r. itself, which was at the origin of
the first proper academic programmes run by the icrc in Eastern and Central
Europe, and in Central Asia. Indeed, with the independence of those new re-
publics came the necessity to ratify relevant ihl treaties and adopt appropri-
ate national legislation to implement them. This is also when national ihl
committees were established. The idea behind those national entities was to
“advise and assist governments in implementing and disseminating ihl and to
facilitate cooperation between national committees and the icrc”.53 In prac-
tice, they are often inter-ministerial entities, composed of various government
representatives and academic experts, with a mandate that can slightly differ
from one country to the other.54 In parallel to the establishment of national
ihl committees, the icrc’s Advisory Services in ihl were created, following
Resolution 1 adopted by States parties to the GCs and by the representatives
of the Movement at the 26th International Conference of the Red Cross and
Red Crescent in December 1995.55 Their mandate has since been to “provide
specialist legal advice to governments on national implementation [of ihl]”.56
On those bases, the icrc started supporting c.i.s. countries in their efforts
to ratify ihl treaties and translate their obligations through relevant national
legislation as of the 1990s. Very soon however, it became clear that additional
ihl expertise was needed in each country, in order to carry out such efforts
meaningfully.57 Hence, the icrc’s Advisory Services also supported the estab-
lishment and running of national ihl committees composed of representative
of various ministries and experts, who would advise and support their respec-
tive governments in these tasks.58 In general, each of those committees would
comprise one or several academics from amongst the most versed in ihl, as
well as representatives of education ministries or sometimes Ministries of Uni-
versities. In the experience of the icrc, these professors and academic experts
have often played a prominent role in drafting national legislations imple-
menting ihl in their respective countries.
53 P. Berman, ‘The icrc’s Advisory Service on International Humanitarian Law: the Chal-
lenge of National Implementation’, 26(312) irrc (1996), at 338–347.
54 For more information on ihl committees, see: https://www.icrc.org/en/document/
table-national-committees-and-other-national-bodies-international-humanitarian-law.
55 Berman, supra note 53.
56 Ibid.
57 L. Vierucci, ‘Promoting the Teaching of International Humanitarian Law in Universities:
the icrc’s Experience in Central Asia’, 83(841) irrc (2003), at 157.
58 Berman, supra note 53.
The experience of c.i.s. countries can be considered as having played a key

role in shaping the icrc’s academic programme. It has done so by combin-
ing the formal inclusion of ihl in academic curricula through promotion and
negotiation with education authorities and the development of ihl expertise
through training events and pedagogical tools for academics. Those two com-
plementary aspects of the icrc’s academic programme can be defined as the
structural and the pedagogical approaches,59 each of which will successively
be developed further below.
4.1 Structural Approach: Ensuring Durable and Sustainable Teaching

of ihl
In parallel to the window of opportunity that the establishment of the c.i.s.
opened for the icrc’s academic programme,60 the Red Cross and Red Cres-
cent Movement’s “Guidelines for the ‘90s” represented a turning point for
dissemination efforts. They were adopted after a decade of regular dissemi-
nation engagements with various actors,61 and offered the Movement’s first
official guidance on the matter, defining scope, target audiences, approaches
and means for meaningful ihl dissemination efforts.62 From 1995 to the 2000s,
dissemination of ihl took a more systematic and organized turn in terms of
structure, while seeing innovative pedagogic ideas and solutions.63
4.1.1 Integrating ihl into the Academic Curricula

In parallel to running train-the-trainer activities and developing teaching
tools,64 the icrc developed contacts with education authorities, most of them
designated as Ministries of Universities in c.i.s. countries. The structural part
of the icrc’s minuni programme hence consisted in promoting the formal
inclusion of ihl in academic curricula of leading universities and developing
formal cooperation agreements with education authorities to achieve that pur-
pose.65 Today, it is estimated that at least over 40 universities in c.i.s., central
59 S. Hankins, ‘Promoting International Humanitarian Law in Higher Education and Univer-

sities in the Countries of the Commonwealth of Independent States’, 37(319) irrc (1997),
at 447.
60 Bouvier, Sams, supra note 52., at 389; Harroff-Tavel, supra note 50, at 842.
61 See infra Section 3.2.
62 International Red Cross and Red Crescent Movement, ‘Guidelines for the ’90s’, 32(287)
irrc (1992), at 175–178; see also: Harroff-Tavel, supra note 50, at 839–840.
63 Harroff-Tavel, supra note 50, at 846–847.
64 See infra Section 3.2.
65 Hankins, supra note 59, at 447–448.
18 Kuster
European countries and the Balkans, most of them considered leading ones in
their country, have integrated ihl into their academic curricula.
As for the shape of such inclusion, the icrc has left open the question of
whether ihl courses should be stand-alone ones or part of another course,
whether they should be addressed to graduate or undergraduate students, be
compulsory or elective.66 It has also left open the question of the number of
teaching hours that should be dedicated to an ihl course, focusing on the in-
clusion of the discipline in curricula as such by adapting it to the reality faced
in the field. Last, while outreach was quite generalized to most faculties of law,
international relations, political science and journalism at the beginning of the
programme, the icrc adopted a more selective focus on leading faculties in
the 2000s, in order to equip future decision-makers with knowledge that would
help them lead IHL-compliant policies once they obtain positions of influ-
ence. Those various approaches were reflective of the Guidelines of the ‘90s,
which insisted on the necessity for ihl disseminators to adapt programmes
to the local environment and base them on what was needed and feasible.67
These flexibility and feasibility principles were then formally crystallized in the
first icrc’s guidelines for ihl teaching in universities, and in teaching aids,
such as “How Does Law Protect in War”, proposing various possibilities to inte-
grate ihl in curricula.68
4.1.2 Contextualizing ihl Teaching

Due to the success of the approach in c.i.s. countries, the minuni programme
was replicated on the five continents starting at the end of the 1990s. For in-
stance, in India, in 1998, ihl was integrated in the curricula of undergraduate
ll.b. programmes conducted by the 550 law colleges affiliated to them, while
some twenty universities offered a full optional course in ihl.69 Moreover, 35
universities offered a Master’s programme in defence and strategic studies, with
an optional course on ihl.70 In the US in 2012, 42 schools were offering ihl as
a stand-alone course,71 while ihl Teaching Supplements allowed the integra-
tion of ihl into courses of national security law, international criminal law
and constitutional law.72 In South Africa in 2009, 10 universities were offering
66 Bouvier, Sams, supra note 52, at 385–86. See also: Hampson, supra note 10, at 2–3.
67 International Red Cross and Red Crescent Movement, supra note 62, at 176, 178.
68 Bouvier, Sams, supra note 52, at 386–87; Sassòli, Bouvier, Quintin, supra note 2.
69 U. Kadam, ‘Teaching International Humanitarian Law in Academic Institutions in South
Asia: An Overview of an icrc Dissemination Programme’, 83(841) irrc (2001), at 167–169.
70 Ibid.
71 Jastram, Quintin, supra note 25, at 999.
72 Ibid, at 1005.
ihl as part of another course (mostly public international law), compulsory

or elective, and one was offering it as a stand-alone elective course.73 In China
in 2006, most of the public international law textbooks used in universities
contained a brief module on IHL/laws of armed conflict, but only two univer-
sities were offering specialisation in ihl to students opting for specialization
in international law.74 In Colombia in 2006, the integration of ihl in curricula
of targeted schools was reported to be successfully completed, with ihl being
taught at undergraduate level in nine universities and at postgraduate level in
one.75 While those results only represent a few examples of ihl integration in
university teaching – some of them probably not anymore reflecting the reality
of ihl teaching in the country today – they nevertheless illustrate how suc-
cessfully the ihl integration track took off at the end of the 1990s following the
c.i.s experience and how diversified its implementation has been worldwide.
While expanding geographically at various paces, the icrc’s academic pro-
gramme was influenced by the result of the icrc’s study on “Roots of Behavior
in War”, published in 2005, which sought to understand the decisive factors
bringing armed actors to comply or not with ihl.76 Based on the study’s find-
ings, the icrc developed its Prevention Policy in 2008 that further shaped
the organization’s approach towards ihl dissemination.77 Accordingly, all
icrc dissemination programmes became part of an overall prevention ap-
proach, seeking to create an environment conducive to respect for life and
dignity in each context by combining efforts to influence a variety of audi-
ences on various scales (local, regional, global) and in a coherent, sustainable,
and measurable way.78 As a result, academic programmes nowadays, although
continuing to support ihl teaching in universities in general, should focus on
humanitarian issues of relevance in each context and develop partnerships
with academic actors that can have an (indirect) influence on those issues.
After more than three decades of supporting the teaching of ihl in academic
circles, the icrc has refined its approach: it now insists on privileging the-
matic partnerships with established and new academic players that result in
conferences and training events, as well as research projects.79 Using social
73 Internal report, icrc, 2009.

74 Internal report, icrc, 2006.
75 Ibid.
76 Harroff-Tavel, supra note 50, at 846–849.
77 Prevention Policy, icrc, 2010, available at: https://www.icrc.org/en/publication/4019-icrc
-prevention-policy.
78 Ibid, at 9, 11–15.
79 Teaching, Debating, Researching International Humanitarian Law, Action and Policy in
Universities, icrc, 2016, available at: https://www.icrc.org/en/publication/0949-icrc-and
-universities-working-together-promote-international-humanitarian-law.
20 Kuster
media, online questionnaires and statistics, and individual stories, academic

programmes nowadays also seek to measure their own quantitative and quali-
tative progress.80
4.1.3 Supporting the Establishment of ihl Academic Centres

Another icrc initiative that deserves to be mentioned is the support provid-
ed worldwide to the creation of the first academic centres specialized in ihl.
Starting in 1992, discussions were held at the icrc Headquarters in Geneva to
establish a university centre dedicated to ihl studies. In 2002, the University
Centre for ihl (ucihl) was co-created by the University of Geneva, Faculty
of Law, and the Graduate Institute of International and Development Studies,
following an initial proposal and impulse from the icrc. The Centre, renamed
Geneva Academy of International Humanitarian Law and Human Rights in
2007,81 has since trained scores of students. The curriculum of the ll.m. that
it delivers does not only comprise ihl courses, but also the study of various
branches of international law forming what the Centre calls the “international
law applicable in armed conflict”. Hence, students receive multi-disciplinary
teaching on ihl, ihrl, public international law relating to the use of force,
international criminal law and other legal disciplines, such as refugee law.
Until now, over 700 Geneva Academy graduates have taken positions in orga-
nizations, such as the UN, the icrc, the ohchr, the unhcr, Médecins sans
Frontières, the icc, and the ECtHR.82 The icrc has continued supporting the
centre since and developed collaborations in various fields, such as the train-
ing of ihl professors worldwide,83 the development of teaching and research
tools,84 and various research projects.85 In similar developments, the icrc also
80 Guidelines, icrc Relations with Academic Circles to Foster an Environment Conducive

to Respect for ihl and Humanitarian Action, Internal document, icrc, 2014, at 7.
81 Geneva University sets up University Centre for International Humanitarian Law,
icrc, news release, 2002, available at: https://www.icrc.org/eng/resources/documents/
news-release/2009-and-earlier/5c6j3a.htm.
82 See: https://www.geneva-academy.ch/masters/study-with-us/why.
83 See: https://www.icrc.org/en/event/12th-advanced-seminar-international-humanitarian
-law-university-lecturers-and-researchers.
84 Since 2014, students from the Geneva Academy and the University of Geneva have devel-
oped new case studies for the “How Does Law Protect in War?” online platform on a yearly
basis and under the supervision of Professor Sassòli and Teaching Assistant Yvette Issar.
See: https://casebook.icrc.org/; students from the Geneva Academy have also contributed
to the editing of articles of the International Review of the Red Cross. See: https://www
.geneva-academy.ch/masters/ll-m/programme/internships.
85 In 2017, students from the Geneva Academy supported the icrc to finalize the “ihl
in Action” research project. See: https://ihl-in-action.icrc.org/. See also: “Armed Non-
State Actors and the Protection of Civilians”, another research project developed by the
supported the establishment of other specialized centres, which also contrib-

uted to train students and develop ihl expertise in other regions.86
4.1.4 Partnering with ihl Clinics

In recent years, the study of ihl in universities has also reached a more pro-
fessional level, with the establishment of dedicated law clinics allowing stu-
dents to mobilize their knowledge for various professional ihl projects, in
partnership with international and non-governmental organizations. Such
possibilities exist today in Canada, the US, the Netherlands, Switzerland, Italy
and Israel.87 Lately, the icrc has cooperated with four of such ihl clinics to
develop “ihl in Action”, an online database allowing the study of ihl through
case studies illustrating how it is concretely and successfully implemented in
the field.88 While these ihl clinics are the result of the admirable and continu-
ous commitment of ihl professors running them, the longstanding support of
the icrc to ihl teaching in universities, along with that of its Red Cross and
Red Crescent partners,89 has certainly played a role to increase the quality of
ihl teaching to a point that it could materialize in something more, such as
those clinics. In the future, it is expected that ihl clinics will continue flour-
ishing worldwide with the support of the existing ones and the icrc. Indeed,
those centres bridge an important gap between ihl theory and practice, an es-
sential contribution for the study of ihl, which remains a very pragmatic and
rapidly professionalizing field.
Geneva Academy in collaboration with the icrc: https://www.geneva-academy.ch/

our-projects/our-projects/armed-conflict/detail/17-armed-non-state-actors-and
-the-protection-of-civilians.
86 See for instance: the Centre for International Humanitarian Law hosted by the Faculty of
Political Sciences in Belgrade, which organized the “Belgrade Course on ihl” for students
across the Balkan region for several years: http://mhp.fpn.bg.ac.rs/eng/news.html.
87 See: https://www.cdiph.ulaval.ca/ (Université Laval, Canada); http://law.emory.edu/aca
demics/clinics/international-humanitarian-law-clinic.html (Emory Law, United States
of America); http://kalshovengieskesforum.com/ihl-clinic/ (Leiden University, Nether-
lands); https://www.geneva-academy.ch/masters/ll-m/programme/internships (Geneva
Academy, Switzerland); http://www.giur.uniroma3.it/materiale/avvisi/2017/Call%20IHL
%20Legal%20Clinic%20Fall%202017.pdf (Roma Tre, Italy); https://www.idc.ac.il/en/
schools/law/clinics/pages/the-international-criminal-and-humanitarian-law
-clinic.aspx (idc Herzliya, Israel). For more details on ihl clinics in the U.S., see: L. Blank,
D. Kaye, ‘Direct Participation: Law School Clinics and International Humanitarian Law’,
96(895/896) irrc (2014), at 943–968.
88 See: note 85.
89 See in particular the support offered by the Dutch and the Italian Red Cross National
Societies to the ihl clinics in their respective countries in that regard.
22 Kuster
4.2 Pedagogical Approach: Empowering the Trainers to Teach ihl Based

on Contemporary Practice
Going back to 1981, the icrc ran the first edition of the Warsaw course on ihl
in partnership with the Polish Red Cross National Society. A landmark ihl
training event, it represented an important first step for the organization’s
pedagogical approach to teach ihl in academic circles on a regular basis.90
Some 30 editions of the course took place until 2012, bringing numerous stu-
dents, professors and, subsequently, humanitarian professionals, to pursue
their professional path in the field of humanitarian law and related disciplines.
Amongst those, a certain number have acquired a solid reputation in that field,
and have contributed to promote and implement ihl in various capacities.91
4.2.1 Setting Train-the-Trainer Courses

It is rather in the nineties that the icrc developed a comprehensive number of
courses and seminars for students and then professors in Eastern and Central
Europe, as well as Central Asian countries. At first targeting mostly students,
training activities progressively shifted their focus to professors. Realizing the
enormous impact that training university professors could make on dissemina-
tion, the icrc moved progressively from a direct to an indirect teaching model,
prioritizing a train-the-trainer approach.92 This shift was then crystallized in
icrc guidelines for ihl teaching in universities and influenced by the Pre-
vention Policy.93 In practice, it encouraged the icrc to develop events focus-
ing specifically on ihl professors’ needs. One can mention the ihl professors’
round tables, which continue taking place in numerous countries and regions
today.94 Organized by the icrc, those events gather professors, lecturers, and
researchers in icrc’s partner universities. They aim to take stock of the status
of ihl courses in partner universities, their length, modality, level, number
of students attending them, participation in ihl competitions, etc. They also
represent a forum for discussion on upcoming events and new tools in the field
90 Harroff-Tavel, supra note 50, at 832.

91 For the recollection of memories about the Warsaw course from Alumni, who have since
their participation become ihl experts renowned worldwide, see: http://www.redcross
.int/EN/mag/magazine2003_2/22-23.html.
92 See for instance: icrc, ‘International Committee of the Red Cross Training Seminar on
International Humanitarian Law for University Teachers’, 81(836) irrc (1999), at 959.
93 See: Bouvier, Sams, supra note 52, at 384–85.
94 Such round tables and lecturers’ workshops currently take place at regional level in
Northern America, the South African region, the North-Caucasus region and the South-
Eastern Asia region. Several others take place at national level in a dozen of countries
worldwide. For more information, see: Annual Report, icrc, 2016, at 82, 183, 315, 317, 340,
361, 376, 422, 438, 472, 479.
of ihl. Last but not least, in certain regions, such as Africa and Asia, they allow
monitoring the status of regional ihl yearbooks, which offer academics op-
portunities to publish on topics of expertise in accredited academic journals.95
Numerous ihl courses, seminars, advanced seminars, and workshops initiated
by the icrc in collaboration with its academic partners take place in various
countries and regions worldwide, such as the South Asia Teaching Session on
ihl, the All Africa Course, the Transatlantic Workshop on ihl, or the Bruges
Colloquium.96 Lasting from a few days to two weeks, most of them address
ihl substance and teaching methodology through formal teaching sessions,
case studies, colloquia, peer-to-peer exchanges, IHL-related movie screening
and commenting. In terms of trends, it seems the icrc is nowadays prioritiz-
ing shorter and more flexible approaches: it organizes workshops allowing ihl
lecturers to focus on themes of relevance in the region concerned, as well as
to brainstorm on innovative teaching and learning methodology and tools.97
4.2.2 Supporting Multi-Disciplinary Expertise

Another well-established trend in the icrc’s pedagogical approach has con-
sisted of integrating non-legal academic experts in its events and publications,
in order to reflect on ihl in a more multi-disciplinary way that links legal
substance to contemporary practice, humanitarian action, ethics, and other
disciplines taught at academic level.98 In that regard, the icrc has also orga-
nized conference cycles at headquarters and in the field, gathering academics
from various disciplines to reflect on humanitarian issues faced currently on
the battlefield.99 This expansion in other, non-legal fields is also due to a dis-
turbing claim that “respect for ihl is eroding” or that “ihl itself is eroding”.100
95 Such as in the South African or the South-East Asian region. See: note 49.
96 For a non-exhaustive list of such events, see: https://www.icrc.org/en/download/file/
36196/ihl_activities-7feb2017.pdf.
97 Such workshops have taken place in Bamako, Kinshasa, or Amman for instance.
98 See for instance the evolution of the way themes are treated in the International Review
of the Red Cross since the 2000s, or the conference cycles the icrc has organized on
various IHL-related themes of relevance since 2014: https://www.icrc.org/en/war-and
-law/law-and-policy; See also the call made by Professor X. Philippe for multi-disciplinary
teaching of ihl: X. Philippe, ‘Enseigner le Droit International Humanitaire’, in C. Lanord,
J. Grignon, J. Massé (eds.), Tribute to Jean Pictet par le Concours de Droit International
Humanitaire Jean-Pictet (2016), at 599–600.
100 See for instance: A. Dieng, We Must Stop the Erosion of International Humanitarian Law,
http://www.justiceinfo.net/en/justice-reconciliation/25124-we-must-stop-the-erosion
-for-international-humanitarian-law.html; B. Wittes, Notes on the Erosion of Norms of
Armed Conflict, https://www.lawfareblog.com/notes-erosion-norms-armed-conflict.
24 Kuster
Although a mere matter of perception, rather than evidence, it has made it nec-
essary for the icrc to develop the study of ihl beyond its mere rules, in order
to better understand why ihl is (or is not) respected in current armed conflicts,
what large-scale humanitarian consequences, such as displacement and mi-
gration, ensue when the law is not respected and what contribution respect
for ihl can make to restoring peace.101 Hence, teaching ihl in academia today
also means having an interdisciplinary understanding of the law and on the
issues mentioned above, in order to respond to possible students’ claims about
its alleged erosion, an issue flagged soon enough by Professor Marco Sassòli,
which he calls the “credibility gap”.102
4.2.3 Organizing Students’ Competitions

Besides organizing train-the-trainers events, the icrc has supported and (co-)
organized students’ competitions in ihl for decades. Namely, it has supported
the Jean-Pictet Competition, organized by an independent committee, since
the 1990s.103 The icrc has also created dozens of similar events, most of them
modelled after the Pictet Competition, at national and regional level. Today,
it organizes or co-organizes some 30 students’ competitions at national level
and six regional competitions worldwide.104 For a certain number of these, the
icrc partners with professional associations. This is for instance the case for
the Henry-Dunant Memorial Moot Court Competition in South Asia, which
has benefitted from the support of the Indian Society of International Law
(isil) for years and allowed to deepen the relationship with the icrc.105 Most
101 The results of this research endeavours are expected in 2018 and will be made public
through the icrc’s Law and Policy newsletter. To subscribe to it, interested readers can
click on the “subscribe button” on the following web page: https://www.icrc.org/en/law
-and-policy-newsletters.
102 Sassòli, Bouvier, Quintin, supra note 2, Chapter 13, at 87–88; M. Sassòli, Y. Issar, ‘Challenges
to International Humanitarian Law’, in A. von Arnauld, N. Matz-Lück, K. Odendahl (eds.),
100 Years of Peace Through Law: Past and Future (2015), at 223–226.
103 See supra note 29. For more information on the Jean-Pictet Competition and its first edi-
tion in 1989, see: Hampson, supra note 10, at 6–7.
104 E. Kuster, G. Dvaladze, Why Educating Students on Humanitarian Norms and Values
Matters, Humanitarian Law and Policy Blog, 29 July 2016, available at: http://blogs
.icrc.org/law-and-policy/2016/07/29/ihl-competitions-humanitarian-education/;
Regional ihl competitions take place in Western Africa (Concours Régional de Plai-
doiries en dih), Eastern Africa (All Africa Competition in ihl), Eastern Europe (Mar-
tens Competition), South Asia (Henry Dunant Memorial Moot Court Competition) and
South-East Asia (Hong Kong Red Cross ihl Moot). For more information on those events,
see: https://www.icrc.org/en/what-we-do/building-respect-ihl/education-outreach.
105 See for instance: http://blogs.icrc.org/new-delhi/2016/09/23/issues-international-law
-taken-front-row-seat-hon-ble-justice-madan-lokur/.
of those competitions consist of a series of role-play tests, in which students

have to endorse different roles – from lawyers advising military commanders
up to icrc delegates – and express various positions on facts reported daily in
the context of a fictitious armed conflict.106 Some of them resemble more for-
mal pleadings in front of a court, while others are based on written essays.107
While these events are aimed at students that the icrc considers potential
future decision-makers, they play a key role in triggering interest to study ihl.
Hence, they also contribute to ensure the sustainability of ihl courses by at-
tracting new students willing to “take the law out of the book”.108 For the icrc,
they also constitute opportunities to mobilize its network of ihl lecturers
and professionals to assess students’ performances. The studious but informal
atmosphere surrounding students’ competitions contributes to generate and
consolidate multi-disciplinary networks supportive of ihl implementation in
each country, region, and at a global level.109 Those events are also key to al-
low students to interact with ihl professionals and get concrete perspectives
as to potential career paths, making them an indispensable part of the icrc’s
support to ihl teaching in academia. Students’ competitions illustrate prob-
ably best how the icrc’s events aimed at academic circles contribute not only
to promoting ihl, but also to developing networks of ihl experts and friends
over mid- to long-term, which can support humanitarian efforts in favour of
victims of armed conflicts.
4.2.4 Providing Generic ihl Tools

Even if the icrc had already developed some ad hoc pedagogical tools to
promote the teaching of ihl in academia as of the 1960s,110 it is rather in the
1990s that such work became more prominent in the organization’s pedagogi-
cal approach to academic circles. As seen above under the icrc’s “structural
approach”,111 an evolution shifting the icrc’s focus from students to professors
106 For an overview of this role-play methodology, watch the following movies: https://www
.youtube.com/watch?v=T2AVTycA454 (Jean-Pictet Competition); https://www.youtube
.com/watch?v=B83EdBUh9Vg (Philippines National Moot Court Competition); https://
www.youtube.com/watch?v=1NRfOQ2F1nc (Israel National ihl Competition).
107 See for instance the Hong Kong Red Cross Moot Court Competition: https://www.icrc
.org/en/document/china-hongkong-moot-court-2017-news-release; see also: the Henry
Dunant Memorial Moot Court Competition organized in India: http://blogs.icrc.org/new
-delhi/2014/07/10/kathmandu-law-school-wins-national-round-of-henry-dunant-moot
-court-competition-in-nepal/.
108 To better understand the meaning of this motto dear to the founders of the Jean-Pictet
Competition, watch the Jean-Pictet competition movie mentioned in note 106.
109 Kuster, Dvaladze, supra note 104.
110 H. Coursier, Course of Five Lessons on the Geneva Conventions, icrc (1963), at 109.
111 See: Section 3.1.
26 Kuster
also took place concerning pedagogic tools. It culminated in the first edition
of “How Does Law Protect in War?” in 1999, a key publication written by Marco
Sassòli, Antoine Bouvier and later on Anne Quintin, to accompany ihl profes-
sors in their teaching.112 While the book certainly benefitted from the icrc’s
experience in c.i.s. countries, its origins are to be found in the 1980s where,
in parallel with starting up the Warsaw course, the icrc was discussing the
best format for an ihl pedagogical tool specifically addressed to academics.
At that time, two ideas were competing: (i) a textbook presenting the main as-
pects of ihl to students; and (ii) a casebook allowing them to learn the law by
discussing case studies based on contemporary practice in armed conflicts.113
As a result, “International Humanitarian Law: An Introduction”, a concise ihl
handbook written by Hans-Peter Gasser, was published by the icrc in 1993 and
reportedly well received by students.114 However, the icrc also published “How
Does Law Protect in War?” a comprehensive ihl casebook with a ready-to-use
outline for professors, in 1999. This publication has since become a reference-
teaching tool worldwide.115 In 2016, “International Humanitarian Law: A Com-
prehensive Introduction”, a new version of the ihl handbook, was published
by the icrc in hard and soft copies.116 Written by Nils Melzer, it takes stock of
the evolution of ihl practice between 1992 and 2016 and allows readers to get
introduced to ihl in a way that generally reflects icrc’s perspective, as well as
dig in various topics through numerous hyperlinks. Similarly, “How Does Law
Protect in War?” has been translated into various languages and updated on
several occasions.117 However, its most remarkable development was the ad-
aptation of the heavy paper publication into a fully navigable online database
offering free and enhanced access to numerous ihl resources for professors
and students worldwide.118
Among many other ihl publications and tools,119 these handbooks and
casebooks, today fully accessible online for free, can both be considered as the
112 Sassòli, Bouvier, Quintin, supra note 2.

113 icrc, Internal Archives.
114 H.-P. Gasser, ‘International Humanitarian Law: An Introduction’, in H. Haug (ed.),
Humanity for All: The International Red Cross and Red Crescent Movement (1993).
116 N. Melzer, International Humanitarian Law: A Comprehensive Introduction (2016).
117 See: https://www.icrc.org/en/document/interview-how-does-law-protect-war-new
-edition.
118 Sassòli, Bouvier, Quintin, supra note 2.
119 See for instance the icrc e-learning basic course on ihl, available at: https://www.icrc
.org/en/document/basic-rules-and-principles-ihl#.VDuMgGd_v10; see also: the list of
various generic and thematic ihl digital tools developed by the icrc in recent years:
https://www.icrc.org/en/download/file/35083/virtual-online-tools-handout-jan2017.pdf.
main pedagogical tools supporting the icrc’s approach. They aim at ensuring
that ihl is taught according to its letter and spirit in universities worldwide.
This aim is also made possible thanks to the considerable efforts the icrc has
dedicated to translate those ihl tools and numerous others, along with ar-
ticles from the International Review of the Red Cross into many languages,
such as Russian, Arabic, Chinese, Spanish, French, Bosnian-Serbo-Croatian,
etc.120 Similarly, the icrc has also been supporting national authors publish-
ing textbooks on ihl after participating in related training. This was also a way
of teaching ihl rules in national languages and in a way that could be more
reflective of local culture.
4.2.5 Developing Thematic Digital Tools

In parallel to those generic ihl tools and drawing from them, the icrc has
developed thematic teaching tools allowing both law and non-law faculties to
teach on specific humanitarian and legal issues, such as protection of medi-
cal care, sexual violence in armed conflict and humanitarian access. Even in
the absence of a proper ihl course within curricula, ready-to-use workshops
allow students to explore humanitarian problems faced today in armed con-
flicts, the applicable legal framework and the humanitarian responses that can
be brought to those issues.121 They combine various pedagogical approaches,
such as inductive teaching, interrogative method, brainstorming, group work,
and tools, such as ready-to-use presentations with speakers’ notes, quiz, mov-
ies from the field and case studies. Similarly, and drawing from its Advanced
Seminar in ihl for University Lecturers and Researchers,122 the icrc has de-
veloped Advanced ihl Learning Series allowing professors to keep abreast of
the latest developments on a specific legal issue, such as the legal and policy
framework governing humanitarian action.123 The series consist of webpages
hosting videos, which feature renowned lecturers presenting and discussing
those topics, along with required readings and teaching material. They are also
The icrc also supported the writing of other textbooks, such as F. Kalshoven, E. Zegveld,
Constraints on the Waging of War: An Introduction to International Humanitarian Law
(2011); it also supported other casebooks, such as H. Seibst, Compendium of Case Studies
of International Humanitarian Law, icrc (1994).
120 See the various language versions of www.icrc.org, as well as various languages available
to download and purchase such tools on https://shop.icrc.org/.
121 Ready-to-use workshops, icrc, 2016, available at: https://casebook.icrc.org/pedagogical
-resources/thematic-workshops.
123 Advanced ihl Learning Series, icrc, 2016, available at: https://www.icrc.org/en/doc
ument/advanced-ihl-learning-series.
28 Kuster
designed to help ihl and non-IHL lecturers alike to introduce the topic in
their teaching. Finally, the icrc also developed several e-briefing, powered by
the International Review of the Red Cross, that allow academics approaching
specific issues through a multi-disciplinary way and various media.124
4.2.6 Moving from Teaching to Debating Tools

As concerns the Review, one of its oldest and best known dissemination tools,125
the icrc also made it evolve to help professors take into account contempo-
rary debates in their ihl teaching and research. The Review is also a means
allowing lecturers developing their expertise by submitting articles on legal
and humanitarian issues, such as “War in Cities”, “Scope of Application of the
Law” or “Generating Respect for the Law”.126 While the Review played a leading
role, triggering ideas and debates on humanitarian law, action and policy for
over a century, recent decades have seen an increased openness towards the
multi-disciplinary study of ihl through the lens of contemporary humanitar-
ian trends and problems.127 Today, the Review also powers the icrc’s “Humani-
tarian Law & Policy” blog gathering views from within and outside the icrc on
hot topics and fostering online and shorter discussions around them,128 as well
as thematic conference cycles.129 Similarly, the ihl debate has also become
more decentralized, with the development of regional ihl yearbooks in Africa
and the Asia-Pacific region.130 Such tools have encouraged lecturers to write
and debate ihl issues of relevance to their context and offer reference mate-
rial for governmental authorities, experts and researchers in each region.
The icrc’s pedagogical approach supporting the teaching of ihl in univer-
sities has considerably developed and evolved from the 1980s up to the pres-
ent. It has achieved worldwide outreach and has become more systematic,
124 E-briefing Library, icrc, 2017, available at: http://e-brief.icrc.org/.

126 For free access to these issues and more, consult the following web page: https://www
.icrc.org/en/international-review.
127 International Review of the Red Cross, ICRC/Cambridge University Press, available at:
https://www.icrc.org/en/international-review; see also: https://www.cambridge.org/core/
journals/international-review-of-the-red-cross.
128 Humanitarian Law & Policy, icrc, 2016, available at: http://blogs.icrc.org/law-and-policy/.
130 African Yearbook of International Humanitarian Law (ayihl), Juta and Company (Pty)
Ltd (Juta’s Law Journals) (2016), available at: https://journals.co.za/content/journal/
jlc_ayihl; Asia-Pacific Yearbook of International Humanitarian Law, University of the Phil-
ippines Law Center, Institute of International Legal Studies (2011), available at: https://
home.heinonline.org/titles/Law-Journal-Library/AsiaPacific-Yearbook-of-International
-Humanitarian-Law/?letter=A.
focusing on professors as mass and quality ihl disseminators.131 As concerns

tools, a comprehensive panoply has been developed, amongst which certain
publications have reached the status of references in the field of ihl teach-
ing.132 This is probably the result of both the persistence and imagination the
icrc has demonstrated over the past decades to promote the teaching of ihl
in academic circles and beyond.133 Such an achievement is also due to tech-
nological innovation, namely the development of the internet as of the 2000s,
which has provided a crucial contribution to the outreach of the icrc in the
field of ihl teaching. While those evolutions represent additional steps, it is
important to keep in mind that they do not mean the end of the initial peda-
gogical approach followed by the icrc. In that regard, those developments,
although a major breakthrough especially in the digital field, should be con-
sidered as new layers adding to the existing ones. The variety of pedagogical
tools and the flexibility of the structural approach enable the icrc to tailor its
academic programmes more precisely to the particular reality it faces in the
field. Indeed, depending on the availability of the internet, level of students,
their interest, the expertise and will of professors, and any other relevant factor
in each context, the icrc can adapt its support to ensure sustainable, relevant,
and quality teaching of ihl in universities worldwide.
5 Teaching ihl in Universities: Successes and Challenges
As seen above, ihl has probably never been as much taught in universities as
it is today.134 While there are no proper statistics assessing the overall num-
ber, shape, duration, and attendance of ihl courses taking place in academia
worldwide,135 it is estimated that at least some 600 universities worldwide have
131 In this regard, the icrc has also been supporting national authors, who happened to be
former participants in its training, in publishing textbooks on ihl. This was also a way of
disseminating ihl rules in a national language and reflective of local culture.
132 See for instance the “How Does Law Protect in War?” online platform especially addressed
to ihl lecturers: it was the most visited page with legal content on the icrc’s website in
2017, with over 136,000 unique visitors (source: GoogleAnalytics).
133 In this regard, see: V. Bernard, M. Nikolova, ‘Generating Respect for the Law: the Need
for Persistence and Imagination’, in C. Lanord, J. Grignon, J. Massé (eds.), Tribute to Jean
Pictet par le Concours de Droit International Humanitaire Jean-Pictet (2016), at 545–578.
135 A few surveys on ihl teaching in academia have been conducted, but rather at national
or sub-regional levels. For instance, see the survey conducted in the U.S. and analyzed in:
Jastram, Quintin, supra note 25, at 987–1027.
30 Kuster
integrated ihl in their curricula, in one way or the other.136 This is probably far
more than when the icrc started to promote the teaching of ihl in academic
circles on a regular basis in the 1980s. The number of dissertations addressing
ihl issues also seems to have increased dramatically,137 along with the num-
ber of IHL-related issues addressed by specialized academic blogs.138 To get an
idea of the overall quality and quantity of ihl teaching worldwide, an online
questionnaire was answered in spring 2017 by icrc focal points for relations
with academic circles worldwide. A majority of them estimated that ihl inte-
gration, understood as “the regular teaching of ihl in influential universities
and in a way that presents rules and principles correctly and pedagogically”,
was “average” to “high”.139 While such estimates should be taken as they are,
they nonetheless remain encouraging.
Similarly, it could be envisaged that possibly up to 100.000 professionals
work today in the field of ihl and/or in a related field.140 Social media groups
136 Source: internal icrc estimates.

137 For instance, search results for “International Humanitarian Law” in the Networked Digi-
tal Library of Theses and Dissertations (ndltd) provides close to 350,000 hits. See: http://
search.ndltd.org/search.php?q=international+humanitarian+law.
138 See for instance: “Opinio Juris”, http://opiniojuris.org/; “ejil:Talk!”, https://www.ejiltalk
.org/; “Lawfare”, https://www.lawfareblog.com/; “Intlawgrrls”, https://ilg2.org/; “JustSecu-
rity”, https://www.justsecurity.org/.
139 This internal survey was answered by 64 icrc focal points for relations with academic
circles on some 120. According to it, 40% of the focal points estimated that ihl integra-
tion was “average” in the context(s) they covered, while 30% thought ihl integration was
“high”. 20% of the focal points thought the level of ihl integration was “low”. Less than
5% estimated that ihl integration was “very high” and “very low” (source: icrc internal
survey).
140 This unverified estimate rests on the number of members of online professional groups,
associations and academia alumni, which are represented on the LinkedIN social network.
However, it should also be taken with caution, as a certain number of those professionals
might belong to several of those groups. In total, those professional groups gather more
than 100.000 members: International Humanitarian Law (11,576 members), International
Criminal Law (56,828 members), icc- International Criminal Court – Cour Pénale Inter-
nationale (4,472 members), iihl (820 members), Network of International Humanitarian
Law Professors (324 members), Anciens du Concours Jean-Pictet Competition Alumni
(259 members), ReliefWeb humanitarian discussion group (16,278 members), Interna-
tional Red Cross and Red Crescent Delegates (3,027 members), Humanitarian Profes-
sionals (20,567 members), International Humanitarian and Development Professionals
(19,906 members), Humanitarian Training (5,186 members), International Humanitarian
Networking Group (3,896 members), icrc – International Committee of the Red Cross –
icrc (2,284 members), Harvard Humanitarian Initiative (632 members), Program on
Humanitarian Policy and Conflict Research at Harvard (252 followers); Alumni, The
Geneva Academy of International Humanitarian Law and Human Rights (126 members);
see also relevant Facebook interest groups, such as ihl in academic circles (36,949 likes),
of professionals, university Alumni, ihl lecturers and researchers also help to

get a better idea about who these professionals are and the academic path they
followed to build their expertise in ihl.141 Alumni questionnaires can also help
monitor the impact of ihl teaching efforts. In this regard a questionnaire was
sent to some 1.000 former participants in the Jean-Pictet Competition in ihl
(among 3.000 in total). Among 327 respondents in 2016, 72% agreed that the
Competition influenced the development of their career, 58% said they were
currently working in the field of ihl and 42% were often able to reach out to
decision-makers about ihl.
Thanks to online monitoring of the number of web page visits, the num-
ber of ihl tools downloads, and the number of ihl professionals having
subscribed to its law and policy newsletter, the icrc can also measure how
popular its ihl tools are, such as the Review, “How Does Law Protect in War?”
and “International Humanitarian Law: A Comprehensive Introduction”.142
The successful integration of ihl teaching in academia worldwide is due to
a combination of factors, amongst which the admirable commitment of lec-
turers, universities and education authorities to teach ihl, the support of the
icrc and the Red Cross and Red Crescent Movement, the renewed interest of
students for this field of law after the emergence of international criminal jus-
tice in the 1990s, and the development of the internet, which has made it much
easier than before to share and comment IHL-related information. Neverthe-
less, this success should not make one forget that teaching ihl in academia is
never granted and also faces a certain number of challenges.
5.1 Challenge #1: The Impact of Financial Crises on Academia’s Budgets

The pressure on budgets is probably the most recurring challenge that ihl aca-
demic teaching faces. In recent years, the various financial crises have adverse-
ly affected the budget of States. Austerity policies have emerged as a response
to those crises. In turn, academia’s budgets have decreased, sometimes
Jessup White & Case llp (14,457 likes) Concours Jean Pictet (1,502 members), adh/cudih
Alumni (378 members).
141 Especially on LinkedIN: see: note 140.
142 In 2017, the Review and “How Does Law Protect in War?” accumulated the biggest num-
bers of unique visitors on the icrc’s web site with respectively 136,969 unique visitors for
“How Does Law Protect in War?” (online platform) and 79,869 unique visitors for online
pages of the International Review of the Red Cross (source: GoogleAnalytics). “Inter-
national Humanitarian Law: A Comprehensive Introduction” was downloaded by over
90% of single visitors of its host web page and half of its hard copies were sold after five
months (source: internal icrc statistics).
32 Kuster
dramatically.143 Faced with the pressure imposed on them by their govern-

ment donors, universities have had to implement drastic budget cuts in their
programmes and courses. With regard to law schools, branches such as public
international law have sometimes been amongst the first ones to suffer from
those cuts. In that context, and keeping in mind that, in general, ihl courses
represent a part of the public international law course, it comes as no surprise
that ihl usually does not resist very strongly to budgetary pressure.
There are several possibilities for an ihl lecturer to address this challenge:
first to modify the length, content, and design of his/her course to adapt it to
constraints dictated by financial pressure on academia’s budgets. This can be
done with creativity and persistence, but also with the support of the variety of
tools developed by the icrc, in particular the adaptable teaching outlines pro-
posed in “How Does Law Protect in War?”144 Second, in the experience of this
author, it is possible (although certainly not easy) to resist budget pressure and
even take advantage of it by proactively re-shaping an ihl course and make
it focus on topics of priority interest to government donors. As an example, a
lecturer was teaching ihl in a Central European country. A few years ago, the
government, faced with the Euro crisis, threatened to reduce the budget of the
faculty. As a result, the existence of ihl course was at risk. As the country was
also affected by the so-called refugee crisis, this lecturer managed to maintain
ihl teaching not only by merging it with refugee law, but also by proactively
organizing public conferences and events in which representatives of the gov-
ernment were invited. Thus, ihl teaching was made all the more relevant for
the government, thanks to its merge with a related legal field of priority inter-
est, and its active promotion towards decision-makers faced with the refugee
issue. This example demonstrates how anticipation, flexibility, and proactivity
remain crucial assets for lecturers willing to maintain their ihl courses.
5.2 Challenge #2: ihl, a Very Specific Field Competing against More
Mainstream and Appealing Fields of Law
A second challenge can be found in the competition that ihl faces from other
well-established branches in academic curricula. Indeed, ihl is a very specific
legal field, as it covers exclusively armed conflicts, a very particular situation
which is an exception to the rule of law in most countries and which occurs
only in a minority of countries today. Moreover, fields such as business law or
even human rights are generally far more popular among students. Such legal
fields can be perceived by students as the assurance of finding a good position
143 Jastram, Quintin, supra note 25, at 996–997.

and earning a (good) living after their studies. At first glance, ihl can hardly
suggest that. One should nevertheless be aware that, while the scale of armed
conflicts and violence seems to have steadily decreased over history, also in
terms of deaths,145 the number of small-scale armed conflicts has multiplied
over the recent years,146 making the dissemination of ihl all the more neces-
sary to ensure that its rules are respected. As a result, governments, armed and
police forces, international organizations, ngos, and academic institutions
seem keener today than before to recruit ihl advisers and lecturers combin-
ing legal knowledge and field experience.
Therefore, while possibilities definitely exist to find relevant and interesting
positions after ihl studies, lecturers should also dedicate sufficient time and
efforts to connect their students with ihl professionals, for instance by set-
ting up ihl clinics, sending their students to ihl competitions, co-organizing
conferences and academic events on themes of relevance and interest with
potential recruiters, or inviting ihl professionals in their courses. Similarly,
even if ihl is taught widely in academia today, the icrc as the guardian of ihl
and its Red Cross and Red Crescent partners, continue playing a crucial role in
supporting lecturers to maintain this teaching. Indeed, in the experience of
this author, Red Cross and Red Crescent actors cannot simply help set up ihl
courses in academia and then stop supporting them. They have to maintain
regular contacts with lecturers, universities and education authorities to make
sure that quality and sustainable teaching is guaranteed over time. A combina-
tion of online and on-site interactions seems to be the best way to ensure that
past icrc efforts are not simply lost, if the organization suddenly decides to
withdraw from the context in which it has invested time and resources to in-
troduce ihl in academia.147
5.3 Challenge #3: Teaching ihl in Universities Affected by

Armed Conflict
A third challenge is that of teaching ihl in universities of a country direct-
ly affected by armed conflict. This often means that the mere access to the
145 The Visual History of Decreasing War and Violence, OurWorldinData, e-briefing, available
at: https://ourworldindata.org/slides/war-and-violence/#/title-slide.
146 Trends in Armed Conflicts, 1946–2015, Peace Research Institute Oslo (2016), available at:
https://www.prio.org/utility/DownloadFile.ashx?id=15&type=publicationfile.
147 In 2010 for instance, the icrc closed its delegation in Budapest and drastically decreased
its support to academic programmes in Central and Eastern Europe, as well as the Balkans.
Thereafter, the number of ihl courses and events decreased, reportedly also because of
budget cuts caused by the Euro crisis and even affecting public international law courses
in law faculties.
34 Kuster
university is unsafe, or that infrastructures have been damaged to a point that

makes the pursuit of any course a very difficult, if not impossible, endeavour.
While some lecturers persist in teaching their students even in such dire situ-
ations, armed conflicts mean that courses are interrupted in most cases. There
are nevertheless examples, in which technology has allowed not only teaching
to continue, but also to reach out to students geographically far away from
their universities, and for whom the trip to study would be far too dangerous.
The Syrian virtual university is one of such examples.148
In other situations, while the university remains functional in armed con-
flict and the fighting does not directly disrupt teaching, the polarized situation
makes it more difficult to teach ihl based on contemporary practice and in
an objective way. Lecturers might be faced with strong reactions from their
students, when discussing the protected status of surrendering enemy com-
batants, for instance. Conversely, it might be difficult for lecturers themselves
to keep objective and neutral when teaching ihl in such a situation, especially
if they or their relatives have been adversely affected by the armed conflict.
While it is believed that the pursuit of ihl teaching is especially important in
such situations, it nonetheless presents challenges to which any lecturer might
react in his/her own way. It would be pretentious to offer ready-to-use solu-
tions for such a difficult challenge, but empathetic and respectful listening and
teaching, use of case studies from another context, while addressing similar
issues to those actually faced in the country, and the support from external ihl
professionals may prove useful for lecturers confronted with such scenarios.
5.4 Challenge #4: Addressing the Misconception that “ihl Is

Always Violated”
A fourth challenge can be found in the growing credibility gap that ihl is cur-
rently suffering.149 There has never been so much IHL-related teaching, de-
bating, and researching, while numerous blatant ihl violations are reported
daily in the media. While it represents a general challenge to ihl as a whole,
it is also a specific challenge to any ihl lecturer facing the doubts of his/her
students. But it should not be avoided. As Xavier Philippe puts it, ihl lecturers
should actively engage their students on this issue and demonstrate that ihl
rules are not all constantly violated.150 Many of them are actually respected
and implemented faithfully, but these positive examples do not receive the

149 See supra note 102; see also: Bernard, Nikolova, supra note 133, at 577–78.
150 Philippe, supra note 98, at 599–603.
media coverage they deserve. While it is crucial that students seek information
on current armed conflict through media, they should be guided by their pro-
fessors when doing so. Media do not report impartially about ihl respect and
violations. Selection is made, based on several criteria: commercial competi-
tion for information, which will generate the largest interest, is one of them.
Unfortunately, human nature is less interested in normality – when the law
is respected, which, for ihl, very often translates into a mere absence of facts
(no violation) – than by outrageous crimes. Hence, what sells most in general is
information related to blatant and shocking ihl violations, which in turn pro-
vides large audiences with a feeling that the law is never respected. While one’s
lack of tolerance for ihl violations should rather be taken as an encourage-
ment pushing for increased respect, it is fascinating to observe how promptly
certain scholars, when talking about erosion of respect for ihl, or even erosion
of ihl, seem to throw the baby out with the bathwater. In comparison, when
addressing disrespect of traffic law, which occurs on a very daily basis world-
wide, there is very rarely a consideration that traffic law is eroding following
outraged reactions to violations. Why is that? This question is for researchers
to address. A scholar nonetheless suggested that it could be that, if being in-
appropriately confused with ihrl, ihl could suggest a promise of individual
well-being of such a high standard that it could never been reached, especially
in armed conflicts. Indeed, ihl is not human rights. While it efficiently seeks
to preserve human dignity in war – one of the worst situations humankind can
experience – one should never confuse this basic, but crucial promise of ihl,
with that of human rights. Indeed, the latter promises individual and collec-
tive fulfilment in all domains of life of human beings, a far more developed am-
bition than the former, which rather seeks to preserve the core of individual
and collective rights in armed conflict. Thus, using more instances of respect
for the law in the ihl classroom and beyond is more than a solution provided
to lecturers; it is a necessity to close the “credibility gap” by changing the nar-
rative on ihl.151
5.5 Challenge #5: Supporting ihl Teaching in Universities in an

Appropriate Way Worldwide
Fifth, but not last, an overall challenge, rather internal to the icrc, can be found
in the difficulty to monitor and support, worldwide, regular ihl teaching,
151 J. Garcia Ravel, V. Bernard, Changing the Narrative on International Humanitarian Law,
Humanitarian Law and Policy Blog, 24 November 2017, available at: http://blogs.icrc.org/
law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitarian-law/.
36 Kuster
quantitatively as well as qualitatively. While icrc activities in the field of dis-

semination of ihl were mainly addressed to intellectual elites and academic
circles in 1863 and continued to be so for some 40 years until World War i,152
the organization is today much better known for its humanitarian work in
the theatre of armed conflicts. This has made it shift its focus from long to
short term. Indeed, humanitarian operations require, beyond a certain level
of planning, a capacity to react rapidly to human suffering. As a result, lim-
ited resources have been allocated to prevention activities, whose effects can
be monitored and seen mostly over mid- to long-term. Hence, monitoring the
progress of the icrc’s prevention activities is made more difficult by the dis-
crepancy between the means that would be needed to do so properly over
several decades and the actual resources that are allocated to that purpose.
In addition, provided that the icrc had the resources to monitor the number
of ihl courses conducted in academia worldwide on a regular basis, it would
still prove difficult, if not impossible, to monitor their quality. To this end, one
should foresee appropriate human resources to attend at least a few courses,
and monitor exam questions and answers, which seems highly unrealistic in
view of the serious and massive humanitarian challenges the icrc is currently
facing. The aforementioned estimates, provided through field reports, social
media, and online statistics, can certainly help assessing the status of ihl
teaching in academia today. Such estimates can also help planning and adapt-
ing the icrc’s support to such teaching. While the current, though imperfect,
monitoring of academic programmes should be maintained and developed,
the icrc will be unable to confirm and use data on ihl teaching profession-
ally, until it allocates appropriate resources to properly monitor, assess, and
analyse both the quantitative and qualitative progress of its prevention pro-
grammes. Besides proper monitoring of ihl teaching, other challenges for the
icrc’s support to ihl teaching can be found, for instance, in the difficulty to
recruit staff not only versed in ihl, but also familiar with interactive teaching
in academia, digital communication and promotion, and committed to sup-
port such a file on the (very) long run; translating ihl teaching tools in various
languages also demand considerable efforts that cannot be underestimated;
and the lack of access to the internet in a certain number of countries makes it
necessary to find tailor-made solutions to promote ever-increasing digital ihl
tools to support up-to-date teaching in academia.
152 See: History of the icrc, Article (2016), available at: https://www.icrc.org/en/document/
history-icrc.
6 Conclusion
Teaching ihl in academia remains today a key manner for States to fulfil their
obligation to disseminate ihl through programmes of civil instruction. The
three past decades have seen steady progress in that regard: in the estimates
of the icrc, among the 900 universities it interacts with on a regular basis,
probably 600 have integrated ihl in their teaching programmes in one way or
the other. This can be considered an overall success, for which due credit must
be attributed to committed lecturers, universities, and education authorities.
The role of the icrc and its Red Cross and Red Crescent partners, which often
trigger and maintain appetite for ihl teaching in the academic community,
should also be highlighted in that regard: since the 1980s, they have engaged
education authorities and academia on a regular basis to include ihl in their
teaching curricula; they have trained scores of students and then lecturers to
help them develop their knowledge and teaching; they have developed and
promoted numerous pedagogic tools – general and thematic, on paper and
then online – to support lecturers in their efforts.
Credit for the success of ihl teaching in universities should also be given to
the remarkable work of the Ad Hoc tribunals, the icc, and all mixed, special,
and national tribunals and jurisdictions that have brought ihl back into light
through their remarkable work to prosecute its violations, interpret, and clarify
this body of law as of the 1990s. Similarly, the digital revolution that took place
with the emergence of the internet, allowing mass audiences to access, discuss,
and study IHL-related information should be duly taken into account when
analysing the progress that ihl teaching in universities has known since the
2000s.
However, when talking about the progress made by ihl teaching in aca-
demia worldwide, one should always keep in mind that the integration of ihl
remains uneven from one country to the other. Similarly, while one can prob-
ably assume that ihl was not much taught in academia before the 1980s, there
is no real benchmark to compare the past situation with that of today. More-
over, assuming the teaching of ihl in academia is indeed a success story, what
remains to be done? In view of above-mentioned challenges, support to ihl
teaching should certainly not stop there. Should future efforts focus on making
courses compulsory? Improving their length? Ensuring their quality? Bringing
ihl teaching to focus more on humanitarian problems in each country? Those
questions should definitely help frame future efforts of lecturers, the icrc, its
Red Cross and Red Crescent partners, as well as any other actor involved in
such a field.
38 Kuster
Beyond those questions, ihl teaching in academia still faces a certain num-
ber of challenges: the pressure on academia’s budget making them drop ihl
courses; the armed conflicts themselves, when they disrupt or polarize the
teaching environment; the fierce competition ihl, as a very specific field, can
be confronted with, especially when compared to more popular and promising
fields, such as business law or human rights; the credibility gap affecting ihl
in general and its teaching in particular; the difficulty for the icrc to monitor
ihl teaching in academia and support it in an appropriate way worldwide.
Answers to those challenges exist: adapting ihl teaching to available means
and promoting it creatively to government donors to resist budget reductions;
exploring distance/online learning and emphasizing empathetic listening and
teaching to maintain courses even when armed conflicts erupt; providing stu-
dents with opportunities to connect to ihl professionals through dedicated
events or their work in law clinics; duly addressing students’ doubts on the
relevance of ihl and using instances of respect for the law to teach it; dedicat-
ing creativity, persistence, and appropriate means to monitor and support the
teaching of ihl in academia as a contribution to prevent human suffering.
Universities play a key role in the dissemination of ihl to ensure its faithful
implementation. They are encouraged, along with their lecturers, to play this
role to its fullest extent: integrating ihl can be done in multiple ways, from
two hours of compulsory teaching for undergraduates, up to a full Master de-
gree for postgraduates. Whatever formula is chosen, lecturers are encouraged
to focus their teaching on contemporary practice, discussing armed conflicts
their students hear about, and duly addressing their questions and claims in
the classroom. Experience has shown that case studies and discussions drive
knowledge. Interaction, innovation, diversity in teaching tools and media,
instances of respect for the law, multi-disciplinary teaching, and connection
with the professional world should form the d.n.a. of any ihl course. Indeed,
teaching ihl is a difficult commitment for both lecturers and students, who
will have to address dilemmas and issues without single answers. In the expe-
rience of this author, it is nonetheless a worthwhile and crucial one to better
understand our society and human nature. Ultimately, it can also help prevent
humankind from repeating its worst mistakes, learning from them to build a
more empathetic and peaceful world.
Comparing Experiences: Engaging States and
Non-State Armed Groups on International
Humanitarian Law
Andrew Carswell and Jonathan Somer*
Abstract
The genesis of this contribution was a conversation between the authors when they
were working respectively as point persons for training State armed forces with the
icrc (Andrew) and non-State armed forces with Geneva Call (Jonathan).1 When dis-
cussing the barriers to ihl compliance buy-in by each type of armed actor, Andrew
mentioned that his audience regularly points the finger at non-State armed groups
(nsags) as the principal perpetrators of ihl violations – to which Jonathan replied
that his audience points the finger in precisely the opposite direction. With that rev-
elation, a seed was planted to pursue the conversation. The opportunity to do so was
presented when University of Toronto’s Munk School of Global Affairs and the Cana-
dian Red Cross hosted a 2017 ihl conference entitled Order in Chaos: the Evolution of
Law Governing Armed Conflict. The discussion, upon which this contribution is based,
was moderated by Carmen Cheung, Professor of Global Practice at the Munk School.2
1 What are the Main Differences between Engaging States on the

One Hand and nsags on the Other Hand?
1.1 States – Andrew Carswell

Engaging States on the laws of armed conflict is normally a straightforward
task, although materially improving their international law compliance is
* Andrew Carswell has worked as an ICRC Armed Forces Delegate in the Middle East, United
States, Asia, and Africa; he is a former Canadian Forces legal officer and criminal prosecutor.
Jonathan Somer is the Founder of Persona Grata Consulting, former Legal Adviser at Geneva
Call, and Interim Senior Legal Adviser at the Canadian Red Cross in 2017/18. The views ex-
pressed are those of the authors alone and do not necessarily reflect the views of any institu-
tion the authors are or have been affiliated with.
1 In accordance with its Geneva Conventions based mandate, the icrc engages with all par-
ties to armed conflict including State armed forces and non-State armed groups regarding
their ihl obligations.
2 The authors would like to thank Samit D’Cunha, Regional ihl Coordinator at the Canadian
Red Cross, for his very helpful insights and revisions. The authors are responsible for the text.

40 CARSWELL AND SOMER
more complex. Since the Peace of Westphalia, States have claimed sovereignty
over their territory, domestic affairs and foreign policy, to the exclusion of ex-
ternal interference. They are the primary negotiators and authors of treaties,
and they subscribe to them for reasons of sovereign self-interest. They also
claim a monopoly over the use of force, which certainly includes criminalizing
the activities of non-State entities that threaten peace and security, and deny-
ing them any sort of special legal status.
The relative advantage of working with States is that they have without ex-
ception decided that it is in their national interest to become parties to the
1949 GCs.3 They benefit from a constitutional structure that gives ihl much of
its substance and around which treaties are primarily designed. The legislative
branch of government has the capacity to convert treaties into national stat-
utes, giving their provisions teeth through the repressive mechanisms of crimi-
nal law. Inter-ministerial ihl committees examine the consequences of the
law for the executive branch of government, including ministries of defence,
foreign affairs, and health. Most importantly, the military chain of command
is founded upon lawful orders backed by the constitutional authority of the
State, and violations are policed and prosecuted in independent courts.
Beyond the law, State armed forces define themselves relative to discipline.
It is rarely difficult to persuade them that violations of the basic tenets of ihl
amount to consequential breaches of discipline; and where a violation does
take place, the hallmark of a professional force is its ability to react quickly,
fairly, and decisively through discipline and justice. Non-State armed groups
simply do not have the legal underpinnings, resources and infrastructure to
institutionalize ihl to a similar degree.
One important virtue of that constitutional foundation is civil society’s
access to the State apparatus. States have ministries of defence and foreign
affairs, embassies, even uniformed civil-military coordinators: it is not hard to
track them down. The challenge for civil society is understanding how armed
forces function (e.g. in a large military the main node for ihl compliance is
its joint operations command). In contrast, armed groups normally operate in
obscurity, and on territory beyond the government’s control. Merely interact-
ing with them may represent a violation of the domestic law of the State on
which they are operating.
Experiences in Engaging States and Non-State Armed Groups 41
1.2 Non-State Armed Groups – Jonathan Somer

Andrew has succinctly laid out many of the systemic factors that allow for
State compliance. The problem is that most of these do not exist for nsags.4
I will start with the legal underpinnings. 100% of States are party to the GCs,
while virtually 100% of nsags are not. They do not have the legal capacity to
become party to international treaties. That is the function of the Westphalian
structures noted by Andrew, meaning we have a different starting point when
working with nsags. States have already committed at the political level to
comply with ihl and we have an international system that, although weak on
enforcement, provides a transparent framework for signalling these commit-
ments, i.e., we know which States are parties to which treaties. With nsags,
we have to generally pull the conversation back to first principles. Do they
know about ihl? What do they think about it? If they show an interest, we
can have a dialogue on the content of the law, and then enter into a conversa-
tion as to their willingness to comply. Although organisations such as Geneva
Call provide mechanisms for nsags to signal their compliance with interna-
tional norms such as the anti-personnel landmine ban and the protection of
children, there is no global IHL mechanism where nsags can sign up.5 So the
first benchmark is to get an understanding from political leadership as to their
willingness to commit to international legal standards.
But even if nsags accept their legal obligations, they do not have a seat at
the law-making table. This domain is reserved for States. Most of us know from
our own life experience what it feels like to be excluded from the playground.
It creates animosity and plays into the victim mentality that many nsags per-
ceive already. They feel that the system is rigged against them. So establish-
ment of trust and developing a spirit of inclusion is a bigger challenge and of
greater necessity than when engaging States.
Accountability is another difference that is partly a result of the internation-
al legal framework, particularly the ability to prosecute own forces’ violations
4 Even the nomenclature is problematic. One should essentially distinguish between non-
State parties to conflict (the political entity with international obligations), and “armed
groups” (the military wing of a non-State party to conflict). However, for the sake of con-
sistency, common practice, and ease of understanding, I will continue to use nsag to cover
both the political and military components of non-State parties to conflict, except in cases
where I specifically refer to the distinction.
5 Article 96(3) api allows the authority representing a people exercising its right to self-
determination engaged in an armed conflict against a State to make a declaration of its will-
ingness to comply with ihl. However, these criteria are almost impossible to meet. There
is only one such declaration (Polisario Front) that has been accepted by Switzerland, the
depository of the Geneva Conventions and Protocols.
of ihl. Andrew pointed out above that the hallmark of a professional military
force capable of complying with ihl is the ability to react through a justice
system. The problem for nsags is that from an international law standpoint,
uncertainty remains about their legal capacity to hold trials,6 and from a prac-
tical standpoint, even if such capacity exists, few nsags will have the technical
capacity to live up to fair trial standards, a requirement of ihl.
Andrew also noted the lack of infrastructure and resources. These are chal-
lenges to be sure, but they are more practical than systemic. And while nsags
do not have embassies, they increasingly have websites. In fact, it could be
said that the most advanced nsags have more governance capacity than some
States. But generally the lack of institutionalized political and military gover-
nance makes compliance a greater challenge through the whole process of ihl
integration and operational practice referred to below.
2 What Obligations Exist to Train Armed Forces on ihl and

Disseminate it among the Population? Are These Obligations
the Same for State and Non-State Forces?

The GCs require governments to “disseminate” the treaty text “as widely as
possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction”.7
Similarly, customary ihl provides that “States and parties to the conflict must
provide instruction in international humanitarian law to their armed forces”.8
These requirements appear to rely on the presumption that military instruc-
tion is tantamount to changing behaviour. In contrast, Article 86 api9 obliges
armed forces to “prevent” breaches of the Conventions and Protocols, with-
out defining that term. api contains the more versatile provision, since it is
an obligation of result rather than means. As will be discussed below, mere
6 J. Somer, ‘Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal
Capacity of Armed Groups to Establish Courts’, ejil Talk, 17 March 2017, available at: https://
www.ejiltalk.org/opening-the-floodgates-controlling-the-flow-swedish-court-rules-on-the
-legal-capacity-of-armed-groups-to-establish-courts/.
7 Article 47 gci.
8 Rule 142 icrc Customary ihl Study.
9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of International Armed Conflicts (1977) 1125 unts 3 (entered into force 8 June
1977).
instruction of ihl has more limited effect on military behaviour than was
previously understood to be the case. However, the term “disseminate”, also
used in the context of non-international armed conflict,10 may be read more
broadly than mere instruction. api also requires States to ensure that legal ad-
visors are available to advise commanders both on the application of the law
and its instruction to their subordinates.11

ihl obligations on nsags in this regard are weaker than for States. At the trea-
ty level, the only relevant obligation comes from apii mandating that the Pro-
tocol “shall be disseminated as widely as possible”,12 a more ambiguous provi-
sion than Andrew outlined above for international armed conflicts. The icrc
Study on Customary ihl recognises a difference in obligations between States
and nsags when it comes to ihl dissemination, noting that this is one of only
a handful of areas in which the icrc’s 161 customary ihl rules make a distinc-
tion between State and nsag obligations. The icrc determined, however, that
no practice exists requiring nsags to have legal advisors available for military
commanders, and therefore Rule 141 (see above) only refers to “States”. More
surprising is that the icrc found that only States must encourage the teaching
of ihl to the civilian population (Rule 143), while both States and parties to
conflict must provide instruction to armed forces (Rule 142). Dissemination to
civilian populations by nsags is of particular importance due to their inability
to become party to international treaties such as the GCs as per above. There-
fore dissemination not only informs the population affected by their actions
of the rules of ihl, but points to an nsag’s acceptance of ihl. Those engaging
nsags on ihl compliance encourage a public commitment to ihl as it dem-
onstrates the taking of ownership, noting that the relationship between nsags
and their constituencies is an important one. In fact sometimes constituen-
cies pressure nsags towards non-compliance, e.g. accepting their children as
fighters in order to enact revenge or encourage discipline in youth. It therefore
may be incumbent on nsags intent on complying with ihl to be able to con-
vince civilians that respecting ihl is central to the community’s aspirations.
10 Article 19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts (1977), 1125 UNTS 609
(entered into force on 7 December 1978).
11 Article 82 api.
12 Article 19 APII.
3 How to Persuade Parties of the Importance of ihl, and

of the Necessity for Compliance? What are the Nuts
and Bolts of Engagement?

This is an existential question for civil society organizations that seek to in-
duce ihl compliance. It is easy for us to stand at the podium and speak of
the virtues of the law to all who will listen. However, does this change the way
armed forces actually behave?
It is important to note from the outset that ihl is not the only relevant body
of law governing military operations. The main substance of ihl only applies
during armed conflict, whether international or non-international. We look to
another body, ihrl, to determine what level of force a military may employ
in situations of violence that do not amount to the conduct of hostilities in
armed conflict. ihrl applies concurrently with ihl during armed conflict, and
the two interact in accordance with the doctrine of lex specialis (e.g. the inter-
national law regulating a soldier’s use of force against a civilian protester, even
on the territory of an armed conflict, remains ihrl). Deployed armed forces
are also subject to the domestic law of their home country, and of the host
country.13 The challenge, then, is assimilating those different and sometimes
competing frameworks into the comportment of armed forces.
The commonly-held notion that soldiers will abide by international law
simply by virtue of their awareness of it is a fallacy. Merely broadcasting the
text of the GCs amongst soldiers will have little effect on their compliance
absent other factors compelling them to do so. This was one of the central find-
ings of the icrc’s 2004 Roots of Behaviour in War, a psychological study that
examined the drivers of ihl compliance.14 It found that soldiers’ autonomy of
decision-making dissipates vertically through the chain of command (they act
in accordance with orders); and horizontally through the group dynamics of a
fighting unit.
Accordingly, a successful civil society organization teaching ihl may,
through its outreach, positively change the attitude of a soldier about ihl –
it may even induce a genuine willingness to comply – but it will have little
effect on actual behaviour. A change in comportment will only result from
13 Subject to a status of forces agreement that confers judicial jurisdiction to the home State,
as is often the case.
14 icrc, The Roots of Behaviour in War: Understanding and Preventing ihl Violations, avail-
able at: https://www.icrc.org/en/publication/0853-roots-behaviour-war-understanding-
and-preventing-ihl-violations. See also the 2018 update of that study, The Roots of Re-
straint in War, available at https://www.icrc.org/en/publication/roots-restraint-war.
successfully modifying the orders that soldiers receive to reflect the applicable
law. This means mapping the path of military orders, which may be traced back
to strategic-level defence policy, doctrine as reflected in classroom education
and field training, and the most proximate instruments guiding soldiers’ be-
haviour: the military decision-making process including the operations order
and its appended rules of engagement.15 It also means providing forces with
legally-compliant equipment. Soldiers do not even need to be aware of the law
to comply with it: a tactical indirect-fire manual that accurately reflects the
treaty obligations of distinction, proportionality, and precautions in attack will
certainly be more effective than reproducing the underlying treaty rules verba-
tim. Operationally relevant ihl and ihrl need to be integrated accurately and
thoroughly through these drivers of military behaviour. Equally important to
such prophylactic measures is ensuring that when violations do occur, they are
addressed through disciplinary or judicial sanctions that reflect international
legal standards.
All of this is hard work that demands both the capacity and top-down com-
mitment of armed forces to ihl compliance, as well as continuous attention
to detail. If State armed forces lack either capacity or commitment, systemati-
cally changing their behaviour is a non-starter. Then what? In important cases
(e.g. where armed forces are at war), we may look to means of inducing com-
mitment. That discussion takes place at the strategic and political levels, and
involves persuading authorities that it is in their sovereign interests to abide
by the commitments they undertook, albeit in more peaceful times, to adhere
to. Reciprocity cannot be invoked as an excuse for violating the central tenets
of ihl, but it is nevertheless a strong motivating factor for compliance: how
would you like your soldiers to be treated upon capture, even by a nsag? Dip-
lomatic interventions are also fundamental to emphasizing that political and
economic isolation is an undesirable prospect. The most difficult cases are
those where a government has decided that it is no longer in its best interest to
abide by the law – indeed the rule of law has broken down. In those rare cases,
the armed forces themselves may play an important role in countering the nar-
rative of the executive with an appeal to ihl as a central pillar of discipline,
in the absence of which they cannot claim to be professional. Furthermore,
the international community then has an obligation to step in and employ all
feasible and lawful measures to rectify the situation. This is where the craft of
diplomacy is so vital, but so is military-to-military capacity building by allied
States.
15 icrc, Decision-Making Process in Military Combat Operations, available at: https://www

.icrc.org/en/publication/4120-decision-making-process-military-combat-operations.

When I was in university I had a summer job where I worked in a program with
at-risk youth towards providing life and job skills. I learned it really did not
matter how you intervene if the timing is not right. But at some point, at least
for some of the youth, the timing was right and you could make a difference
if you were present and engaged. If nobody is engaging in humanitarian dia-
logue with nsags, then nobody is there when that time comes. And generally
that time does come at some point in a conflict lifecycle. So there is a value in
building up a relationship of trust even if it is not bringing immediate results.
While we cannot discount humanitarian motivation, particularly for nsags
engaged in conflict with abusive regimes, compliance will be a function of the
extent to which it is in a party’s interest to comply. At the root of this equation
is legitimacy. Generally nsags have two constituencies that they are trying to
satisfy. One is the international community while the other is their home com-
munity. One way to motivate nsags is to encourage ownership. As mentioned,
nsags do not have the legal capacity to become party to international treaties.
Geneva Call has come up with an alternative model by creating deeds of com-
mitments that nsags can publicly commit to. These deeds of commitment are
treaty-like instruments, and although they are not legally binding, they accom-
plish an important policy goal: the idea behind them is to create a community
of nsags which take ownership of their obligations to comply with ihl. They
agree not just to uphold the standards, but also to issue orders to military and
political organs, to disseminate the commitments, to establish internal audit-
ing, to agree to external monitoring, and to take remedial action when viola-
tions occur.16 Additionally, Geneva Call has established periodic meetings of
signatories in which signatories and other interested nsags address challenges
of implementation and share good practice, much in the same way that States
parties to international treaties such as the Anti-Personnel Mine Ban Conven-
tion (apmbc) do as set forth in those treaties. Critics of this approach voice
concern that it grants legitimacy to nsags. This approach may indeed grant
some legitimacy to nsags, but as legitimacy is what nsags are often seeking,
the question is to what degree should humanity suffer so that legitimacy re-
mains within the exclusive domain of States? Yet genuine concerns persist,
such as the risk that ihl ownership becomes the trojan horse by which nsags
lay claim to authority.
16 See for example: Articles 8, 9 of the Deed of Commitment under Geneva Call for the Pro-
tection of Children from the Effects of Armed Conflict, available at: https://genevacall.org/
wp-content/uploads/dlm_uploads/2013/12/DoC-Protecting-children-in-armed-conflict
.pdf.
Of course an ownership methodology will not work with all nsags, as not
all will seek legitimacy by satisfying domestic and international constituen-
cies. Some will try to dominate domestic constituencies while eschewing in-
ternational norms. As we have seen lately, some nsags may be demonstrative
regarding their rejection of ihl through the posting or sharing of videos of be-
headings on social media and other shocking behaviour clearly in violation of
ihl. But just as we do not judge all States based on the behaviour of the worst
violators, so too we should not prejudice our judgment of all nsags based on
the actions of a few.
nsags often signal a curiosity towards learning about ihl. They increasingly
understand the “hearts and minds” value of ihl compliance, and the need to
have a capacity to engage in dialogue on ihl. One photo that stands out for me
presents the contents of the backpack of a rebel fighter. Besides communica-
tion tools, a gun, a religious text, and a book on leadership skills, the backpack
contains a hard copy of a rebuttal from the nsag refuting UN accusations of
violations. This suggests that some nsags recognize the need to become flu-
ent in ihl in order to not cede the hearts and minds ground. In fact a term that
has come into fashion is lawfare, described as the “use of law as a weapon of
war”.17 The term is often used in a pejorative manner, as if only weaker parties to
conflict – often nsags and not powerful States – use the law to degrade the en-
emy. Putting such hometown bias aside, there is clearly a humanitarian interest
in arming nsags with the law. When nsags use ihl either to justify their own
actions or put the spotlight on enemy behaviour, they invite that level of scru-
tiny on themselves. The moral high ground thus exacts a price. Unfortunately
that price is greatly devalued when, as often happens, the discourse degener-
ates into rhetorical mudslinging with no real commitment to putting one’s
money where one’s mouth is. At the end of the day, if ihl is to become an excuse
for justifying whatever action State and nsags alike want to take, it has lost its
value as a protective force. Yet civil society can play a role in taking advantage of
nsags’ newfound capacity in ihl to engage them and hold them accountable.
There are some anecdotal indications to show that nsags may react to in-
ternational scrutiny. When the unsc initiated the Monitoring and Reporting
Mechanism (mrm) on children and armed conflict,18 nsags started to pay at-
tention. One nsag leader reported to me that upon hearing through bbc radio
about the ban on child soldiers and the mrm, they realised it was something
they need to take seriously. They convened their leadership to consider how
17 C.J. Dunlap Jr., ‘Lawfare: A Decisive Element of 21st Century Conflicts?’ 54 Joint Forces
Quarterly (2009).
18 For information on the mrm, see: www.mrmtools.org.
both the world as well as their domestic constituencies would see them. Ulti-
mately, they decided to adopt the ban in their own doctrine.
At the nuts and bolts level, engagement then resembles the icrc integra-
tion cycle described above by Andrew, but here we must deal with limited
capacities and resources. Expectations should be scaled down and tailored to
the particular nsag. And while I agree with Andrew that ihrl is also relevant,
the application to nsags is too complex to deal with here.
4 What are the Major Challenges in Engaging with States and

nsags Respectively?

For States, one of the major challenges of engagement is legal interpretation,
which of course precedes the integration of the law into the operational prac-
tice of militaries. A lawyer from a humanitarian organization and a lawyer
from the armed forces have very different clients. The former’s client seeks to
minimize ihl violations based on its observation of the protection and assis-
tance needs of the civilian population. The latter’s client is an operational mili-
tary commander, who must account for harm to the civilian population, but
whose first objective is to make a military gain at the strategic, operational, or
tactical level. It is not, therefore, surprising that the humanitarian lawyer will
tend towards an expansive notion of civilian protection, whereas the military
lawyer will tend towards giving his client the maximum possible legal latitude
(“left and right arc of fire”) within which he or she may lawfully exercise com-
mand discretion.
This dynamic was never more evident than in the debates surrounding the
icrc’s 2009 publication of its Interpretative Guidance on the Notion Direct
Participation in Hostilities.19 At stake was the extent of discretion for com-
manders to decide who may be considered a member of a nsag for the pur-
pose of lethal targeting; and the point at which civilians lose their default
protection from direct attack – truly matters of life and death. Prior to icrc’s
guidance, the law was unclear and there was no authoritative statement on the
issue, which effectively meant that military commanders could decide who
was a “bad guy” based on relatively loose factors. Not surprisingly, the push-
back from military legal experts was strong, but as the dust has settled over
19 icrc, Interpretive Guidance on the Notion of Direct Participation in Hostilities (2009),

available at: https://www.icrc.org/en/publication/0990-interpretive-guidance-notion-
direct-participation-hostilities-under-international.
the years many armed forces have adopted central elements of the guidance
as part of their doctrine, although often reserving some room of manoeuvre.
The key point is that the object and purpose of ihl must be preserved. We
see armed forces increasingly claiming zero tolerance of civilian casualties as
a matter of policy (i.e. beyond ihl requirements). However, in ihl, civilians
are defined negatively as persons not forming part of the fighting forces, so
a widening of the concept of membership in fighting forces and a loosening
of the concept of direct participation in hostilities equates to narrowing the
definition of protected civilian, with negative consequences for ihl’s intended
beneficiaries.
A related challenge is reconciling the language of ihl and ihrl with the
language of military operations. Civil society ihl experts speak purely in terms
of treaties and customary law, whereas armed forces have a completely sepa-
rate vocabulary based in operations orders, rules of engagement, and standard
operating procedures, to name a few. The two sides are bound to talk past
each other unless they first acknowledge their different objectives, and then
make an attempt to reconcile their vocabulary. What, for example, does “self-
defence” mean in the parlance of rules of engagement?
Another major challenge is reconciling the language of international law
with the politically-expedient language of counter-terrorism. Particularly since
9/11, non-State parties to armed conflicts have been labelled as terrorist organi-
zations, meaning that mere membership is a criminal offence, let alone point-
ing a weapon at government forces. This might seem intuitive at first glance,
but the consequence is that acts of war by armed groups recognized as lawful
under ihl are criminalized. What then is the incentive for them to abide by
ihl, knowing that lawful acts of war will result in a life sentence or worse? The
term terrorist is completely unhelpful as a means of categorizing individuals
under ihl. Indeed, ihl already prohibits acts aimed at terrorizing the civilian
population. The material question is whether they have rights and obligations
under the law, and indeed whether they may be lethally targeted by an oppos-
ing party in the first resort. Labelling IHL-compliant fighters as terrorists has
the toxic effect of disincentivizing lawful behaviour.

The most obvious challenge in engaging with armed groups is the lack of com-
batant status in non-international armed conflict. States did not agree to ex-
tend immunity to non-international armed conflict as they did not want to
provide it for what they see as criminals who may be trying to upend the State
itself. This goes to the very heart of State monopoly on the use of force. There-
fore, while a combatant in an international armed conflict will be immune
from prosecution for directly participating in hostilities, fighters in non-

international armed conflicts may be prosecuted simply for doing so. A major
incentive to comply has therefore been removed.20
A fundamental challenge is the lack of a consistent structure. For modern
States, we know that for the most part there is a civilian government which
has statutory control over armed forces. There will be a ministry of defence to
which armed forces will be accountable. Essentially, there is a clear delinea-
tion between the State and its armed forces. There are indeed nsags who have
structures similar to States, although less complex. They may be organized
into distinct political and military entities, with constitutional separation of
powers.21 Others are much more fluid with political and military roles inter-
changed. As such, engagement actors must do their homework to understand
how each nsag is organized, how decisions are made, and how those decisions
are enforced through the chain of command.
A current challenge is the proliferation of nsags in a given conflict set-
ting. In traditional non-international armed conflicts, one or two nsags were
involved in armed conflicts with the State. We seem to be at a point in time
where many of these conflicts are winding down, for example in Colombia
(farc and eln), Philippines (milf), and Myanmar,22 while many more recent
conflicts, such as Syria and Libya, involve hundreds of armed groups fighting
the State. That leads to the question of whether there may be differences in
the group cohesion behaviour of State and non-State fighters as per Andrew’s
earlier discussion on the icrc Roots of Behavior in War study. Particularly in
situations such as Libya and Syria, the cohesion incentive may not be so strong
as individual fighters may shop their services around and be more like jour-
neyman athletes that go where the best offers lie without allegiance to any
particular group. In this case, individual survival/profiteering may be a greater
incentive than belonging as the motivations would be different.
Another significant challenge is the bias with which nsags perceive they
are treated by virtue of their non-State status. We have already mentioned
above that nsags cannot become party to the relevant treaties. One thing that
20 Nevertheless Article 6(5) apii states that: “[a]t the end of hostilities, the authorities in
power shall endeavour to grant the broadest possible amnesty to persons who have par-
ticipated in the armed conflict, or those deprived of their liberty for reasons related to the
armed conflict […]”.
21 See for instance: The 12 Points of the ndf Program, where it is stated that: “the New Peo-
ple’s Army is under the absolute leadership of the Communist Party of the Philippines”,
available at: https://www.ndfp.org/about/the-twelve-points-of-the-ndf-program/.
22 While there have been several ethnic armed opposition groups in in Myanmar/Burma, it
is generally one or two from each particular ethnic group in conflict with the State.
has resonated well with nsags is to be able to contribute to discourse on the

relevance of ihl. As mentioned earlier, even though nsags are primary stake-
holders when it comes to ihl compliance, they are not invited to the table
when it comes to discussing compliance issues or developing the law. But re-
cently there has been a trend towards consulting nsags on issues of humani-
tarian concern.23 So when we are able to talk to them and let them know that
we can relay their concerns to “Geneva” (i.e. the international community),
they respond positively. They engage with the law and share their views on
its relevance for a range of issues, including, inter alia, detention and direct
participation in hostilities. For example, nsags have discussed the difficulty of
affording recognized places of detention as they fear this will prompt enemy
attacks. They have also discussed the difficulty of dealing with enemy collabo-
rators whose actions fall short of direct participation in hostilities, as they do
not have the practical (and possibly legal) capacity to arrest and prosecute.
Such discussions do not provide excuses for violating the law but are necessary
in order to properly integrate compliance. nsags are also often critical of ihl
rules that they consider to tilt the military necessity/humanity balance too far
in the direction of military necessity. For example, they are often critical of
the proportionality rule’s allowance for all but excessive civilian damage, and
of the use of explosive weapons in populated areas in all but the most urgent
cases of self-defence.
There is also the challenge of access. Sometimes security situations make
access impossible, and sometimes opposing States will not permit engagement
and actors access to areas where nsags operate. And beyond what Andrew has
mentioned regarding terrorist-labelling, there are counter-terror provisions
which in some cases prohibit the process of engaging nsags on ihl compli-
ance. Some States have outright bans on contact with nsags whom they list
as terrorist organizations. While the US Supreme Court case Holder v. hlp
received a lot of attention for potentially considering ihl engagement as
23 See for example: Geneva Call, In their Words: Six Armed Non-State actors Share their
policies and Practice with regard to Protecting Civilians from Explosive Weapons, Novem-
ber 2017, available at: https://genevacall.org/wp-content/uploads/dlm_uploads/2017/12/
Explosive-Weapons.pdf; Geneva Call, In their Words: Perspectives of Armed Non-State
Actors on the Protection of Children from the Effects of Armed Conflict, 2010, available at:
https://www.genevacall.org/wp-content/uploads/dlm_uploads/2014/01/2010_GC_CANSA
_InTheirWords; icrc, Safeguarding the Provision of Healthcare: Operational Practices
and relevant International Humanitarian Law concerning Armed Groups, 23 June 2015,
available at: https://www.icrc.org/en/publication/4243-safeguarding-provision-health
-care-operational-practices-and-relevant-international.
material support for terrorism – a felony in the United States24 – other juris-
dictions in fact also have provisions that are equally restrictive. For example,
the UK prohibits anyone from being present in a place where terrorist training
takes place, and deems this act a strict liability offence (i.e. an offense not re-
quiring an intent to further a terrorist act). This would make the home turf of
nsags off limits to engagement actors who are under UK jurisdiction.25
So, all in all, the numerous pitfalls surrounding humanitarian engagement
of nsags may give one cold feet. However the consequences of leaving nsags
out in the cold are even less palatable.
5 How Do You Effectively Monitor State and Non-State Compliance?

The problem is that on the territory of an armed conflict, the very government
structures designed to contain unlawful behaviour may begin to crumble.
Nevertheless, humanitarian organizations such as icrc and the UN that con-
tinue to operate on the ground are able to collect allegations of misconduct
and bring them to the attention of the relevant parties. The icrc in particular
issues a “rappel du droit” to each party reminding them of their ihl obligations
and, as the hostilities continue, it engages confidentially and bilaterally with
the respective parties regarding credible allegations of ihl violations brought
forward by the civilian population or observed during detention visits. It calls
upon the party in question to investigate and modify its behaviour accordingly,
and in this sense acts as an early warning system. However, ihl is primarily
self-policing, and although international criminal tribunals including the icc
may gain jurisdiction over war crimes, they tend to examine violations long
after the fact.
Despite the unequivocal obligation to respect ihl, the law contemplates
that violations by individual soldiers may take place. It requires that such vio-
lations do not go unpunished by the armed forces to which the soldier belongs.
In the event that key government structures falter as a consequence of
armed conflict, the international community may turn to the network of com-
pliance created by Article 1 common to the four GCs, which requires States to
both “respect and ensure respect” of ihl. The external ensure respect obliga-
tion has been interpreted to mean that States must do everything feasible to
24 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

25 UK Terrorism Act 2006, Section 8.
assist their allies in complying. It is helpful to remember that for virtually every
party to the armed conflicts in the Middle East today, there is a State providing
it with some combination of essential financial, military, and tactical support.
If every one of those States were to make it a fundamental term of the contract
of support that they comply with ihl, this could collectively transform the
war’s effect on the population and restore a semblance of the rule of law.

I was once at a major ihl conference where one expert took the stage and said
in less direct words that nsags are the bad guys and should be treated as such,
followed by another expert who said that actually States are not always such
good apples. Neither presented any evidence to support his claim. Recent stud-
ies in the social sciences, however, have tried to fill this evidence gap.26
We cannot expect 100% compliance from parties to armed conflict, but we
can expect them to take their compliance with ihl seriously. It is easy for an
nsag, or a State for that matter, to refute any allegations of violations. This in
fact is what often happens. But what is particularly impressive is when nsag
leadership admit that they face compliance issues. This is the first step to-
wards an honest discussion. For example, they may have issued orders to not
recruit persons under 18 years of age into their ranks or use them in hostilities.
I have heard many excuses when confronting commanders with allegations
about non-compliance with such orders. For example, “his brother is part of
our forces and he likes to wear the uniform when he comes to visit”. But what
is impressive is when a commander admits that command and control in a
particular unit is weak and, therefore, the orders are not being properly imple-
mented. It is then that we know that our engagement is being taken seriously,
and the discussion can move to preventative and remedial action. But we must
be careful to grant the space to improve compliance rather than denounce at
every chance. We certainly should not demand more of nsags than we do of
States.
From a practical standpoint, it is often difficult to monitor parties to con-
flict due to the security situation and restrictions on movement imposed by
authorities. Beyond the structures noted by Andrew, there have been various
initiatives for monitoring of compliance by local actors. While this may be
more palatable to nsags than to be monitored by international actors, it may
also create unacceptable risk for such local actors.
26 See for example: H. Jo, Compliant Rebels: Rebel Groups and International Law in World
Politics (2015).
6 Conclusion
6.1 Jonathan Somer

My final thoughts link back to the notion that started this conversation, that
being reciprocity. How motivating a factor is it for States? For nsags? Surpris-
ingly, what I have seen from nsags is for the most part a fatalistic approach.
They do not expect the opposing State to respect ihl, but this does not seem to
have a significant impact on their own motivation to comply. As our discussion
has shown, those nsags who care about ihl purport to comply for more stra-
tegic reasons towards the satisfaction of international and domestic constitu-
encies. Therefore, what international actors can do is twofold. First, we can
help ensure a robust civil society in areas where nsags operate in order to raise
the reputational cost of non-compliance. This has to be done with due regard
to the safety and security of local civil society actors. Second, we can promote
ownership of ihl by nsags in their own practice and in international forums,
while ensuring that both compliant and non-compliant behaviour is recog-
nized. This means helping nsags to integrate ihl, bringing nsags in from the
cold when it comes to ihl discourse, and ensuring that international mecha-
nisms are not biased towards them. For those States providing military support
to nsags, it means that such support must be contingent on ihl compliance,
or in the case of violations, good faith pursuit of remedial measures.
Again, such an approach is not a panacea to achieve universal ihl compli-
ance by nsags. There will be those actors who are not motivated to respect
ihl and will continue to pursue strategies of alienation of the international
community and domination of local constituencies. For this reason, it is essen-
tial that we draw a line in the sand in order to give all nsags the clear choice
and consequences of either siding with “terrorists” (in other words, those dis-
regarding IHL) or siding with the rule of international law.
6.2 Andrew Carswell

I share Jonathan’s conclusion that reputation sits at the heart of ihl compli-
ance by all parties to armed conflict, State or non-State. States benefit from
a constitutional architecture that potentially allows ihl compliance to more
methodically take place. By the time armed conflict breaks out, whether on
its own territory or on expeditionary operations, the State should through its
systematic peacetime preparation be fully primed to abide by its international
legal commitments, regardless of any notion of reciprocity. However, where
State sovereignty is genuinely threatened, the political level of government
does not always act predictably. Short-term political expedience may facili-
tate an acceptance of unlawful conduct that appears justified by the rhetoric
of counter-terrorism. Nevertheless, this is precisely the moment at which

level heads must prevail. First, the executive level of government must be re-
minded of the fact that the State voluntarily undertook its ihl obligations for
reasons of sovereign self-interest. Second, the armed forces need to stand tall
for discipline and the rule of law on which their legitimacy depends. Third,
the international community has both a legal and ethical obligation to work
through diplomatic and military channels to ensure that their allies take their
legal obligations seriously, and remind them of the reputational cost of non-
compliance. Lastly, the icrc’s real-time confidential feedback to the govern-
ment regarding the effects of its conduct of hostilities on vulnerable persons
should serve as a constant reminder of the strategic value of ihl compliance.
One of the fundamental tenets of ihl is that the law should be applied
without reference to political considerations. Equally, States should not con-
flate the punitive rhetoric of counter-terrorism with the protections foreseen
in ihl. It is well understood that States do not respect the strategic motiva-
tions of their non-State enemies, but they should realize that ensuring respect
for ihl in the largest sense means creating the conditions in which compli-
ance by their adversary is viable.
Legislative Measures in International
Humanitarian Law: A Jigsaw of Subtle
Fragmentation
Azra Kuci and Jelena Plamenac*
Abstract
ihl has often been deemed outdated and frozen inside a rigid framework, unable to
provide an adequate response to the changing reality of armed conflict. The present
article contests such a view, arguing that ihl is an expanding corpus juris with legal
means to address these challenges. The authors identify two main currents of ihl
expansion: implementing legislative measures, which comprise all measures taken at
the national level to implement existing ihl rules; and developing legislative mea-
sures, which come into existence at the international or national level as a response
to the specific challenges – including international treaties focusing on specific top-
ics, customary rules, decisions of international tribunals, and national legislation
and jurisprudence. The authors further examine the effect of these measures on ihl,
arguing that national implementing measures and developing measures taken at the
international level have resulted in the advancement and strengthening of ihl rules,
as well as in an increase in the protection afforded by these rules. By contrast, the
authors conclude that developing legislative measures adopted by some States at the
national level are inconsistent with the main principles of ihl, and have an inhibiting
effect on compliance with ihl rules.
1 Introduction
ihl regulates an ever-evolving aspect of human nature – i.e. armed conflicts –

through a set of rules designed to ensure balance between, on the one hand,
the humanitarian requirements of saving lives and protecting human dignity
and, on the other hand, the military necessity of parties to the conflict focused
* Azra Kuci is Associate Situation Analyst with the Office of the Prosecutor of the International
Criminal Court. The views expressed are those of the author alone and do not necessarily
reflect the views of the International Criminal Court. Jelena Plamenac is Senior International
Humanitarian Law Expert. The views expressed are those of the author alone and do not
necessarily reflect the views of any institution the author is affiliated with.

Legislative Measures in International Humanitarian Law 57
on winning on the battlefield.1 Striking a balance in such a dynamic context is

a demanding task that requires parties to the conflict to be equipped with ad-
equate legal solutions for a particular emergency context. Legislative measures
serve as necessary tools for enabling this balancing process.
This essay focuses on legislative measures that States use at the national
level to honour obligations prescribed in existing ihl treaties, to which they
are parties, and those measures taken at international and national level to fill
in existing or perceived legal lacunae. Its aim is to reveal the fragmentation of
States’ legislative response to international legal requirements, as well as to the
reality of modern warfare and challenges that the shifted paradigm of armed
conflicts in the current state of international affairs has brought about. This
response is examined as a twofold legislative process. The first part of the re-
sponse manifests itself in States’ legal systems through the implementation of
existing conventional and customary ihl rules. Thus, this category of legisla-
tive measures encompasses those that derive from obligations under conven-
tional and customary ihl that States agreed to implement in their domestic
and international affairs (implementing legislative measures).2 The other part
of the process originates in the national legal space and progresses to the inter-
national sphere, where transferred national legislative measures influence the
development of new ihl rules. This second category encompasses legislative
actions that States have undertaken to develop the law, be it for humanitarian
concerns, to resolve legal uncertainty, or to protect their national security in-
terests3 (developing legislative measures).
A legislative measure is understood in its traditional meaning as an expres-
sion of State sovereignty to create law. No equivalent legislative authority to a
State exists at the international level, and therefore acts and instruments cre-
ated internationally are not legislative measures sensu stricto. They are instead
sources of international law,4 and transposed to its humanitarian branch, in-
clude core ihl treaties (also known as Geneva and The Hague law), as well as
other international treaties containing provisions applicable in times of armed
conflict, customary rules, fundamental humanitarian principles, and relevant
international jurisprudence. Legislative expressions of non-State armed actors,
1 J. Pictet, ‘The Formation of International Humanitarian Law’, 25(244) irrc (1985), at 20.
2 The icrc database on national implementation of ihl was an immensely useful tool in find-
ing and accessing relevant implementing legislative measures.
3 See Section 4 below.
4 Article 38 of the Statute of the International Court of Justice (1945), 33 unts 993 (entered
into force on 24 October 1945). This article describes international treaties, international cus-
tomary law, general principles of law, judicial decisions, and the teachings of the most highly
qualified publicists as subsidiary means for the determination of rules of law.
58 Kuci and Plamenac
as equal bearers of rights and duties under ihl, are left out from the current
analysis owing to its limited scope. A study into legislative powers of these
actors, in particular State-like armed groups with a capacity to adopt and im-
plement comprehensive codes of conduct and run quasi-judicial institutions,
would contribute to a more comprehensive understanding of the legislating
process in this regard.5
2 Critical Perspective
While all parties to the core ihl instruments have adopted some implement-
ing legislation on ihl, no standardised approach exists among them in the
choice of legislative measures to execute such implementation. This is because
relevant ihl provisions leave it to States to choose the procedure and appro-
priate acts to enforce treaty requirements within their national systems. The
implementation procedures for international treaties differ between States
with monist from those with dualist legal systems.6 In addition, the selection
of appropriate legislative measures largely depends on internal factors, such
as the political system of a particular State, economic interests, historical, reli-
gious, and socio-cultural traditions, as well as on specific requirements of the
implementing rule, where applicable.
These factors have also occasionally led States’ discretionary right to leg-
islate within their sovereign space towards arbitrary decisions on whether to
5 Such State-like armed groups include those in: Afghanistan, Eastern Ukraine, Iraq, South
Ossetia, and Syria. See also: M. Sassóli, ‘Implementation of International Humanitarian Law:
Current and Inherent Challenges’, 10 yihl (2007), at 65.
6 Monist systems accept that, if a State has freely consented to an international treaty by fol-
lowing established ratification procedures, such treaty automatically becomes part of its
national law and, as such, is applicable within the State’s jurisdiction. While most provisions
in the GCs and APs are self-executing, for those that are not, implementing legislation must
be adopted also in monist States in order to give them effect (e.g. criminal legislation on pun-
ishing war crimes, rules on the use and protection of the red cross and red crescent emblems,
and the rules on fundamental rights for protected persons). Dualist systems, however, per-
ceive international law as a distinct body of law, created among States that requires separate
implementing legalisation to domesticate international norms prior to their enforcement
before judicial and other national institutions. Once incorporated into the domestic system,
States are obliged to align national legislation with the duties arising from an international
treaty. This obligation is based on a general principle of international law, as expressed by
the pcij, according to which “a State which has contracted valid international obligations is
bound to make in its legislation such modifications as may be necessary to ensure the fulfil-
ment of the obligations undertaken”. See: Advisory Opinion, Exchange of Greek and Turkish
Populations, (ser. B) No. 10, pcij, 21 February 1925, at 20.
strengthen the existing humanitarian norms with valid legislative solutions or,
on the contrary, to depart from their purpose, by interpreting these norms in
favour of domestic political and economic interests. Besides apparent national
normative policies to this effect, this State-centric paradigm is also reflected
in a higher compliance quality of legislative measures that enforce protection
rules within a legislator-State’s territory, than those measures that regulate its
armed forces’ conduct abroad.
Inconsistences in the implementation of ihl are noticeable not only among
individual States, but also between groups of States belonging to different re-
gions of the world. Observed from a regional perspective, for instance, most
European countries have enacted laws criminalising grave breaches and other
serious violations of ihl, while only a few Arab countries have such criminal
repression rules in place.7
In sum, while the choice and purpose of legislative measures within a State’s
sovereign space can advance the compliance with and the development of
ihl, an increasing number of fragmented and isolated legislative processes
could also erode the law and decrease its protection. A State-brokered inter-
national monitoring mechanism, with the mandate to unify legislative behav-
iours and provide advice and guidance to relevant actors on best legislative
practices could be a solution to this legislative fragmentation.
3 Implementing Legislative Measures
ihl treaties and in particular the GCs8 and their APs9 contain a multi-layered
system of obligations that require States to ensure their implementation at the
national level. Common Article 1 GCs imposes a universal duty upon States
7 Jordan, Sudan, and the United Arab Emirates have criminalised serious ihl violations do-
mestically. See for instance: Sudan, Criminal Procedure Act (2009); uae, Federal Law No. 12
(2017).
9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protec-
tion of Victims of International Armed Conflicts (1977), 1125 unts 3; Protocol Additional to
the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-
International Armed Conflicts (1977), 1125 unts 609 (all entered into force on 7 December
1978).
to respect and to ensure respect for over 600 provisions of the GCs and their
APs in all circumstances, and arguably the entire corpus of ihl.10 Legislative
measures are among the most effective tools available to States to fulfil this
obligation, and in particular to oblige persons within their control to respect
and apply ihl rules.11
Under the umbrella of the duty to “ensure respect”, ihl treaties also contain
explicit requirements for States to put in place adequate legislative measures
for their application within the national system, as well as in their mutual rela-
tions. To ensure better implementation of ihl, most of these measures should
be adopted and effectively disseminated in times of peace among all persons
concerned, including the armed forces and law enforcement agencies.12 In that
regard, States adopt separate laws, or legal amendments to existing legal texts,
executive decrees, and military manuals. The adoption of military manuals
is especially important for more complex rules such as the rules on the con-
duct of hostilities, where the terms “military necessity”, “proportionality”, and
“precautions” are explained in more detail to be understood and internalised
within armed forces.13
3.1 National Legislative Measures Enforcing ihl Rules

States usually opt for specialised laws, legislative acts, and executive decrees, to
enforce technical provisions, such as those on the protection and definition of
protected persons; National Red Cross and Red Crescent and other aid societies
10 Common Article 1 GCs; Articles 1(1), 80(1) api. According to the icrc, Common Article 1,
codifying the customary rule pacta sunt servanda, applies to “the entire body of interna-
tional humanitarian law binding upon a particular State” (referring to the icrc study on
customary ihl). See: 2016 icrc Commentary gci, paras. 123, 126. This general obligation
of ensuring respect for the execution of GCs and APs, through adoption of adequate mea-
sures, is particularly emphasised when States are parties to armed conflict. See: Article 45
gci; Article 46 gcii; Article 80 api.
11 States have an obligation to notify each other through a depositary, or in case of an armed
conflict through the protecting powers, about the laws and regulations that they have ad-
opted with the aim to ensure the application of GCs and api. See: Article 48 gci; Article
49 gcii; Article 128 gciii; Article 145 gciv; Article 84 api.
12 Article 1 of The Hague Convention (iv) Respecting the Laws and Customs of War on Land
and its annex: Regulations concerning Laws and Customs of War on Land (1907) (here-
inafter The Hague Regulations of 1907); Article 47 gci; Article 48 gcii; Article 127 gciii;
Article 144 gciv.
13 E.g. Military Manual (2005) of the Netherlands provides examples of indiscriminate at-
tacks. See: J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian
Law, Vol. ii (2005), at 297–335; the UK Law of Armed Conflict Manual (2004) explains
the purpose of advanced warnings to civilian population. See: J.-M. Henckaerts, L.
Doswald-Beck, Customary International Humanitarian Law, Vol. ii (2005), at 400–413.
and protected objects;14 protection and use of distinctive emblems, signs, and
symbols;15 creation of hospital and safety zones and localities;16 detention and
related procedural and judicial guarantees;17 procedures for searching missing
persons;18 burial procedures;19 and the creation of entities such as the National
Information Bureau.20
Some legislative solutions enforce special protection for specific categories
of protected persons, including medical and religious personnel, and women
and children. In particular, States have increasingly legislated on the protection
afforded to children in armed conflicts by, inter alia, regulating the minimum
age requirement for the recruitment into national armed forces, providing
safeguards for reintegration of child soldiers, and excluding the capital pun-
ishment for persons under the age of 18.21 Yet, legislation differs on the scope
of such special protection, depending on the international instrument that
States have chosen to implement domestically. While some have extended the
protection from enlistment and conscription to persons under the age of 18 by
implementing the Optional Protocol to the Convention on the Rights of the
Child on involvement of children in armed conflict,22 other States have en-
acted laws prohibiting recruitment and participation in hostilities of children
14 Articles 24–26 gci; Articles 13, 22–25, 39(2), 42(3) gcii; Articles 4, 17 gciii; Articles 4,
18, 20, 25, 27, 63 gciv; Article 8, 16–18, 24–31, 44, 50, 61–67 and Annex i, 71 api. See for
instance: Armenia, ‘Law No. HO-309 on Civil Defence’ (2002).
15 Articles 36, 38–44, 53, 54 gci; Articles 39, 41–45 gcii; Articles 18, 20–22, 56 gciv; Articles
8, 18, 23, 38, 39, 85 api and Annex i; apiii (which concerns the adoption of an additional
distinctive emblem composed by a red crystal on white background).
16 Article 23 gci; Article 14 gciv.
17 Articles 12–21, 49–57, 69–71, 79, 82–108 gciii; Articles 31, 32, 37, 41–43, 51, 68–78, 95, 110,
117–126 gciv; Articles 11, 45, 75 api. States should also ensure that domestic legislation is
in line with Articles 4–6 apii. See for instance: Australia, ‘Geneva Conventions Act’ (1957);
Barbados, ‘Geneva Conventions Act’ (1980).
18 Article 26 gciv; Article 33 api. See for instance: Bosnia and Herzegovina, ‘Law on Miss-
ing Persons’ (2004); Colombia, ‘Law on the Creation of a Search Mechanism for Missing
Persons’ (2005); Egypt, ‘Missing Persons Law’ (2006); Guatemala, ‘Presidential Decree on
the Creation of a Temporary Commission on Missing Persons’ (2006).
19 Article 20 gcii; Article 120 gciii; Articles 129–130 gciv; Article 34 api.
20 Article 122 gciii; Article 136 gciv; see also: Articles 16–17 gci; Article 19 gcii. See for
instance: Argentina, ‘Decree creating the National Information Bureau’ (2004); France,
‘Circular Providing for a National Information Bureau Relating to Prisoners of War’ (2010).
21 See for instance: Chad, ‘Presidential Ordinance No. 001/PR/2014 on Child Soldiers’ (2014);
El Salvador, ‘Decree No 45 of 6 October 2004 Creating the Inter-institutional Commission
of Search for Missing Children as a Consequence of the Armed Conflict’ (2004).
22 E.g. Belarus, ‘Law of the Republic of Belarus no. 223-Z on Introducing Amendments and
Additions to the Criminal Code of the Republic of Belarus’ (2007).
under the age of 15 years, in accordance with the provisions of the Convention
on the Rights of the Child and the APs.23
States also use legislative measures to place objects of a particular value to
local communities, such as medical and education facilities and cultural prop-
erty, under enhanced protection applicable in times of armed conflict. Special-
ised laws, executive decrees, and military manuals are among such measures.24
Those States that have adopted laws on national cultural heritage provide safe-
guards for cultural property from destruction, alternation, and pillage. These
safeguards are achieved through a clear definition of national cultural heritage
and detailed implementation of the 1954 The Hague Convention on Cultural
Property and its Protocols, as well as other specialised treaties, such as the
Convention on the Means of Prohibiting the Illicit Import, Export, and Trans-
fer of Ownership of Cultural Property of 1972.25 These laws regulate the proce-
dures for granting special or enhanced protection under the 1954 Convention
or its Second Protocol; the positioning of the distinctive emblem on protected
cultural property; and the prohibitions on the use of such property for military
purposes (without exception by national armed forces), or on the location of
legitimate military targets in its immediate surroundings.26 To enhance this
protection, a number of States created national bodies responsible for imple-
menting the obligations arising under the 1954 Hague Convention and its Pro-
tocols in armed conflict.27
To limit the harm caused to persons and objects caught in armed violence,
States have further imposed restrictions on warring parties in the choice of
means and methods, by which they conduct their military operations. This
is done through the implementation of ihl instruments prohibiting certain
types of weapons. These instruments enshrine the fundamental principles
23 Article 38(2) Convention on the Rights of the Child (1954), 1577 unts 3 (entered into force
on 2 September 1990); Article 77(2) api; Article 4(3)(c) apii. E.g. US, ‘Child Soldiers Ac-
countability Act’ (2008).
24 E.g. National laws on the use of red cross, red crescent and/or red crystal emblems, regu-
late the placement of distinctive emblems on places designated to collect and treat the
wounded and the sick, affording them special protection from attack. See: Article 19 gciv.
25 Article 2 Convention for the Protection of Cultural Property in the Event of Armed Con-
flict (1954), 249 unts 240 (entered into force on 7 August 1956) (hereinafter The Hague
Convention of 1954). See also: Articles 27, 56 The Hague Regulations of 1907; Article 53
api; Article 16 apii.
26 Articles 4, 8 The Hague Convention of 1954; Article 11 Second Protocol to The Hague Con-
vention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict
(1999), 38 ilm 769 (entered into force 9 March 2004) (hereinafter Second Protocol to The
Hague Convention of 1954).
27 E.g. Armenia, Azerbaijan, France, and Poland.
of distinction, proportionality, and precaution, as well as the principle of

humanity incorporated in the prohibition of causing superfluous injuries or
unnecessary suffering.28 Following the St. Petersburg Declaration of 1868, The
Hague Declarations of 1899 and 1907, and the Geneva Protocol of 1925, a se-
ries of international conventions were also adopted after the Second World
War, to prevent the proliferation of modern weapons which are contrary to
ihl requirements. These include the trinity of treaties prohibiting weapons
of mass destruction: biological weapons,29 chemical weapons,30 and nuclear
weapons,31 as well as conventions on certain conventional weapons, anti-
personnel land mines, and cluster munition.
Each of these treaties requires States parties to adopt measures that would
ensure the prohibition and prevention of direct actions related to the use, de-
velopment, production, purchase, retention, stockpiling, transfer of a particu-
lar weapon, as well as indirect actions of providing assistance, encouragement
or inducement of direct actions.32 In addition, such measures should regulate
international verification procedures of compliance with the treaty at the
national level.33
States have implemented disarmament conventions either by (i) enact-
ing specific legislative measures that combine implementation obligations;34
(ii) taking partial measures of amending existing laws, mostly in relation to
28 Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, 8 July 1996, para. 78.
29 Convention on the Prohibition of the Development, Production and Stockpiling of Bacte-
riological (Biological) and Toxin Weapons and on Their Destruction (1972), 1015 unts 163
(entered into force on 26 March 1975) (hereinafter Biological Weapons Convention).
30 Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on their Destruction (1993), 1974 unts 45 (entered into force on
29 April 1996) (hereinafter Chemical Weapons Convention or cwc).
31 Treaty on the Prohibition of Nuclear Weapons (opened for signature on 20 September
2017).
32 Article 4 Convention on Biological Weapons; Articles 1, 6 Convention on Cluster Muni-
tions (2008), CCM/77; Articles 1, 9 Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction (1997), 2056
unts 241 (entered into force on 3 January 1999), (hereinafter Antipersonnel Mine Ban
Convention or Ottawa Convention); Article 14 of the Protocol on Prohibition or Restric-
tions on the Use of Mines, Booby- Traps and Other Devices (as amended on 3 May 1996)
(hereinafter Protocol ii to the Convention prohibiting Certain Conventional Weapons of
1980), 2046 unts 93 (entered into force on 3 December 1998).
33 Article 7 cwc; Article 7 Convention on Cluster Munitions.
34 Brazil, ‘Law No. 11.254 on Administrative and Penal Sanctions in the Case of Activities
Prohibited by the Convention on Chemical Weapons’ (2005); France, ‘Law on Biological
or Toxin Weapons’ (1972); Germany, ‘Act Implementing the Ottawa Convention on anti-
personnel landmines’ (1998).
criminal repression obligations (discussed below);35 or (iii) declaring general

provisions on arms trafficking as sufficiently appropriate to respond to
particular treaty obligations, such as the pursue and transfer of a prohibited
weapon.36 Most legal systems choose a combination of these approaches.37
In addition to prohibiting certain weapons, States are also required to pro-
hibit the trade of permissible arms and other military equipment that are
likely to be used to violate or facilitate a violation of ihl rules. Thus, a number
of States regulate the export, import, and transfer of arms with external par-
ties through domestic legal acts, such as orders and regulations, for granting
trade licences to individuals and companies within their jurisdiction.38 The
adoption of the 2013 Arms Trade Treaty (att) has contributed to strengthening
arms trade control, by requiring States parties to adopt appropriate effective
legislative measures.39 It specifically incorporates, in its Preamble, the duty to
ensure respect for ihl, while also recognising the “political, security, economic
and commercial interests” of States in conducting international arms trade.
When assessing the permissibility of a trade deal, States parties should apply a
standard of direct knowledge or reasonable suspicion that arms would be used
to violate or facilitate violations of ihl.40
Given the relatively young life of this important treaty, the number of avail-
able national legislative measures adopted to implement att provisions is still
limited. New Zealand, for example, assessed that most of its existing legislation
is sufficient to comply with the att, while it has committed to establish the re-
quired legal framework for brokering conventional arms and updating export
authorisation risk assessment criteria.41
35 E.g. El Salvador, ‘Amendments to the 2005 Penal Code (implementation of Article 9 of

the Ottawa Convention)’ (2005); Ethiopia, ‘Proclamation No. 414/2004 to Amend Criminal
Code’ (2004); Guinea, ‘Law on the Criminal Code’ (2016) (its Article 848 prohibits chemi-
cal, small arms and light weapons, antipersonnel mines and cluster munitions).
36 Out of 102 State parties, 27 have enacted specific legislative measures in accordance with
Article 9 Convention on Cluster Munition, 24 are in the process of adopting or amend-
ing the existing laws, while 32 assessed that the existing domestic laws fulfil their treaty
obligations. See: International Campaign to Ban Landmines–Cluster Munition Coalition,
‘Cluster Munition Monitor 2017’, June 2017.
37 Ibid, at 37.
38 The UK, ‘The Export Control Order (former)’ (2008); New Zealand, ‘Customs Export Pro-
hibition Order’ (2011).
39 Article 14 Arms Trade Treaty (2013), 52 ilm 988 (entered into force 24 December 2014)
(hereinafter att).
40 Article 6 att.
41 New Zealand, ‘International Treaty Examination of the Arms Trade Treaty’ – Report
of the Foreign Affairs, Defence and Trade Committee, July 2014. To facilitate the att
Since the majority of ihl treaties require State parties to penalise breaches
of their provisions, the criminal repression of ihl violations is one of the most
widely legislated issues.42 Over 160 States have adopted various measures, such
as criminal codes and criminal procedure codes, military criminal codes, leg-
islative acts, amendments to existing laws, regulations, executive decrees, and
orders, to effectively prosecute and punish ihl violations. The GCs and APs i
and iii explicitly require that States enact penal sanctions for grave breaches
of these treaties.43 In this regard, criminal procedure codes of State parties
must also regulate the search of persons suspected to have committed a grave
breach, their prosecution on the basis of universal jurisdiction, and, where ap-
propriate, extradition of such persons to a State which would have a prima
facie case.44 Similar obligations to adopt legislative actions for successful pros-
ecution and extradition are required under The Hague Convention on Cultural
Property and its Second Protocol, as well as certain weapons conventions.45
Various States have also passed legislation that criminalises breaches other
than the grave breaches as war crimes, as well as crimes against humanity and
genocide. This has been achieved through amendments and legislative acts in-
corporating relevant provisions of the icc Statute in national criminal law,46
or by enlisting particular offences in domestic criminal codes.47 Some States
have adopted a mixed solution, such as Fiji where the Crimes Decree of 2009
implementation in Pacific countries, New Zealand promoted a model law, ‘Arms Trade
Treaty: Model Law’.
42 Article 50 gci; Article 51 gcii; Article 130 gciii; Article 147 gciv; Articles 11(4), 85–86 api.
43 See for instance: Geneva Conventions Act of Australia (1957), Barbados (1980), Botswana
(1970); Belgium, ‘Law on the Repression of Serious Violations of International Humani-
tarian Law’ (1999); Cook Islands, ‘Geneva Conventions and Additional Protocols Amend-
ment Act’ (2011) (inter alia, establishing as a grave breach of Protocol Additional iii any
“misuse of the third Protocol emblem amounting to perfidious use in the meaning of
Article 85 paragraph 3 of Protocol Additional i”); Cyprus, ‘Geneva Conventions Ratifica-
tion Law of 1966’, and ‘Law on the Ratification of Additional Protocol i to the Geneva
Conventions’ (1979).
44 Article 49 gci; Article 50 gcii; Article 128 gciii; Article 145 gciv; Article 84 api. See also:
J.-M. Henckaerts, Doswald-Beck, supra note 13, at 568–611.
45 Article 28 The Hague Convention of 1954; Articles 15, 21 Second Protocol to The Hague
Convention of 1954. See also: Article 6 Convention on Cluster Munition; Article 9 Ottawa
Convention; Article 14 Protocol ii to the Convention prohibiting Certain Conventional
Weapons of 1980.
46 E.g. Argentina, Australia, Austria, Bosnia and Herzegovina, Burkina Faso, Cote d’Ivoire,
Croatia, Cyprus, Denmark, Finland.
47 E.g. Angola, Armenia, Bangladesh, Belarus, Burundi, Colombia, Congo, Chile, Gambia.
Some States, however, have not explicitly included international crimes domestically,
e.g. Bolivia, Bahrain, Cameroon, Ecuador. Among these States, some followed a more
progressive approach of overcoming a distinction between war crimes committed in
amended the 1945 Penal Code to enact crimes against humanity and genocide,
while grave breaches as war crimes are criminalized under a separate Geneva
Conventions Promulgation of 2007 and its amendment of 2009.48 In addition,
some States criminalised violations of ihl through adopting specialised laws
or revising legislation that emphasised the criminalisation of prevailing vio-
lent acts in their particular historical contexts.49
3.2 Implementing Legislative Actions beyond ihl Requirements

The scope of legal measures taken to implement the same treaty obligations
differs across a number of domestic legal systems. A good example of this in-
consistency is found in the comparison between national laws of some States
whose armed forces participate in military coalitions jointly with States non-
parties and those States that have no such involvement. The participating-
States’ legislative solutions, for instance, tend to alter treaty obligations of
weapon conventions to prohibit indirect actions (such as providing assistance
in the use, transfer, and stockpiling of cluster munitions or land mines), by
allowing exceptions in situations when members of their armed forces are
involved in joint military operations with non-State parties, which might be
engaged in acts prohibited by the Convention. States that have adopted such
solutions include those that regularly deploy their troops in joint operations
with the US, a non-signatory State which has previously used cluster muni-
tions in its overseas operations.50 Other States, such as Samoa, on the other
hand, went a step further to enhance the prohibition by adopting progressive
legal measures that extend the personal scope of application to corporations
and investment funds.51
international armed conflicts and those committed in non-international armed conflicts

(e.g. Armenia, Belarus).
48 Fiji, ‘Penal Code, 1945 (as amended by Penal Code (Penalties) (Amendment) Act 2003’
[Act. No. 7 of 2003]); ‘Geneva Conventions Promulgation 2007’; ‘Geneva Conventions
(Amendment) Promulgation 2009’.
49 E.g. Argentina, ‘Law on Enforced Disappearance’ (1994); Brazil, ‘Law No. 9.455 on the
Crime of Torture’ (1997); Burkina Faso, ‘Law on Prevention and Repression of Torture and
Similar Practices’ (2014); Colombia, ‘Law on Genocide, Forced Disappearance, Forced
Displacement and Torture, and Making Certain other Provisions’ (2000) and ‘Law on the
National Statute on Kidnapping’ (1993).
50 See for instance: Australia, ‘Criminal Code Amendment (Cluster Munitions Prohibitions)
Act’ (2012); Canada, ‘Bill C-6, An Act to Implement the Convention on Cluster Munitions’
(2013); France, ‘Act for the Elimination of Cluster Munition’ (2010); UK, ‘Cluster Munitions
(Prohibition) Act’ (2010). The US, for instance, used cluster munition in 2003 in Iraq and, in
2009, in a strike in Yemen. See: Landmine and Cluster Munition Monitor, ‘United States –
Cluster Munition Ban Policy’ (last updated: 8 August 2016).
51 Samoa, ‘Cluster Munition Prohibition Act’ (2012).
Similar normative discrepancies are also found in relation to the att as-
sessment standards for national export control, which seem insufficiently
robust to be able to ensure full compliance with Common Article 1 GCs. The
UK has applied a “clear risk” standard in granting arms trade licences to ex-
ternal partners, including Saudi Arabia, despite numerous credible reports
that this country allegedly committed serious violations of ihl in the context
of the armed conflict in Yemen.52 The UK High Court confirmed the govern-
ment’s assessment that there was no clear risk that exported arms to Saudi
Arabia would be used for committing serious ihl violations, acknowledging
that such decisions are based on a balancing assessment of various “complex
and competing factors”.53 The Dutch Parliament, however, had a different reac-
tion to the national government’s decision to export weapons to Saudi Arabia
under the same standard. In 2016, it enacted legislation that banned weapon
export to this country, because of allegations of repeated violations of ihl in
Yemen.54
The nature and scope of implementing measures depends not only on the
foreign policy context, but also on wider political, historical, and socio-cultural
factors within a given society, as mentioned above. This is reflected in the
practice of States to legislate components of criminal repression not explicitly
referred to in ihl treaties, but which respond to internal political matters or
can contribute to national reconciliation in the aftermath of an armed conflict.
These include reparations and similar measures for victims of ihl violations;55
legislative acts and amendments implementing criminal justice aspects agreed
in a peace process;56 immunities, pardons and amnesties for ihl violations;57
52 The UK, ‘Consolidated EU and National Arms Export Licensing Criteria’, criterion 2(c) (25
March 2014).
53 Judgment, R (on the application of Campaign Against the Arms Trade) v. The Secretary
of State for International Trade and Interveners, Case No. CO/1306/2016, High Court of
Justice, 10 July 2017, paras. 209–210.
54 Alleged grave human rights violations in Saudi Arabia were also among the reasons for
the ban, Jurist, ‘Dutch Parliament Approves Ban on Arms Export to Saudi Arabia’ (16
March 2016). See also: European Parliament, Res. 2515 on the humanitarian situation in
Yemen (25 February 2016).
55 Belgium, ‘An Act to Provide New Measures for Victims of War’ (2003); Colombia, ‘Law No.
1719 on Access to Justice and Other Matters for Victims of Sexual Violence and Especially
of Sexual Violence Related to the Armed Conflict’; ‘Law on Attention, Assistance and
Integral Reparation to the Victims of the Internal Armed Conflict and other Provisions’
(2011).
56 E.g. Colombia, ‘Legislative Act Establishing Legal Instruments of the Transitional Justice
within the Framework of Article 22 of the Constitution and other Provisions’ (2012).
57 E.g. Colombia, Argentina, Chad, Congo, Cote d’Ivoire, El Salvador.
and the creation of special bodies for the investigation and prosecution of ihl
violations.58
3.3 Non-State Parties’ Contributions to the Protective Scope of

ihl Treaties
All States, irrespective of their accession status, remain bound by the duty to
ensure respect for ihl at all times under Common Article 1 GCs. Beyond this
general obligation, however, State parties to ihl treaties, such as the weapon
conventions, are required to comply with specific technical duties through
their legislative measures, unlike States non-parties. Yet, even if a State decides
not to consent to a particular ihl treaty, it can still enact domestic legislation
that limits prohibited acts and thus contribute to the object and purpose of
that treaty. Canada, for instance, although not a party to the att yet, is in the
process of adopting a more rigorous law which would fully implement the as-
sessment criteria as provided in Article 7 att.59
The US also, while not a party to the Conventions on Antipersonnel Land-
mines and on Cluster Munitions, has previously partially contributed to a dis-
armament process by adopting an executive directive placing a moratorium on
the assistance, transfer, or sale of landmines and cluster munitions, except for
cluster munitions that have a 99 percent or higher tested rate and are guaran-
teed to be used only against military objectives.60 In addition, by imposing le-
gal measures prohibiting acts of production, transfer, and use of mines, booby
traps, and other explosive devices as envisaged under the 1998 Amended Pro-
tocol ii to the ccw, the US overcame the legislative gap of not joining the
Ottawa Convention to a certain extent.61
58 E.g. Argentina (national investigative committee), Cambodia (Extraordinary Chambers

for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea);
Central African Republic (Special Criminal Court); Chad (Special Criminal Court of Jus-
tice to try Hissene Habré); Croatia (War Crimes Committee).
59 House of Commons of Canada, Bill C-47, An Act to Amend the Export and Import Permits
Act and the Criminal Code (Amendments Permitting the Accession to the Arms Trade
Treaty and other Amendments) (31 March 2017).
60 The US, ‘DoD Policy on Cluster Munitions and Unintended Harm to Civilians’ (19 June
2008); ‘Consolidated Appropriations Act’ (2008), 121 stat. 2336, Sec. 646. The same deci-
sion also envisaged a plan to remove all the remaining cluster munition from the US arse-
nal by 2019. This plan, however, has been reversed in December 2017 with the US military’s
revised policy on cluster munition by which it has been decided to retain older cluster
munition, until it is replaced with more precise munitions in future, without indicated
timeframe when such replacement could end.
61 The US, ‘War Crimes Act’ (2006), para. 2401.
4 Developing Legislative Measures
While implementing legislative measures are by their nature confined to the

State level, developing measures encompass also those legislative acts that in-
fluence the formation of ihl rules at the international level. Most of these
domestic instruments have been adopted and enacted sporadically and spon-
taneously, creating fragmentation in the development process in the last half
a century after the adoption of the GCs and their APs. These responses mainly
manifested themselves at the international level, through the adoption of ihl
treaties regulating specific aspects of armed conflicts, the growth of interna-
tional jurisprudence that expanded and reinforced ihl rules, as well as through
the crystallization of certain ihl rules into customary international law. At the
national level, responsive actions materialised in legislative measures aimed at
interpreting certain ihl notions pursuant to national security policies.
4.1 Developing Legislative Measures at the International Level

4.1.1 “Specialised” ihl Treaties
Weapon conventions illustrate the manner in which the two forces of imple-
mentation and development of the law work in synergy. The core ihl treaties
set basic rules under which parties to the conflict are limited, in their choice
of means and methods of warfare, by fundamental ihl principles and, in par-
ticular, the prohibition to cause superfluous injury or unnecessary suffering, as
mentioned above.62 They thus define a general legal framework which is suf-
ficient to pave the legislative way for future rules on the conduct of hostilities.
The law is not, however, fully able to foresee sufficiently in advance the tech-
nological developments in the military industry and new methods of warfare
that may be devised, so as to be able to envisage all-encompassing solutions at
a given point in time.63
To reinforce these rules and to address certain weapons viewed to be of
particular concern to the international community, such as weapons of mass
destruction, States enforced national legislative measures which in turn
prompted the adoption of specific international treaties to prohibit or restrict
their use. In the context of the nuclear weapons prohibition, such States in-
clude Austria, Mongolia, New Zealand, Norway, and the Philippines, which
enacted domestic legislation (banning the use in and transfer to their terri-
tory of nuclear weapons) long before such a prohibition was formulated at the
62 Article 35 api.
63 Pictet, supra note 1.
international level.64 These legislative measures (together with the political

will in some States and strong advocacy campaigns led by civil society organ-
isations) had a significant impact on the materialisation and adoption of the
Treaty on the Prohibition of Nuclear Weapons in 2017, which reinforced the
basic rules of api on the conduct of hostilities in its Preamble.65 Similar leg-
islative measures imposing a comprehensive ban on these weapons are natu-
rally absent in the national legal systems of nuclear weapon States. The States
with nuclear capacity, which are parties to api at the same time, even made
reservations to this treaty, stating that their rules regulate only conventional
weapons and not nuclear weapons.66 Yet, national security interests pressured
some nuclear weapon States to at least partially enact the prohibition, by lim-
iting its personal scope to non-State actors through their counter-terrorism
legislation.67
Article 36 api also creates a solid foundation to prohibit or limit the use
of weapons that would violate fundamental principles of ihl. In particular, it
creates the obligation for States to adopt a mechanism for assessing the law-
fulness of a weapon or technology, before it is developed or acquired for use
by States’ armed forces.68 This rule, as well as the possibility to adopt specific
64 R. van Riet, ‘National Legislative Measures to Further Nuclear Abolition’, World Future
Council, March 2012.
65 The transfer of developing national measures into the international legislative space has
been supported by the increasing involvement of civil society and its influence on the
process leading to the adoption of these treaties. Non-governmental organisations en-
tered the law-making process in the 1990s, with a transnational campaign to ban anti-
personnel landmines, when around 1400 of them from over 90 countries participated in
the public campaign. It further continued with initiatives that resulted in the adoption of
convention on the cluster munition ban. See for instance: Human Rights Watch, ‘Interna-
tional Campaign to Ban Landmines’, 1999.
66 See for instance: The UK, ‘Declaration’ (2 July 2002). See also: The UK, ‘Manual of the Law
on Armed Conflict’, jsp 383 (last updated: 2014), para. 5.29.3. A particular reference was
made to article 35(3) prohibiting the use of means and methods of warfare which would
cause widespread, long-term, and severe damage to the natural environment. Other
nato members, which do not possess nuclear weapons, but can deploy and store such
weapons under the nato nuclear weapons sharing concept (Belgium, Germany, Italy,
and the Netherlands), as well as nato members that are not part of the nuclear weapons
sharing concept (Canada and Spain), made the same reservations. See: J. Gaudreau, ‘The
Reservations to the Protocols Additional to the Geneva Conventions for the Protection of
War Victims’, 85(849) irrc (2003), at 143.
67 The UK Terrorism Act, for example, prohibits the use of nuclear weapon or other nuclear
explosive devices, as well as nuclear facilities and sites. See: The UK, ‘The Terrorism Act
2006 (Commencement No. 1) Order’ (2006).
68 The legal requirement stipulated in Article 36 api is that all “new weapons, methods or
means of warfare” must be reviewed.
treaties regulating certain means and methods of warfare, allows States to be

more flexible in their approach on this issue and to react even before a par-
ticular weapon is used in armed conflicts. This was the case, for example, with
Protocol iv to the Convention on Certain Weapons adopted to ban blinding
lasers, a weapon that was at the time still in development and has not been
used before.69 More recently, a campaign has been launched by several non-
governmental organisations to influence States to pre-emptively ban fully
autonomous weapons.70
4.1.2 Customary International Law

While customary law is not adopted through conventional legislative proce-
dure, it does form an important part of the international legal framework.
Customary ihl rules come into existence through interplay between mea-
sures and rules at the international and national level. International treaties
demand and encourage the creation of national implementing legislation and,
in return, these measures re-emerge again at the international level, this time
in the form of proof of State practice and opinio iuris that can confirm the
existence of international customary rules.71 This boomerang effect of national
measures on the development of international law is best seen in the numer-
ous different documents analysed and used for the purpose of the icrc Cus-
tomary Law Study.72
The significance of customary law to the development and reinforcement
of ihl rules is twofold. First, it promotes a wider application of the existing
rules. A number of identified customary rules are identical to the exist-
ing treaty rules applicable in international armed conflicts, and by recognising
them as customary, their application is extended to all States (arguably except
69 L. Doswald-Beck, ‘New Protocol on Blinding Laser Weapons’, 36(312) irrc (1996).

70 E.g. Campaign to stop killer robots (http://www.stopkillerrobots.org/). There have been
steps taken in this direction, for example in the European Parliament Resolution of 27
February 2014 on the Use of Armed Drones (2014/2567 rsp), Article 2(d).
71 For more on State practice and opinio iuris and the full process of developing customary
rules, see: A. Clapham, Brierly’s Law of Nations: An Introduction to the Role of Interna-
tional Law in International Relations (2012), at 57–63.
72 The authors of the Study listed the following sources of State practice that they collected:
“military manuals, national legislation, national case-law, instructions to armed and se-
curity forces, military communiqués during war, diplomatic protests, opinions of official
legal advisers, comments by governments on draft treaties, executive decisions and regu-
lations, pleadings before international tribunals, statements in international organisa-
tions and at international conferences and government positions taken with respect to
resolutions of international organisations”. See: Henckaerts, Doswald-Beck, supra note 13,
at xxxviii.
persistent objectors),73 regardless of their treaty ratification status.74 Second,

it is recognised that a large number of specific rules previously applicable only
in international armed conflicts now also apply in non-international armed
conflicts.75
4.2 Reactions in National Legislation to the Challenges of

Modern Battlefield
States have used their legislative powers to interpret broader ihl notions, to
operationalise technical legal requirements, including those on the conduct of
hostilities, and to fill in legal lacunae mainly present in the limited legal frame-
work applicable to non-international armed conflicts. This came as a response
to continuous metamorphoses of contemporary armed conflicts, as reflected
in the rapid technological development in the arms industry and the use of
new weapon systems in combat, a growing accessibility of these products to a
wide range of non-State actors, evolving methods of warfare,76 as well as the
mutating nature of non-State armed actors from flexible horizontal networks
to State-like armed actors.77
73 If a State objects to the emergence of a new customary rule during its formation and con-
tinues to object persistently afterwards, it can be considered as persistent objector and
the rule will not be applicable to that State (unless it is considered ius cogens). Once a rule
has been identified as customary law, a State cannot decide that the rule does not apply
to it. See for instance: ila, ‘Final Report of the Committee on the Formation of Custom-
ary (General) International Law – Statement of Principles Applicable to the Formation
of General Customary International Law’, London 2000, Principle 15 and Commentary
thereto, at 738.
74 J-M. Henckaerts ‘Annex to Study on Customary International Humanitarian Law: A Con-
tribution to the Understanding and Respect for the Rule of Law in Armed Conflict’,
87(857) irrc (2005), at 198.
75 E.g. the basic principles of conduct of hostilities, the rules on specifically protected per-
sons, the rules on the use of means and methods of warfare, and the treatment of persons
in the power of a party to a conflict. An important milestone in identifying these custom-
ary ihl rules was the publication of the icrc Customary Law Study in 2005, which recog-
nised that a substantial number of ihl rules have also formed as a custom: 161 customary
rules were identified to be applicable in international armed conflict, of which 148 rules
are recognised as applicable in non- international armed conflict as well. It was recog-
nised that 8 of these rules were “arguably” applicable because “practice generally pointed
in that direction but was less extensive”, ibid, at 198–212.
76 These include cyber warfare, asymmetrical warfare, “proxy” warfare, as well as changes in
States’ military tactics to deploy in overseas military operations jointly with allies and as
members of international organisations.
77 E.g. the Taliban in Afghanistan; the Islamic State of Iraq and the Levant in Syria/Iraq; the
Donetsk People’s Republic in Ukraine; the Houthis in Yemen.
4.2.1 “Gold-plating” ihl Rules

The course of international affairs and the emergence of transnational armed
groups have shifted the paradigm of armed conflicts, resulting in widening
their temporal, geographical, and material scope, as well as in their devastating
impact on civilians. The transformed reality of armed conflicts led to a rebal-
ancing in favour of the broader notion of State security and military necessity
at the expense of humanitarian principles. In this unbalanced context, there
are States that consider that the adoption of additional legislative measures is
not required by ihl treaties, but that such measures are necessary to increase
the efficiency of their response to security threats and challenges of armed
conflicts. The UK Appeals Court referred to such practice of legislating beyond
the requirements of an international obligation as “gold-plating”, stating that
such practice can be “objectionable”.78
This practice has been particularly used by States engaged in armed con-
flicts outside of their own territory and in multinational operations lasting for
a prolonged period of time.79 Some of these States responded to a legal gap in
the protection of persons detained in the context of a non-international armed
conflict, by adopting counter-terrorism laws, enacting amendments to existing
laws, or relying on jurisprudence of national courts to regulate various aspects
of such detention. These measures offer domestic solutions for the legal basis
and procedures for detention, and prescribe penal sanctions for mere partici-
pation in the armed conflict, illustrating the inherent inequality in the nature
of parties to non-international armed conflict. In such a legal framework,
members of non-State armed groups are denied the belligerent privilege not to
be prosecuted for carrying out military operations against government armed
forces.80 Instead, their acts often amount to crimes under national law.81 In ad-
dition to national legislative measures, States engaged in joint military opera-
tions also found a way to regulate the transfer of detainees to the host country
and their duties and responsibilities in this regard by entering into bilateral
agreements.82
78 Judgment, R v Gul, the UK Supreme Court, Appeals Chamber, 23 October 2013, para. 53.
79 E.g. The US and other nato States in Afghanistan and Iraq.
80 Article 6(5) apii.
81 Judgment, R v Gul, supra note 78; The US President, ‘Military Order – Detention, Treat-
ment and Trials of Certain Non-citizens in the War against Terrorism’ – Executive Order
No. 7463, 66 Fed. Reg. 57833 (2001); and the US, ‘Military Commissions Act’, 10 u.s.c., paras.
948a–950w (2006 and Supp. ii 2009).
82 Several States with contributing troops to the isaf force in Afghanistan signed bilateral
agreements on the transfer of detainees with the Ministry of Defence in Afghanistan
(Canada, Denmark, Norway, the Netherlands, and the UK).
It has been noted that some States interpret the existing ihl rules in a way
that is not consistent with the fundamental principles of ihl and diverge from
the widely accepted meaning of the rules, by incorporating national security
policies in their legislative measures.83 The US has been criticized, for example,
for expanding the definition of military objective to include “war sustaining”
activities, meaning that those objects and activities that are found to generate
revenue for enemy’s armed forces (e.g. oil fields, refineries) are considered to
be a legitimate military objective.84 However, when interpreting the definition
of a military objective, the icrc Commentary explains that “it is not legitimate
to launch an attack which only offers potential or indeterminate advantages”.85
It was also argued that Israel has taken the advantage of a certain degree of
discretion which the occupying power retains in deciding what constitutes
“public order and safety” under Article 43 of the Hague Regulations, and what
is considered “absolutely necessary by military operations” under Article 53
gciv, to justify actions and decisions regarding the expropriation and destruc-
tion of property belonging to the population in the occupied territory.86 While
a certain level of latitude is allowed under ihl, in order to balance different
requirements, it also leaves open the possibility of interpreting relevant rules
by belligerent parties contrary to their duty to act bona fide and in a manner
that can erode the protection guaranteed by these rules.
83 For a critique of the US Law of War Manual, see for instance: O. Hathaway, ‘The Law
of War Manual’s Threat to the Principle of Proportionality’, Just Security, 23 June 2016,
available at: https://www.justsecurity.org/31631/lowm-threat-principle-proportionality/;
M. Lederman, ‘Troubling Proportionality and Rule-of-Distinction Provisions in the Law of
War Manual’, Just Security, 27 June 2016, available at: https://www.justsecurity.org/31661/
law-war-manual-distinction-proportionality/.
84 While Article 52(2) api allows for targeting of economic objects directly contributing to
the military operations of an opposing party, with their “war-sustaining” hypothesis, the US
has interpreted this rule to include a wide range of economic objects that are usually con-
sidered to be civilian objects. For the US position, See for instance: J.M. O’Connor, ‘Applying
the Law of Targeting to the Modern Battlefield’ (remarks delivered at New York University
School of Law), 28 November 2016, available at www.defense.gov/Portals/1/Documents/
pubs/Applying-the-Law-of-Targeting-to-the-Modern-Battlefield.pdf; R. Goodman, ‘The
Obama Administration and Targeting “War-Sustaining” Objects in Non-International
Armed Conflict’, 110 Am. J. Int’l L. 663 (2016). For a critique of such an interpretation,
see for instance: E. Chertoff, Z. Manfredi, ‘Deadly Ambiguity: ihl’s Prohibition on Target-
ing Civilian Objects and the Risks of Decentered Interpretation’ (4 July 2017), available at
ssrn: https://ssrn.com/abstract=2997274.
85 1987 icrc Commentary api, at 636.
86 For a critical view of the Israeli Supreme Court’s decisions and their interpretation of the
law of occupation, see: D. Kretzmer, The Occupation of Justice: The Supreme Court of
Israel and the Occupied Territories (2002); S. Weill, The Role of National Courts in Apply-
ing International Humanitarian Law (2014), at 18–45.
This practice of embedding national security interests in legislative mea-

sures has also increasingly expanded to the area of humanitarian assistance.
Despite the prohibition of punishing those who carry out medical activities
compatible with medical ethics, as set out in article 16(1) api and recognized as
a customary rule in both international and non-international armed conflicts,87
a number of States adopted counter terrorism legislation that includes provi-
sions which result in violation of this rule. For example, anti-terrorism laws
adopted in Syria in 2012 stipulate that it is illegal to provide medical aid to
persons belonging to the adversary.88 The US has also adopted legislation
which prohibits the provision of material support to terrorist organizations,
including the provision of certain medically related activities (excluding pro-
viding medications itself).89 Pursuant to these provisions, several persons were
already prosecuted and sentenced in the US courts for carrying out medical
activities.90
4.2.2 The Jurisprudence of National Courts

While measures taken by the legislative or executive branch of the government
at the national level can result in violations of States’ obligations under ihl, in
favour of security interests, the role of the judiciary is to provide a remedy and
correct such violations. National case law has an important role in determin-
ing, clarifying, and enforcing ihl rules at the national level. This role stems
from the ability of courts to conduct judicial review of acts and decisions of the
executive branch and provide authoritative instructions that further govern
the conduct of State armed forces in situations arising from armed conflict.
The Israeli Supreme Court, sitting as the High Court of Justice, for example, has
jurisdiction over actions taken by the State or its officials (including military
commanders in the Occupied Territory). This review has resulted in extensive
and unique jurisprudence on different issues in relation to the occupation.91
87 Henckaerts, Doswald-Beck, supra note 13, at 86–88.

88 UN Human Rights Council, Assault on Medical Care in Syria, A/HRC/24/CRP.2, 13 Septem-
ber 2013, para 21.
89 The ‘Antiterrorism and Effective Death Penalty Act’ of 1996 (Pub. L. No. 104-132, 110 Stat.
1214) was amended by the 18 u.s.c. to expand its list of terrorist type offenses.
90 See: D.A. Lewis, N.K. Modirzadeh, G. Blum, ‘Medical Care in Armed Conflict: Internation-
al Humanitarian Law and State Responses to Terrorism’, Harvard Law School Program on
International Law and Armed Conflict, September 2015, at 124–141.
91 E.g. Judgment, Ayyub v. Minister of Defence, hcj 606/78, Supreme Court of Israel, 1978;
Judgment, Dweikat et al., v. Government of Israel et al., hcj 390/79, Supreme Court of
Israel, 1979; Judgment, Jami’at Ascan et al., v. idf Commander in Judea and Samaria et al.,
hcj 393/82, Supreme Court of Israel, 1983; Judgment, Mara’abe et al. v Prime Minister of
Israel et al., hcj 7957/04, Supreme Court of Israel, 2009; etc.
The US Supreme Court has also had to discuss ihl rules on several occasions,
most notably when it decided the Hamdan case, where it held that the mili-
tary commissions that were set up by the President violated Common Article
3 GCs.92
Judicial review conducted by national courts is not only relevant for a case
in question, but it can have wider implications, as it can lead to a change in
the laws and policies of a State in order to align them with the applicable ihl
rules. However, depending on different circumstances and obstacles, such as
security considerations and political constraints used by States to avoid their
obligations under ihl, as mentioned above, judicial review does not always or
does not immediately result in increased compliance with ihl rules.93 For ex-
ample, it is noted that, following judicial review in Hamdan, US Congress tried
to avoid further judicial review, by passing a new set of laws with the aim to de-
prive the courts of habeas corpus jurisdiction with respect to non-US citizens
who are determined to be enemy combatants.94 Nevertheless, these new rules
were challenged before the Supreme Court in 2008, and the Court decided that
provisions limiting judicial review of decisions by the executive body regard-
ing the status of persons held at Guantanamo Bay did not provide an adequate
substitute for habeas corpus and therefore were unconstitutional.95
5 Conclusion
Whether applying de lege lata or aiming towards de lege ferenda, in order to

be recognised as a valid treaty implementation tool, each legislative measure
taken by a State should remain within the confines of the overall protection
regime of ihl. The bare minimum of this protection regime is reflected in the
fundamental ihl principles, as embedded in the ihl treaties and recognised
as a part of customary international law.96 Depending on whether the specific
92 The Court found they were not established as regular military courts in the US system
and failed to afford minimum judicial guarantees recognized as indispensable by civilized
peoples. See: Judgment, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., No. 05–184,
Supreme Court of the United States, 29 June 2006, paras. 69–70.
93 For a critical view of the Israeli Supreme Court’s decisions and their interpretation of the
law of occupation, see: Weill, supra note 86; Kretzmer, supra note 86.
94 D.A. Hass, ‘Crafting Military Commissions Post-Hamdan: The Military Commissions Act
of 2006’, 82(4) Indiana Law Journal (2007).
95 Judgment, Lakhdar Boumediene et al. v. George W. Bush et al., No. 06-1195, Supreme Court
of the United States, 12 June 2008.
96 See: Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, supra note 28,
para. 79: “These fundamental rules are to be observed by all States whether or not they
legislative measure simply implements the existing treaty law or aims to de-
velop it further, the protection regime of ihl remains within its boundaries or
it expands.
Through the creation of a web of implementing legislative measures in ac-
cordance with their obligations under ihl, States can strengthen humanitar-
ian protection during armed conflicts and, more generally, they can increase
respect for the law. However, this web of measures at times can become en-
tangled, as States take different approaches in the implementation of treaties.
In this regard, the available model laws and ratification kits on specific ihl
areas have helped in improving and unifying scattered State implementation
practices to a certain extent.97 These tools have in particular facilitated and
accelerated the process of incorporating ihl within dualist systems, by provid-
ing States with accustomed pre-texts that their national bodies can easily use
in legislating procedures.
The adoption of different international treaties dealing with ihl related is-
sues has had reinforcing effects on the protection regime of ihl. By developing
international rules regulating weapons, States further advanced compliance
with ihl rules. In particular, since some of these treaties incorporated the
rules on conduct of hostilities, such as the principles of distinction and pro-
portionality, and the prohibition of indiscriminate attacks,98 the application of
these rules was further extended to States not parties to api.99 Despite the crit-
icism that ihl has become irrelevant and out-dated, a fragmented approach in
the regulation of weapons has actually strengthened the law in this field and
improved its flexibility in responding to the ever-changing reality of armed
conflicts. It also allowed for greater transparency in treaty negotiations, as well
as for an inclusion of wider interests of the global community that ultimately
have ratified the conventions that contain them, because they constitute intransgressible
principles of international customary law”; Decision on the Defence Motion for Inter-
locutory Appeal on Jurisdiction, Prosecutor v. Tadić, icty, Appeals Chamber, para. 129:
“Principles and rules of humanitarian law reflect ‘elementary considerations of human-
ity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any
kind. No one can doubt the gravity of the acts at issue, nor the interest of the international
community in their prohibition”.
97 See for instance: icrc, ‘Model Law on the Emblems’, 2008; icrc, ‘Guiding Principles/Model
Law on the Missing’, 2009.
98 Amended Protocol ii to the ccw contains a number of rules that are identical to the rules
in api applicable to conduct of hostilities.
99 For example, while the United States did not ratify api, they did ratify Amended Proto-
col ii to the ccw, and these rules apply in international and non-international armed
conflict.
resulted in increasing the protection of persons not directly participating in

hostilities in both international and non-international armed conflicts.
In addition to national legislative measures serving as implementation
tools, a proactive approach was taken by some States’ towards the adoption of
rules going beyond the basic treaty requirements. This approach has resulted
in both positive and negative effects on the ihl protection regime. The posi-
tive effect has been the most visible in the field of criminal repression of ihl
breaches. By adopting detailed legal provisions in criminal matters, States fa-
cilitate continuously increasing national efforts to prosecute perpetrators of
ihl violations committed in armed conflicts on their territories or abroad.
The jurisdictional grounds include universal, territorial, and personal jurisdic-
tion.100 While the ad hoc tribunals and the icc are important actors through
which the international community can punish the perpetrators and deter and
prevent the gravest crimes, significant and lasting results in this field can only
be achieved through complementarity with national courts.
On the contrary, departing from their treaty obligations and enacting leg-
islative measures that are not in accordance with the fundamental ihl prin-
ciples, States not only violate their international obligations, but also erode
the very foundation of ihl. This is the case with legislative measures that are
enacted reactively and pursuant to isolated political interests of States. The
increasing number of such inconsistent legislative acts has had a weakening
effect on compliance with the law. Observed from a global perspective, this
reactive legislative approach blurs the line between humanitarian and military
needs, and generates greater inequality in the strength and scope of humani-
tarian protection afforded to individuals and objects caught in armed conflict,
which increasingly depends on arbitrary policies and practices of the State
concerned instead of the applicable rules of ihl.
While the practice of adopting national measures deviating from ihl prin-
ciples should be abandoned in toto in favour of humanitarian requirements,
bona fide developing measures could be a useful tool for responding to the
challenges of armed conflicts. To achieve this goal, however, the international
community needs to agree on a mechanism mandated to centralize, coordi-
nate, and direct such measures in the right direction – towards a unified and
coherent system which strengthens the ihl protection regime. Until then and
at a minimum, to avoid the risk of complete arbitrariness and dissonance in
the creation of rules, legislators should have the strengthening and advance-
ment of the core ihl principles as their ultimate objective.
100 Human Rights Watch, ‘These are Crimes we are Fleeing: Justice for Syria in Swedish and
German Courts’, October 2017.
The Future of the International Humanitarian
Fact-Finding Commission: A Possibility to
Overcome the Weakness of ihl Compliance
Mechanisms?
Robert Heinsch*
Abstract
Article 90 api establishes a permanent International Humanitarian Fact-Finding

Commission with the mandate to enquire into serious violations of ihl and to facili-
tate the path to compliance with ihl through its good offices. However, since the of-
ficial establishment of the competence of the Commission in 1991, it has only been
called upon once, and probably not in a way as envisaged by Article 90 api. This essay
will examine whether the Commission can, despite a lack of use in the past, contribute
to a more efficient compliance system in ihl in the future. It will elaborate upon the
nature of the Commission, and explain the mandate and procedure of this treaty body.
Furthermore, this essay will highlight its advantages and challenges, and will finally
evaluate the past, present and especially the future of this specific instrument for the
enforcement of ihl.
1 Introduction
In the last couple of years, there has been a revival of the use of fact-finding
commissions in order to verify violations of international (humanitarian) law.
This comes somewhat as a surprise, especially against the background of the
* Dr. Robert Heinsch, ll.m. is an Associate Professor of Public International Law at the Grotius
Centre for International Legal Studies of Leiden University, and the Director of its Kalshoven-
Gieskes Forum on International Humanitarian Law (www.kalshovengieskesforum.com); the
author would like to thank his former research assistant, Ms. Manuela Rüegger ll.m. for
her invaluable assistance in collecting the necessary material and preparing the first out-
line, and his PhD fellow, Ms. Sofia Poulopoulou, ll.m. for additional substantial input on
the content of this essay. This essay is dedicated to the late Professor Frits Kalshoven, one of
the first presidents of the International Humanitarian Fact-Finding Commission. The views
expressed are those of the author alone and do not necessarily reflect the views of any insti-
tution the author is affiliated with.

80 Heinsch
growing institutionalisation of the judicial system dealing with grave breaches

and other serious violations of ihl, as exemplified by the icty, the ictr,
the icc, and the recent establishment of the Kosovo Specialist Chambers.
Compared to these judicial mechanisms, international fact-finding commis-
sions can be described as a rather “soft” way of ensuring compliance with ihl.
Originally, the 1949 GCs1 foresaw several mechanisms to ensure that States
did not violate ihl. These instruments included the concepts of protecting
powers, the enquiry procedure, meetings of High Contracting Parties, and es-
pecially the system of grave breaches. The latter placed the responsibility for
either prosecuting or extraditing possible war criminals on the State parties to
the 1949 GCs. As described in detail elsewhere, the system of graves breach-
es was not as successful as expected, with only few States implementing the
necessary legislation after the ratification of the 1949 GCs. Therefore, a new
mechanism, which was supposed to enhance compliance with ihl, was intro-
duced. The signing of the 1977 api2 introduced another possibility for ensuring
compliance with ihl, namely the “International (Humanitarian) Fact-Finding
Commission” (Commission or ihffc) under Article 90 api.
This came at a time when the grave breaches regime, as introduced by the
1949 GCs, had proven that leaving the prosecution of war crimes only to the
national jurisdictions of the Member States was not as successful as antici-
pated. Since establishing an international court or an international monitor-
ing system for ihl violations was not realistic at this time, the idea was that
sending a commission of 15 experts of “high moral standing and acknowledged
impartiality”, in order to “enquire into any facts alleged to be a grave breach as
defined in the Conventions and this Protocol or other serious violations of the
Conventions or of this Protocol”3 and to “facilitate, through its good offices, the
restoration of an attitude of respect for the Conventions and this Protocol”,4
would bring the parties (back) to the path of compliance with ihl. As will be
shown in the course of this essay, this approach was not immediately followed
2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of International Armed Conflicts (1977) 1125 unts 3 (entered into force 8 June
1977).
3 Article 90(2)(c)(i) api.
4 Article 90(2)(c)(ii) api.
The Future of the ihffc 81
by a rapid implementation in practice. Rather, the ihffc under Article 90 api

came to be described as a “Sleeping Beauty”.5
Before international fact-finding commissions became more popular in the
area of ihl, the regime of grave breaches – although not very successful in the
original sense of allowing for prosecutions on a national level – was further
developed during the last 25 years. This took place as part of the current in-
ternational criminal justice system in the form of the systematic prosecution
of war crimes. In this regard, the enforcement of ihl seems to have become
prima facie more successful in view of the increased number of international
and national courts and tribunals, prosecuting war crimes and conducting tri-
als with regard to violations of ihl. However, one has to admit that these war
crimes prosecutions only affect the tip of the iceberg. On the one hand, the
prosecution of war crimes by definition covers only a limited number of ihl
violations, namely the grave breaches of Geneva Law as well as other serious
violations, especially of Hague Law provisions. On the other hand, due to the
still developing stages of both the international as well as the national criminal
justice system, these prosecutions are rather selective and often limited by the
restrictive jurisdiction of the international (ad hoc) tribunals.
In this regard, one must come to the conclusion that – as in other areas of
international law – one of the biggest challenges for ihl today is still to achieve
an efficient enforcement and compliance system for its legal regime. While the
substantial rules governing both international and non-international armed
conflicts have become more and more detailed and sophisticated, it is prob-
ably truer today than ever to question whether there is an adequate system
ensuring and monitoring compliance with these rules. This is especially valid
if one compares the ihl compliance system with the regime governing human
rights compliance, which on both the international as well as the regional and
national level seems to offer more ways (also for individuals) to seek enforce-
ment of its legal regime.
Although Article 90 api provided for a permanent humanitarian fact-
finding commission, it took until 20 November 1991 for the 20 declarations
to be reached in order to set up the commission, and until 18 May 2017 for
the ihffc to receive its first mandate.6 In this regard, there were other bodies
5 F. Kalshoven, ‘The International Humanitarian Fact-Finding Commission: A Sleeping

Beauty?’ 4 Humanitäres Völkerrecht – Informationsschriften (2002), at 213–216.
6 ihffc, ‘International Humanitarian Fact-Finding Commission to Lead an Independent
Forensic Examination in Eastern Ukraine (Luhansk Province)’, 19 May 2017; see also:
C. Azzarello, M. Niederhauser, ‘The Independent Humanitarian Fact-Finding Commission: Has
82 Heinsch
outside the system of the GCs which seem to have taken over the lead in es-
tablishing fact-finding commissions in situations where a judicial treatment
of possible ihl violations was not possible. Overall, it is sufficient to mention
at this point that other fact-finding missions have been established within the
UN-system, but that it is questionable whether they have managed to achieve
what they were intended for. One example is the Human Rights Council which,
since its establishment in 2006, has created quite a number of commissions
of inquiry.7 In comparison with the original idea of fact-finding commissions,
namely to “find facts”, some commentators associate a strong legal dimension
to the commissions established by the Human Rights Council.8 This is also
problematic because the investigation of ihl violations does not belong to the
core mandate of the Human Rights Council, and therefore the composition
of these commissions might not always reflect the necessary ihl specialisa-
tion. Therefore, one could conclude that even after the establishment of vari-
ous other fact-finding commissions, there still should be room for a pivotal
role for the ihffc with regard to ensuring compliance with ihl in the current
international legal order.
This essay will examine whether the ihffc, as envisaged in Article 90 api,
can contribute to a more efficient system of compliance with ihl. It will elabo-
rate upon the nature of the ihffc and explain the mandate and procedure of
this treaty body. Furthermore, this essay will highlight its advantages and chal-
lenges and, finally, it will evaluate the past, present, and especially the future
of this specific instrument.
2 Main Problems Surrounding the Mandate of the ihffc
In the following, the four main problems surrounding the most important fea-
tures and especially the mechanism that triggers the mandate of the ihffc
shall be described in order to evaluate the advantages and disadvantages of
the Commission.
the “Sleeping Beauty” Awoken?’ Humanitarian Law and Policy Blog, 9 January 2018, available
at: http://blogs.icrc.org/law-and-policy/2018/01/09/the-independent-humanitarian-fact-find
ing-commission-has-the-sleeping-beauty-awoken/.
7 L. van den Herik, ‘An Inquiry into the Role of Commissions of Inquiry in International Law:
Navigating the Tensions between Fact-Finding and Application of International Law’, 13(3)
Chinese Journal of International Law (2014), at 507.
8 Ibid.
2.1 Request of an Enquiry Only by a Consenting State/Party to the

Conflict
The question as to who can request an enquiry is crucial in order to under-
stand why the ihffc has rarely been used since its entry into force in 1991.
Article 90(2) api foresees two possibilities concerning the start of proceed-
ings by the ihffc. First, according to subparagraph (a), the High Contracting
Parties can submit an ipso facto declaration establishing the competence of
the Commission to enquire in relation to any other State which has made the
same declaration. As a result, if two States have made an Article 90 Declara-
tion, a right to inquire follows. However, for practical reasons – especially the
fact that there is no enforcement unit connected to the ihffc – consent is
also required in this situation. Second, according to Article 90(2)(d) api, the
Commission “shall institute proceedings at the request of a Party to the con-
flict only with the consent of the other Party or Parties concerned”. It follows
from this system that the competence of the ihffc can either be triggered by a
comprehensive declaration which can be made when signing, ratifying, or ac-
ceding to api, at any subsequent time, or via ad hoc consent, which allows also
for temporary consent for a specific situation. This bears a strong similarity to
the system laid down in Article 36 of the icj Statute. Consequently, only those
States that commit themselves in advance are obliged to accept the enquiry.9
In contrast to the standing submission to the competence of the Commis-
sion, as regulated in subparagraph 2(a), Article 90(2)(d) api provides for an
ad hoc request of an enquiry: “[i]n other situations, the Commission shall in-
stitute an enquiry at the request of a Party to the conflict only with the consent
of the other Party or Parties concerned”.10 Under this alternative, the request of
the enquiry is restricted to a party to the conflict and subject to the consent
of the other party or parties concerned. There is no requirement for the party
to the conflict, requesting an enquiry under subparagraph 2(d), to have ratified
api.11 With regard to both options, it is important that the drafters of Article
90 api envisaged that the States concerned (i.e. High Contracting Parties in
the case of Article 90(2)(a) api) would give their consent before an inquiry
by the ihffc could be institutionalised. We will see, however, that the option
mentioned in Article 90(2)(d) api of a request of a “Party” (i.e. not necessar-
ily a State) to the conflict, can be used in order to circumvent this traditional

10 Article 90(2)(d) api.
11 1987 icrc Commentary api, at 1046: “[…] This means that any Party to an international
armed conflict, even if it is not a Party to the Protocol, may approach the Commission
regarding an allegation of a grave breach or serious violation of the Conventions, which
adds to the significance of the creation of the Commission”.
84 Heinsch
consent requirement, which tried to accommodate the importance of State

sovereignty at the time of drafting.
As the past 40 years have shown, the ihffc seems not to have really been
able to persuade States of its benefits, because, until 18 May 2017, the Com-
mission never received a mandate.12 Even when the Commission finally did,
it was not coming from an api Member State, but from an international in-
stitution: the osce.13 Instead, as has been mentioned above, independent ad
hoc commissions of inquiry have been set up rather than assigning the task
to the ihffc. An interesting aspect of these ad hoc commissions is that there
have been examples where certain members of the ihffc were called upon to
become part of such an ad hoc commission. These “[c]ommissioners [acted]
within the mandate of the particular organisation concerned, not as Commis-
sion members”.14
2.2 Mandate Only for International Armed Conflicts?

While the question as to who can request an enquiry reveals the State-centred
approach that was taken when drafting the APs in 1977, the issue of which
area of competence the ihffc actually has, touches equally on the aspect of
how much the Commission is allowed to interfere with internal matters of
sovereign States. According to Article 90(2)(c) api, the ihffc has two main
areas of competence: “[t]he Commission shall be competent to: (i) enquire
into any facts alleged to be a grave breach as defined in the Conventions and
this Protocol or other serious violation of the Conventions or of this Protocol”;
and “(ii) facilitate, through its good offices, the restoration of an attitude of
respect for the Conventions and this Protocol”.15 The wording of subparagraph
(c) seems to indicate, and support the assumption that, its first branch of
competence, namely the enquiry into grave breaches of ihl, is limited to the
area of international armed conflict (and thereby omitting non-international
armed conflicts which would touch much more upon the sovereignty of the
affected State). This becomes clear in view of the fact that the grave breaches
regime has been explicitly limited to this type of conflict since its insertion in
the 1949 GCs.
12 ihffc, supra note 6.

13 The result of the first official fact-finding commission can be found in a one-page execu-
tive summary, published here: http://www.osce.org/home/338361.
14 C. Garraway, ‘The International Humanitarian Fact-Finding Commission’, 34(4) Com-
monwealth Law Bulletin (2008), at 815.
15 Article 90(2)(c), (d) api.
However, Kalshoven (and the Commission as such) has always read the
jurisdiction of the ihffc widely and held that “[t]he Commission […] has al-
most from day one declared itself ready to carry out its functions in situations
of internal armed conflict as well”.16 This argument can be made on the basis of
the wording of Article 90(2)(c)(i) api, which refers to “other serious violation
of the Conventions or of this Protocol”. This could include violations of Com-
mon Article 3 to the 1949 GCs, which covers non-international armed conflicts.
This interpretation is further supported by the fact that, nowadays, the term
“other serious violations” of ihl is equally used with regard to war crimes com-
mitted in non-international armed conflicts by, for example, Article 8(2)(e) of
the icc Statute.17 However, it may be questioned whether the drafters indeed
wanted to confer such a power to the ihffc in 1977, considering that, at the
time, the existence of war crimes in non-international armed conflict was de-
nied by the majority of scholars. In this regard, Harwood recently put forward
and confirmed a narrow interpretation that
the rules on ad hoc jurisdiction and applicable law remain part and par-
cel of api, which as a whole only applies in iacs. There is also a paucity of
state practice to support a possible extension to the ihffc’s jurisdiction
on the basis of customary ihl.18
This view seems prima facie to be supported by the fact that Article 90 api does
not mention apii19 in the clause on competence of Article 90(2)(c) and (d),
which indeed is seen by some authors as supporting the interpretation that the
ihffc is not competent in non-international armed conflicts.20
However, the structure of Article 90(2)(a) and (d) api also reveals that the
enquiries envisaged to be conducted by the ihffc are very much determined
16 Kalshoven, supra note 5, at 837.

17 Rome Statute of the International Criminal Court (1998) 2187 unts 90 (entry into force 1
July 2002).
18 C. Harwood, ‘Will the “Sleeping Beauty” Awaken? The Kunduz Hospital Attack and the
International Humanitarian Fact-Finding Commission’, ejil: Talk!, 15 October 2015, avail-
able at: https://www.ejiltalk.org/will-the-sleeping-beauty-awaken-the-kunduz-hospital
-attack-and-the-international-humanitarian-fact-finding-commission/.
19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Pro-
tection of Victims of Non-International Armed Conflicts (1977) 1125 unts 609 (entry into
force 7 December 1978).
20 Condorelli, ‘La Commission Internationale Humanitaire d’Etablissement des Faits: un
Outil Obsolète ou un Moyen Utile de Mise en OEuvre du Droit International Humani-
taire?’ 83(842) IRRC (2001), at 397.
86 Heinsch
by the consent given by the parties involved in the conflict. Therefore, it seems
more than reasonable (and since May 2017 also confirmed by State practice) to
concur with Frits Kalshoven when he stated that “the scope of applicable law
need not be restricted to ‘the conventions and this Protocol’ and may effectively
encompass the entire field of ihl, again, provided the parties accept such an
extension”.21 The interpretation that the ihffc can also investigate facts in a
non-international armed conflict seems now also to have been endorsed by
the recent conclusion of the investigation mission in Eastern Ukraine.
2.3 Finding the Balance between Fact-Finding, Legal Evaluation, and the
Offering of Good Offices
Another important aspect to be highlighted is that the ihffc is not a judicial
body. The Commission is only supposed to establish facts and to give recom-
mendations, as provided in Article 90(5)(a) api, not to conduct a legal evalu-
ation. A similar approach may be found in Article 13(1) of the Convention on
the Elimination of all Forms of Racial Discrimination.22 In this context, it has
been observed that the “ihffc actively promotes the fact that its findings stop
short of legal statements”, since its competence would have to be significantly
expanded if conflict characterisation were to be incorporated.23 This balanc-
ing act between fact-finding, on the one hand, and legal characterisation, on
the other hand, is probably one of the greatest challenges for the ihffc and
might be one of the reasons why States have been reluctant to make use of this
institution. There is a thin line between dividing the finding of facts from a
legal evaluation, especially when the competence is supposed to look at facts
which have resulted in alleged ihl violations. As Boutrouche correctly con-
cluded: “[…] one can assume that it is virtually impossible to exclude all legal
considerations from the fact-finding process because of the inherent influence
of the law over facts”.24
And indeed, in order to confirm its own competence over “grave breaches”
and “other serious violations”, the Commission necessarily needs to con-
sider legal aspects as well. It might be that the difficulties concerning the
21 Kalshoven, supra note 5, at 837.

22 As pointed out by E. Kussbach, ‘The International Humanitarian Fact-Finding Commis-
sion’, 43 International and Comparative Law Quarterly (1994), at 179.
23 A. Yuile, ‘At the Fault-Lines of Armed Conflict: The 2006 Israel-Hezbollah Conflict and the
Framework of International Humanitarian Law’, 16 Australian International Law Journal
(2009), at 212.
24 T. Boutruche, ‘Credible Fact-Finding and Allegations of International Humanitarian Law
Violations: Challenges in Theory and Practice’, 16(105) Journal of Conflict & Security Law
(2011), at 111.
competence of the ihffc, and especially the requirement of either perma-

nent or ad hoc consent by the parties concerned, can lead to the creation of
separate ad hoc fact-finding bodies. As put by Harwood in the context of the
Kunduz hospital attack:
An alternative approach which would avoid those jurisdictional hurdles,

and which might allay the concerns […], would be for the states to agree
to establish an international fact-finding commission composed of well-
respected ihl experts, such as those individuals serving as Commission-
ers of the ihffc, without invoking the formal credentials of that body.25
Further problematic issues concerning the competence of the ihffc include

the noteworthy absence of Article 90 Declarations from the US, France, China,
Israel, and India, which leaves gaps with regard to important possible actors
in the area of ihl. Apart from the lack of declarations from certain military
superpowers (some of which have not ratified the APs either), an additional
problem with regard to the ihffc in modern conflict situations is the afore-
mentioned ambiguity concerning the question of whether the competence
also covers non-international armed conflicts. The possibility of an expansive
interpretation extending to non-international armed conflicts could make
Member States hesitant to submit situations of non-international armed con-
flict to the ihffc. This highlights the problem that the Commission will not
really be effective as long as the States involved do not give their consent and
refer the respective incident to the competence of the Commission.26
A question that has arisen in the past is whether the competence of the
Commission to offer good offices, as laid down in Article 90(2)(c)(ii) api, is
independent from the enquiry procedure of subparagraph 2(c)(i). The struc-
ture of Article 90(2) api seems to speak in favour of the separation of these
two competences. Therefore, it has been argued that the offering of its good
services is a special competence, which gives the Commission the power to
offer its good offices independently from the official request of an enquiry.27
This interpretation falls in line with the approach that has been followed by
the Commission itself. It has clarified multiple times that it is able to conduct
25 Harwood, supra note 18.

26 G. Bartolini, ‘Strengthening Compliance with International Humanitarian Law: The
Failed Proposal for a Meeting of States on International Humanitarian Law’, 25 The Italian
Yearbook of International Law (2015), at 205.
27 Kussbach, supra note 22, at 179.
88 Heinsch
its good services not only on the initiative of the High Contracting Parties, the
parties to the Conflict, but also on its own initiative.28
2.4 Composition, Procedure and Confidentiality of the Reports

When a complaint is initiated, the enquiry by the ihffc is to be conducted,
unless the parties otherwise agree, by a chamber of seven members. Five mem-
bers, not nationals of any party to the conflict, should be appointed by the
President of the Commission on the basis of equitable geographical represen-
tation, after consultation with the parties to the conflict. Two ad hoc members,
again not nationals of any party to the conflict, are to be appointed by each
side. The chamber has the task to invite the parties to the conflict to assist it in
its enquiry and to present evidence. It may seek other evidence as it considers
appropriate and may carry out an investigation of the situation on the ground.
The chamber should fully disclose all evidence to the parties which have the
right to comment on it and challenge it.
The Commission itself submits a report on its findings to the parties, along
with such recommendations, as it may consider appropriate. The icrc Com-
mentary describes the recommendations that could be issued by the Commis-
sion as a “first step towards mediation”.29 The Commission may not report its
findings publicly, unless all the parties to the conflict agree.30 In this context, it
has been noted that, if a Chamber is unable to secure sufficient evidence, this
“might well be embarrassing for the party or parties to the conflict, in that it
may show their lack of willingness to co-operate with the Chamber” and that
such “an attitude could be interpreted as a sign of bad conscience”.31 However,
since the report will mainly be dealt with confidentially, the risk that the par-
ties to the conflict will openly have to admit that they did not supply the Com-
mission with enough access to possible evidence is rather limited. This secrecy
is one of the major downfalls undermining the impact that the Commission
could have on the prevention of further violations of ihl, since it is hard to
imagine that States are going to change their behaviour as a result of a report,
if that report is not going to be published.
Confidentiality does not allow for an appeal to the public to exert pres-
sure and enforce the respect of the recommendations made. In this connec-
tion, even the icrc, otherwise very strict as concerns the confidentiality of its
28 ihffc, ‘Good Offices’, October 2005, at 2–3.

30 ihffc, ‘The ihffc in a Few Words’, available at http://www.ihffc.org/index.asp?page=
aboutus_general.
interventions, has reserved its right to make public statements in certain cases
of violations of ihl. The icrc, in particular, uses this right in the following
circumstances: if the violations are grave and have been committed repeat-
edly, if the confidential interventions were not effective, if publicity serves the
interest of the people or the population as a whole, if a delegate of the icrc
personally has become a witness of the violation, or if the existence and the
scope of violations have been proved.32 The confidentiality of the final report,
which has been described as one of the advantages of the ihffc, also entails
pitfalls. The obligation of confidentiality on the part of the Commission does
not preclude one or both of the parties from publishing the report on their
own accord. The consequence of such a (one-sided) publication undoubtedly
involves some risks. This could include, for example, the possibility that the
respective parties affected do not publish the complete report, but only those
parts favourable to them.33 This would obviously constitute legal abuse and
would likely have the consequence that the Commission will have to publish
the entire report in order to avoid a one-sided interpretation of its findings and
recommendations.34
3 The Future of the ihffc
While the establishment of a fact-finding body within the system of ihl might
have been a promising initiative when the APs were signed 40 years ago, reality
until now has painted a different picture. In the 25 years of the Commission’s
existence, it has never been used as originally conceived, namely by State con-
sent. However, it has “almost” been used several times. As Garraway, one of the
past Commissioners, has reported: “[…] the Commission has offered its services
and its good offices in a number of situations and delicate negotiations have
taken place with various parties. However, none of these initiatives have come
to fruition although they continue”.35 As mentioned above, the Commission
finally received its first mandate in May 2017, when the Commission signed
a memorandum of understanding with the osce, which requested the Com-
mission to lead an independent forensic examination in an event which took
place in Eastern Ukraine.36
32 Kussbach, supra note 22, at 180–181.

33 Ibid, at 180.
34 Ibid.
35 Garraway, supra note 14, at 815.
36 ihffc, supra note 6; see also: Azzarello, Niederhauser, supra note 6.
90 Heinsch
Some of the recent developments in modern conflict situations, including

for example the Kunduz province hospital bombing,37 have shown that, de-
spite ample opportunity to give the Commission a mandate, such a result has
not been achieved. Especially the fact that the classification of a conflict as
non-international originally seemed to preclude the ihffc’s jurisdiction has
been seen as a strong obstacle for the future use of the Commission, since the
majority of conflicts are of a non-international character nowadays. This would
include situations like the one in Afghanistan in which the Kunduz hospital at-
tack appeared. Although the involvement of the Taliban and their respective
territorial control could lead to a classification as a non-international armed
conflict as regulated by apii, this would nevertheless be problematic. The rea-
son for this is that the type of conflict is not explicitly mentioned in the ap-
plicability clause of Article 90 api (in contrast to international armed conflict)
and is therefore widely seen as being excluded. Other situations where the
ihffc was supposedly considered include Colombia, the Balkans, and Dar-
fur.38 With regard to the latter situation, the “Cassese Commission of Inquiry”
was established pursuant to the unsc Resolution 1564 (2004), which avoided
the requirement of the consent of the affected State, and circumvented the
problem that it was dealing with a non-international armed conflict.
The problem of the lack of consent of one of the involved parties to the
conflict was also exemplified by the 2006 Lebanon conflict,39 where the lack
of Israeli cooperation did not allow detailed inquiries about the manner in
which humanitarian issues were taken into account on their side. One of the
most pressing problems is that the (visible) results on the ground only pres-
ent part of the facts and it is often necessary to make resort to confidential
intelligence reports that explain the targeting decisions. However, for obvious
reasons, States are more than reluctant to provide this information since, for
instance, sources could be put at risk and information could be leaked to the
enemy. Thus, while the appointment of inquiry commissions by the unsc or
the ohchr circumvents the requirement of consent required by Article 90
api, it has another unfortunate side-effect. As Van den Herik explains: “even
if identical in name, contemporary human rights commissions of inquiry are
fundamentally different from their ancestors. Where traditional commissions
of inquiry aimed to conciliate and pacify, contemporary human rights com-
missions rather condemn and provoke”.40 This difference might especially be
37 Harwood, supra note 18.

38 Garraway, supra note 14, at 814–815.
39 Ibid, at 815.
40 Van den Herik, supra note 7, at 537.
grounded in the link of these commissions to the human rights system instead
of being part and parcel of the ihl treaty mechanism.
It seems that, with regard to fact-finding mechanisms, there is a dilemma,
no matter from which side one approaches the idea of investigating alleged
violations of ihl. Inquiry commissions established under ihrl may encoun-
ter harsh criticism from the parties concerned and are not always equipped
with the necessary ihl expertise. The ihffc, on the other hand, can only in-
vestigate a conflict with the consent of both parties and, even if this condition
is achieved, the result will not be published. This begs the question of whether
the outcome of the investigation can be used “in order to make diplomatic
or judicial decision concerning a party’s legal culpability”.41 Finally, until now,
only 76 States have submitted a declaration accepting the competence of the
ihffc, which leads to the unfortunate reality that it could not investigate al-
most 60 percent of countries of the world.42
As has been shown above, the rather strict requirement of State consent
prior to starting an investigation could potentially prevent the regular use of
the Commission also in the future. However, such a pessimistic outlook does
not need to materialise. As the recent use of the Commission by the osce in
Eastern Ukraine has demonstrated, there is room for using this institution in
situations related to armed conflict, even if a State party to the conflict has
not given its consent. This first mandate arose from the following situation.43
On 23 April 2015, an explosion took place in an area in Eastern Ukraine, which
severely damaged an armoured vehicle belonging to the osce’s Special Moni-
toring Mission (smm). One of the passengers was killed, the two others were
wounded. On 18 May 2017, a memorandum of understanding was signed be-
tween the Secretary General of the osce and the President of the Commis-
sion, Thilo Marauhn, and they agreed that the Commission would lead an
independent investigation. As a consequence, an Independent Forensic Inves-
tigation (ifi) was put together and sent to Eastern Ukraine by the ihffc. The
full report of the investigation was only made available to the osce, while the
Executive Summary44 of the ifi’s report was published on 7 September 2017,
one day after the passing of Frits Kalshoven, one of the first presidents of the
41 T.B. Musselmann, ‘Skirmishing for Information: The Flaws of the International Legal Sys-
tem as Evidenced by the Russian-Georgian Conflict of 2008’, 19(317) Transnational Law &
Contemporary Problems (2010), at 346.
42 Ibid.
43 For more detailed background information, see: Azzarello, Niederhauser, supra note 6.
44 Executive Summary of the Report of the Independent Forensic Investigation in relation
to the Incident affecting an osce Special Monitoring Mission to Ukraine (smm) Patrol on
23 April 2017, available at http://www.osce.org/home/338361?download=true.
92 Heinsch
Commission. The ifi came to the conclusion that the anti-tank mine was not
specifically aimed at this particular osce vehicle on the basis that the road
was not on the convoy's normal route and had not been planned in advance.45
However, the report stated that any laying of anti-vehicle mines on that road
would have to be considered as a violation of ihl, because of the potentially
indiscriminate damage which could be caused by these weapons.46
The interesting question raised by this first mandate of the ihffc is: what
was the legal basis for the Commission’s inquiry? Ukraine had accepted the
competence of the Commission under Article 90(2)(a) api, and one could as-
sume that the Commission therefore acted under Article 90(2)(c)(i) api, if one
presupposes that the request for this does not necessarily need to come from
the (State) parties involved, and we agree that this article also covers situations
in non-international armed conflicts as discussed above. This, however, seems
problematic, as the requirement of Article 90(2)(a) api is that the acceptance
of the competence needs to come from a High Contracting Party (i.e. a State
entity), and even though Ukraine is part of the osce, it seems doubtful wheth-
er this possibility was envisaged by the drafters. This seems to be the reason
why Azzarello and Niederhauser conclude that the basis for the Commission’s
investigation must have been Article 90(2)(d) api (“in other situations”).47
This, however, seems to overlook the requirement that, according to this provi-
sion, all parties concerned need to consent to the inquiry. Thus, it seems much
more plausible that the basis for this first mandate of the ihffc is to be found
in Article 90(2)(c)(ii) api, namely to facilitate through its good offices an at-
titude of respect for the GCs and api. It is the author’s opinion that this legal
basis for the actions of the Commission will be the most fruitful starting point
for future fact-finding missions.
Apart from the new approach of having an international organisation
prompting the mandate of the Commission, the ihffc could increase its
focus on its good offices function48 while monitoring potential situations, and
then “approach quietly and privately” the parties concerned. Similarly, the
ihffc has itself indicated that it will make sure that “the possibility to offer
its good offices is not left to ad hoc improvisation”.49 In order to be able to
react quickly to upcoming crisis situations, it would indeed make sense that
45 Ibid.
46 Ibid.
47 Azzarello, Niederhauser, supra note 6.
49 ihffc, ‘Report on the Work of the International Humanitarian Commission Fact-Finding
Commission’, 29 May 2006, at 18–19.
the Commission will keep “current or nascent conflicts […] systematically […]
under review by an early warning unit to be established within the Secretariat
of the Commission”, which would enable the Commission to offer its services
swiftly wherever it is appropriate.50 As the cooperation with the osce in May
2017 has shown, it also seems advisable to continue to offer its good offices
in cases where members of international organisations are involved in armed
conflict or violence.
But there are more advantages of the ihffc that could be decisive for the
further use of the Commission in future conflict situations. One of the biggest
advantages of the Commission, especially compared to the inquiry commis-
sions set up by the Human Rights Council, is its legitimacy. The Commission
is a permanent treaty body with international recognition and mandate. The
Member States themselves have defined and elaborated its competence and
procedure and should therefore support it. Another advantage is its efficiency,
since any enquiry should be carried out with a low-key and confidential
approach. Furthermore, the confidentiality of the report, as provided for in
Article 90(5)(c) api, in the end has to be seen as an advantage, because it could
motivate States to accept the competence of the Commission.
Moreover, the fact that the ihffc is a permanent body and not an ad hoc
institution must be considered to be an advantage, since it is “much less sus-
ceptible to political interference or influence”, if it were to be used on a regular
and continuous basis.51 Finally, the combination of having neutral, indepen-
dent, and diverse Commissioners, together with the ihffc’s detailed rules
of procedure, should, in theory, guarantee fair and thorough proceedings in
which the rights of the parties are respected.52 Also, the inclusion of military
experts is usually seen as an important benefit, given the armed conflict cir-
cumstances in which the Commission has to operate.53 This advantage must
especially be highlighted in the context of the composition of some of the
fact-finding commissions which have been established by the Human Rights
Council. In addition, the Commission is neither supposed to state the law, nor
to establish individual criminal responsibility (if not so demanded by the par-
ties). This is an advantage as well, since it should attract States to use the Com-
mission in order to find solutions that are not offered by other – especially
50 Ibid.
51 Ibid, at 183.
52 Ibid.
53 Musselmann, supra note 41, at 346.
94 Heinsch
judicial – institutions.54 In this regard, at least in theory, the ihffc offers a

service that is neither covered by the UN, the icrc, or protecting powers.55
Another important idea is to further expand the Commission’s capabilities
and infrastructure, which could include more training for the Commissioners,
and to raise the profile of the ihffc by more publicity in general. This could
include frequent references to its existence during international fora, confer-
ences and meetings. Furthermore, it seems to be crucial to make States aware
that a separate declaration is needed for Article 90 api and that ratifying api
is not enough.56 The ihffc has also indicated that dissemination activities
should stress the specific comparative advantage that the ihffc represents for
States, such as the possibility to establish dialogues between the Commission
and other institutions, its cooperation with other national ihl commissions,
and its commitment to obtain observer status with international institutions
that play important roles for the work of the Commission. Similar recommen-
dations have been put forward in the 2010 report of the ihffc,57 which states
that “[t]he establishment of a ‘group of friends’ or a like arrangement would
be a helpful step in this direction”.58 The fact that the outreach of the Com-
mission to other institutions has partly been successful can be seen by the fact
that the European Council of the European Union made a cross-reference to
the ihffc in Article 15(a) of its “Updated European Union Guidelines on Pro-
moting Compliance with International Humanitarian Law”.59 Furthermore, it
is remarkable that the Council Presidency has urged all UN Member States
that have not ratified the APs to do so and to accept the competence of the
ihffc.60
Furthermore, if the ihffc was more frequently used by UN institutions,
especially by the unsc acting under Chapter vii of the UN Charter, this would
prevent the invocation of the missing consent of parties to the conflict due to
Article 103 of the UN Charter: “[i]f the Commission initiates an enquiry upon
request of the Unites Nations in such a case, the parties concerned could not
54 ihffc, ‘Report on the Work of the ihffc on the Occasion of its 20th Anniversary’,
February 2011, at 28.
55 D. Fleck, ‘Die Internationale Ermittlungskommission: Probleme und Perspektiven einer
neuen Einrichtung des Humanitären Völkerrechts’, in Schottler/Hoffmann (coords.), Die
Genfer Zusatzprotokolle: Kommentare und Analysen (1993), at 259.
57 ihffc, supra note 54, at 28–30.
58 Ibid, at 29.
59 European Council, ‘Updated European Union Guidelines on Promoting Compliance with
International Humanitarian Law (ihl)’, OJ C303/12, 15 December 2009, at 398.
60 Ibid, at 399.
object to that initiative on the basis of Article 90”.61 The use of the ihffc by
other international institutions would avoid creating costly new institutions
on an ad hoc basis, since the Commission as a permanent body already exists
for the same purpose.62 In the end, this would be the same argument as the
idea that eventually led to the creation of the icc. In this regard, it would also
make sense if the unga would send a message to urge States which have not
yet done so to submit a declaration under Article 90(2)(a) api.63
4 Conclusion
As illustrated in this essay, the ihffc, as envisaged in Article 90 api, was cre-
ated with great ambition during the Cold War, but, in many ways, could for a
long time not live up to the expectation to serve as an effective compliance
mechanism within the system of the 1949 GCs. One of the main reasons is the
role that State consent plays in the establishment of the Commission and the
complex procedure to start enquiries. As raised previously by other commen-
tators, Article 90 api was initially intended to provide for the setting-up of a
permanent enquiry mechanism, but it ended up almost as a provision “devoid
of practical use”.64 While one could get the impression that the detailed proce-
dure for setting up and engaging the Commission might have prevented States
from resorting to it, this would neglect the fact that the procedure to trigger the
competence of the ihffc is not so different from the triggering mechanism of
the icj, as laid down in Article 36 icj Statute. The uncomfortable truth seems
to be that the main obstacle for the success of the ihffc has been the fact that
States are not willing to give either advance or ad hoc consent to fact-finding
missions when it comes to issues connected to armed conflict and possible vio-
lations of ihl. Therefore, the main reason why other fact-finding and inquiry
missions have been set up in the last couple of years was that the creation of
these commissions were independent from (and sometimes against) the will
of sovereign States.
As demonstrated by the growing number of international (criminal)
courts and tribunals dealing with violations of ihl, the two most successful
approaches in setting up an effective justice mechanism was either by an ad

62 Ibid.
63 Fleck, supra note 55, at 259; Garraway, supra note 14, at 262.
64 A. Mokhtar, ‘Will This Mummification Saga Come to an End? The International Humani-
tarian Fact-Finding Commission: Article 90 of Protocol 1’, 22(2) Penn State International
Law Review (2003), at 309–311.
96 Heinsch
hoc measure of the unsc, like in the case of the icty or ictr, or by estab-
lishing a permanent icc, with a pre-established agreement on the jurisdiction
which does not have to be agreed upon by States once the respective conflict is
being investigated. Other mixed tribunals which were often established by an
agreement between the UN and the affected State, usually only came into be-
ing because the government which was responsible for possible ihl violations
was removed from power. The major deficiency of Article 90 api is clearly the
requirement that, even in case of a State having submitted a declaration, the
parties concerned must give ad hoc consent for every new enquiry initiative.
Despite the experience of the last 40 years and the arguments against over-
coming the obstacle of State consent, there is still some (newly regained)
hope that, in the future, the Commission will be activated. In order to further
proceed into this direction, it seems advisable that the Commission should
continue to offer its good offices not only to States, but also to international
organizations. As highlighted by Mokhtar, “the offering and performance of
good offices should not be confined to the parties to the Protocol and the
Conventions”.65 In this context it might be advisable that the offering and per-
forming of good offices is limited to serious violations and international armed
conflict.66
In many ways, the ihffc is a child of the Cold War and has its origins in
a time when State sovereignty clearly was the dominating principle in inter-
national law. The last 25 years, which have witnessed the rise of international
criminal justice, seem to have – at least partly – overcome this limiting factor
in investigating and prosecuting ihl violations, as long as they amount to war
crimes. However, the international criminal justice system is far from perfect
and far from universal. The number of ad hoc international criminal tribunals,
set up by either the unsc or by bilateral agreements between the UN and the
affected State, will rather decrease than increase. And the icc with currently
125 States parties, is far from being able to investigate graves breaches or other
serious ihl violations in all conflict situations of the world.
In this regard, there remains room for a “soft” approach of investigating
situations of possible ihl violations, as reflected by the ihffc. In order to
achieve a more relevant role in the international community, it needs to fur-
ther increase its level of activity in diverse international fora. It might be a
good idea for the Commission to convene more conferences and public events,
in order to clarify its competence and emphasise the benefits to be gained from
its acceptance. This could possibly convince more and more States to accept
65 Ibid, at 309–311.
66 Ibid.
the Commission’s competence. Especially after the successful example of the

investigation mission in Eastern Ukraine in spring 2017, it looks as if the “Sleep-
ing Beauty” has awoken. Therefore, the Commission now has the chance to go
beyond being dead letter law, as originally predicted by the Syrian delegate in
the 1977 Diplomatic Conference,67 but rather could find its place in the impor-
tant area of ensuring compliance with ihl. The ihl community should hope
that the latter tendency prevails, building upon the success demonstrated by
its first official investigation in Eastern Ukraine in May 2017.
67 Ibid, at 309–311.
The Role of United Nations Commissions of
Inquiry in the Implementation of ihl: Potential
and Challenges
Théo Boutruche*
Abstract
The number of Commissions of Inquiry (CoI or CoIs), especially those established by

the UN, has increased significantly over the last years. Such bodies may refer to and
apply various norms of ihl. Based on examples derived from the practice of different
CoIs, this contribution considers how they may strengthen respect for this body of law.
This may be achieved by elucidating allegations of violations, addressing controversial
behaviour on the battlefield, clarifying the contents and interpretation of norms, and
providing a basis for criminal prosecutions. However, significant challenges stand in
the way of realising this potential, including one-sided mandates, the information and
evidence available, ihl expertise, and the relationship with International Criminal
Law. The value of CoIs should consequently not be overstated.
1 Introduction
While the creation of fact-finding bodies in the international realm is not new,
the proliferation of such institutions over the past two decades, in particular
those created by the UN is striking. Recent years have seen the UN Human
Rights Council (unhrc), the unsc, the unsg, and the unga establish fact-
finding missions and CoIs with different mandates in conflict or post-conflict
contexts. At times, the creation of a CoI is even seen as the international com-
munity’s sole response to a situation of international concern in the absence of
agreement on other measures. Even so, such as in the case of Yemen before the
unhrc, the process itself of establishing a CoI or even a watered down option
may give rise to a diplomatic struggle.
* Théo Boutruche is Instructor at Notre-Dame University, Lebanon. He is also an Indepen-

dent Consultant in International Humanitarian Law and Human Rights. The views expressed
are those of the author alone and do not necessarily reflect the views of any institution the
author is affiliated with.

Potential and Challenges 99
The mandates of CoIs may vary. Some are strictly limited to establishing
facts on disputed incidents. For example, the UN boards of inquiry set up by
the unsg, such as the UN Headquarters Board of Inquiry on the 2014 Gaza Con-
flict, are “directed not to include in [their] report any findings of law”.1 Similar-
ly, the UN Mission to Investigate Allegations of the Use of Chemical Weapons
in Syria was strictly mandated to “ascertain the facts related to the allegations
of use of chemical weapons”.2 However, UN CoIs are more commonly tasked to
address alleged human rights and ihl violations, leading those organs to both
ascertain facts and qualify them as violations of relevant norms. For example,
the unsc created the International Commission of Inquiry on Darfur in 2004
and the unhrc established fact-finding missions and CoIs to address alleged
violations committed during the war in Lebanon in 2006, the Gaza conflict in
2009 and 2014, and the conflicts in Libya and Syria in 2011. Such bodies may
also be mandated, as in the latter case, to identify perpetrators. Although rare,
some mandates focus only on determining the actors responsible for certain
conduct, such as the Organisation for the Prohibition of Chemical Weapons
(opcw) – UN Joint Investigative Mechanism (jim) created by the unsc in 2015
and entrusted with identifying those involved in the use of chemical weapons
in Syria. The increased resort to CoIs led some scholars to ask whether they
constitute a new form of adjudication in the absence of compulsory universal
jurisdiction by international judicial bodies.3
With regard to ihl in particular, the role and potential contribution of CoIs
in relation to ihl are manifold. First and foremost, CoIs, when carrying out
their mandates – and due to the context in which they operate – refer to a
wide range of ihl issues and apply relevant ihl norms. This is so even when
they are only meant to reach factual findings. In this regard, the language used
to describe facts carries some legal implications in situations in which ihl ap-
plies. For example, the factual account of the steps taken by the UN Relief and
1 unsg, Summary by the Secretary-General of the Report of the United Nations Headquar-
ters Board of Inquiry into Certain Incidents that Occurred in the Gaza Strip between 8 July
2014 and 26 August 2014, Annex to Letter dated 27 April 2015 from the Secretary-General ad-
dressed to the President of the Security Council, S/2015/286, 27 April 2015, para. 4.
2 unsg, Report of the United Nations Mission to Investigate Allegations of the Use of Chemi-
cal Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the
Ghouta Area of Damascus on 21 August 2013, A/67/997-S/2013/553, 13 September 2013, at 4,
para. 1.
3 D. Akande, H. Tonkin, ‘International Commission of Inquiry: A New Form of Adjudication’,
ejil: Talk!, 6 April 2012, available at: https://www.ejiltalk.org/international-commissions-of
-inquiry-a-new-form-of-adjudication/.
100 Boutruche
Works Agency for Palestine Refugees in the Near East, to communicate and
inform the Israeli Military of the gps coordinates of UN premises, as well as
the reference to their obligations to take all actions necessary to prevent any
damage to UN facilities, hint directly at ihl language on precautions in attack.
Unsurprisingly, this is the contribution of CoIs that received the greatest atten-
tion to date, in particular when they interpret certain rules of ihl of unsettled
meaning and scope, and consequently may also contribute to the progressive
interpretation of international law norms.4 This can indirectly help ensure bet-
ter respect for ihl by further clarifying the norms and making them under-
standable to parties to a conflict, through their application to particular facts
and conduct in armed conflict.
However, the increasing resort to CoIs to address alleged ihl violations
raises the question of their potential contribution to the implementation of
ihl as such. It is topical to note that the question of implementation and the
limitations of existing ihl compliance mechanisms constitute one of the key
weaknesses of ihl.5 As highlighted by an expert, “insufficient observance of its
rules, is probably the greatest current challenge to the continued credibility of
[ihl]”.6 This being said, scholars also acknowledge that, unlike other branches
of international law, ihl provides more elaborate and specific mechanisms,7
and that some of those function despite their limitations.8 Furthermore,
Marco Sassòli points out that, while the “credibility gap between the law and
reality is growing”, the disconnection between the protection expected from
ihl and what ihl delivers is “broader in perception than in reality”.9 This
4 T. Rodenhäuser, ‘Progressive Development of International Human Rights Law: The Reports

of the Independent International Commission of Inquiry on the Syrian Arab Republic’, ejil:
Talk!, 13 April, 2013, available at: https://www.ejiltalk.org/progressive-development-of-inter
national-human-rights-law-the-reports-of-the-independent-international-commission-of
-inquiry-on-the-syrian-arab-republic/.
5 See for example: M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect In War, Vol. i
(2006), Chapter 13, at 3; A. Roberts, ‘The Laws of War: Problems of Implementation in Con-
temporary Conflicts’, 6(1) Duke Journal of Comparative & International Law (1995), at 11–78;
T. Pfanner, ‘Various Mechanisms and Approaches for Implementing International Humani-
tarian Law and Protecting and Assisting War Victims’, 91(874) irrc (2009), at 279–328.
6 J. Pejić, ‘Strengthening Compliance with ihl: The ICRC-Swiss Initiative’, 98(901) irrc (2016),
at 315.
7 F. Kalshoven, Y. Sandoz (eds.), Implementation of International Humanitarian Law Research
Papers by Participants in the 1986 Session of the Centre for Studies and Research in Interna-
tional Law and International Relations of the Hague Academy of International Law (1989), at
xii.
8 M. Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent
Challenges’, 10 yihl (2007), at 45.
9 Ibid, at 67 et seq.
author, however, warns of the ensuing risk of further erosion of respect for
ihl.
Against this backdrop, it is tempting to assume or take for granted that CoIs
contribute to bridging gaps in the implementation of ihl, not least because
States recognized fact-finding as a means of ensuring better respect for ihl
when they included a fact-finding body, the International Humanitarian Fact-
Finding Commission (ihffc), as part of ihl specific implementation mecha-
nisms. Furthermore, the same way as international human rights protection
mechanisms, including regional courts, play an increasing role in addressing
the absence of ihl procedural remedies, CoIs could be seen as a way to fill the
gap left by the very limited use of enquiry mechanisms under ihl treaties, in
particular the ihffc.
This piece is neither meant to be exhaustive, nor aims at providing em-
pirical data as a method to establish whether this contribution is merely
perceived or real. It only focuses on the most significant aspects of how CoIs
can strengthen respect for ihl by using some examples, while also looking at
related challenges. This is done by referring to existing ihl implementation
mechanisms and functions as a background, in particular those with the aim
of ensuring greater respect for the law in times of war and those meant to re-
press violations. Ultimately, the value of CoIs should not be overstated, not
least because the key challenge that undermines ihl specific implementation
mechanisms remains relevant for CoIs as well: how to guarantee effective com-
pliance by belligerents in times of war, a period characterised by the lack of
trust between the parties to the conflict accompanied by mutual accusations
of violations?
2 Fact-Finding as an Integral Component of Existing ihl

Implementation Mechanisms
In light of the very limited use of enquiry mechanisms under ihl treaties, one
may doubt whether CoIs may serve as an alternative means to improve obser-
vance of ihl by parties to a conflict. However, it is paramount to separate the
underlying purpose of those mechanisms from the reasons behind their lack
of effectiveness.
It is, first, important to recall the two main approaches to the notion of
implementation of ihl. These consist of “enforcement”, which focuses on
the ways to restore observance of ihl when it has been violated, and “com-
pliance”, which relates to ensuring belligerents act in conformity with ihl. In
that regard, in order to better understand the possible contribution of CoIs, it
102 Boutruche
is necessary to consider two procedures in particular entrusted with the same

broad function as CoIs: the “Enquiry Procedure” under the 1949 GCs10 and the
ihffc provided for in Article 90 api.
Enquiry refers to the general process of elucidating facts, given that it is the
varied perceptions of these facts that often give rise to the dispute in the first
place.11 It is, at times, used as a synonym for fact-finding. The notion of enquiry
has met resistance from States,12 especially in the field of ihl. This reluctance
may be explained by the very purpose of the enquiry, which is related to al-
leged violations of an ihl treaty that may require establishing the facts as well
as drawing legal conclusions. In light of those potentially far-reaching conse-
quences for States, any attempt to create an automatic procedure of enquiry in
the 1949 GCs failed, and the mechanism adopted relies on the ad hoc consent
of the parties.13
The negotiations on the creation of an ihffc in api during the Diplomatic
Conference of 1974–1977 gave rise to similar difficult debates, partly due to ef-
forts to address the weaknesses of the enquiry procedure under the 1949 GCs.
The establishment of the ihffc pursuant to Article 90 api was a significant step
forward. It is competent to “enquire into any facts alleged to be a grave breach
as defined in the Conventions and this Protocol or other serious violation of
the Conventions or of this Protocol” and to “facilitate, through its good offices,
the restoration of an attitude of respect for the Conventions and this Protocol”.
Unlike the enquiry procedure under the GCs, the ihffc is a permanent body,
which was officially constituted in 1991. In that respect, this is a new ihl com-
pliance mechanism, with the potential to fill the existing institutional gap in
the field of investigating ihl violations. However, the ihffc may only conduct
its work with the consent of the parties involved. Consequently, despite the
contribution of the ihffc to the ongoing debate on strengthening compliance
with ihl, and notwithstanding a declaration made by some 72 States accepting
the competence of the ihffc, as a result of a combination of lack of political
10 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Ameliora-
tion of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners
of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian
Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950).
11 A. Jachec-Neale, ‘Fact-Finding’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Pub-
lic International Law (2011), para. 1.
12 1952 icrc Commentary gci, at 375.
13 The enquiry procedure is envisaged by Articles 52 gci, 53 gcii, 132 gciii, 149 gciv as part
of the Chapter on Repression of Abuses and Infractions. See: 1952 icrc Commentary gci,
at 376–377.
will, reluctance of States towards independent investigative institutions, and

the condition of consent, ihffc has never been used in practice.14
This state of play, combined with the very limited use of the protecting pow-
ers system, which is another ihl specific mechanism,15 was one of the reasons
for the launch, in 2012, of the “Swiss/ICRC Initiative on Strengthening Compli-
ance with ihl”, aimed at reinforcing dialogue among States and other actors
and at identifying concrete ways and means of improving respect for ihl, with
a particular focus on the question of compliance mechanisms.16 This consulta-
tion process was indeed based on the assessment that the ineffectiveness of
those mechanisms lies, in part, in their design, including the requirement of
the agreement of the parties to a conflict and the lack of a broader institutional
framework. However, when discussing the potential functions of what a new
recommended ihl compliance mechanism would look like, the fact-finding
function was excluded because a number of States did not support that as-
pect.17 Interestingly, despite the increasing resort to fact-finding bodies outside
the ihl treaty framework as a way to potentially fill that gap, this phenomenon
was seen by the actors involved in the Swiss/ICRC Initiative as evidence of the
need to strengthen ihl specific mechanisms.18
3 Fact-Finding by CoIs as a Means to Implement ihl during Armed

Conflicts: An Effective Panacea?
Given the prominent role played by CoIs, it is imperative to discuss whether

these organs contribute to the implementation of ihl, while also considering
14 The recent request made by the osce to the ihffc, to appoint an Independent Forensic
Investigation team to establish the facts of an incident where an osce armoured vehicle
was struck by an explosion, resulting in the death of an osce paramedic in Ukraine, was
based on a memorandum of understanding signed between the two institutions outside
the framework of the procedure provided for under Article 90 api. See: ihffc, ‘osce Spe-
cial Monitoring Mission was not Targeted, concludes Independent Forensic Investigation
into Tragic Incident of 23 April 2017’, 7 September 2017, available at: http://www.ihffc.org/
index.asp?Language=EN&mode=shownews&ID=831.
15 Article 8 gci; Article 8 gcii; Article 8 gciii; Article 9 gciv.
16 icrc, ‘Swiss/ICRC Initiative on Strengthening Compliance with ihl – Fact Sheet’, January
2015.
17 icrc in conjunction with the Swiss Federal Department of Foreign Affairs, ‘Strengthening
Compliance with International Humanitarian Law – Concluding Report’, 32IC/15/19.2 (8–10
December 2015), at 24–25, available at: https://www.eda.admin.ch/content/dam/eda/
en/documents/aussenpolitik/voelkerrecht/32IC-Concluding-report-on-Strengthening
-Compliance-with-IHL_EN.pdf. See also: Pejić, supra note 6, at 319–321.
18 Ibid.
104 Boutruche
related challenges. This potential is relevant in relation to two types of imple-

mentation, namely respect for ihl during armed conflicts and repression of
ihl violations through individual criminal responsibility.
3.1 Contributions by CoIs

3.1.1 Elucidating Facts to Rebuke False Claims Fuelling More Violations
During or in the aftermath of an armed conflict, all actors claim that viola-
tions of ihl have occurred. The primary purpose of fact-finding is establishing
“what really happened” and ensuring that the facts are not lost among streams
of false accusations. While ascertaining facts about alleged violations does not
in itself prevent further violations, it fundamentally contributes to establish-
ing a record of the facts to both highlight the actual behaviour of parties to
a conflict and helps, on this basis, determining whether ihl violations took
place. It, therefore, avoids unfounded claims, which would not be settled for
a prolonged period of time, fuel resentment between communities and bel-
ligerents, and lead to acts of vengeance, including further violations of ihl
in the case of renewed armed conflict.19 However, this potential contribution
should not be overstated in that, even when facts about violations have been
convincingly established, parties to a conflict can remain defiant and continue
claiming that violations did not happen. Such attitudes will, even so, be more
easily challenged if facts are established by an independent authority. In addi-
tion, the positions of such parties will have to evolve from contesting that the
alleged facts occurred, to arguing that they do not amount to ihl violations,
forcing them to provide information of the reason for such claims.
Fact-finding in ihl is, as a result, traditionally seen as a means to ensure
the implementation of this body of norms.20 In this regard, the ihffc is un-
derstood to be mandated to contribute to respect for ihl, although this is not
explicitly stated.21 The striking lack of a properly functioning ihl mechanism
tasked with performing this purpose constitutes, in and of itself, a strong argu-
ment for the added value of CoIs. Nonetheless, it is true that a distinction must
be made between, on the one hand, CoIs fulfilling a key role in establishing a
19 Independent International Fact-Finding Mission on the Conflict in Georgia, ‘Report’, Vol

ii, September 2009, para. 430.
20 S. Vité, Les Procédures Internationales d’Établissement des Faits dans La Mise en Oeuvre
du Droit International Humanitaire (1999); M. Bothe, ‘Fact-Finding as a Means of Ensur-
ing Respect for International Humanitarian Law’, in W. Heintschel von Heinegg, V. Epping
(eds.), International Humanitarian Law Facing New Challenges (2007), at 249.
21 L Condorelli, ‘The International Humanitarian Fact-Finding Commission: an Obsolete
Tool or a Useful Measure to Implement International Humanitarian Law?’ 83(842) irrc
(2001), at 393.
record and a factual assessment of alleged violations in a given conflict, and,

on the other hand, their contribution in actually changing the behaviour of
parties to the conflict on the ground.
3.1.2 Singling Out Controversial Behaviour on the Battlefield

The ultimate test for CoIs to contribute to the implementation of ihl lies in
their capacity to initiate changes in the controversial behaviour of parties to
a conflict. This is, as such, the core issue of ihl implementation as a whole.
Despite the challenge in identifying a causal link between the findings of CoIs
and actual changes in unlawful conduct during warfare, CoIs do contribute to
the identification of patterns and issues in the conduct of warfare that need to
be addressed and changed. This ranges from issues pertaining to rules of en-
gagement to practices that either amount to ihl violations or that risk leading
to ihl violations.
One of the US investigations into the US attack on the Médecins Sans
Frontières Trauma Centre in Kunduz, Afghanistan, on 3 October 2015, is a case
in point. While the investigation was criticised for lack of impartiality and for
not considering certain aspects of International Criminal Law,22 this attack
provides some interesting perspectives on the role of fact-finding in addressing
conduct in warfare, apart from the failed attempt to use the ihffc.23 The US
Central Command investigation report, based on the findings that the at-
tack “was caused by a combination of human errors, compounded by pro-
cess and equipment failures”, refers to a series of measures aimed at ensuring
that such issues would not happen again in the future, including “operational
improvements”.24 While it remains to be seen if those recommendations
will lead to changes on the ground, fact-finding work on allegations of ihl
22 See for example: J. Horowitz, ‘Was the Kunduz Strike a War Crime?’ Just Security, 5
October 2015, available at: https://www.justsecurity.org/26569/kunduz-strike-war-crime/;
P. Margulies, ‘Centcom Report on the Kunduz Hospital Attack: Accounting for a Tragedy
of Errors’, Lawfare, 2 May 2016, available at: https://www.lawfareblog.com/centcom-report
-kunduz-hospital-attack-accounting-tragedy-errors.
23 On the discussion about the jurisdiction of the ihffc in this case, see: C. Harwood, ‘Will
the “Sleeping Beauty” Awaken? The Kunduz Hospital and the International Humanitarian
Fact-Finding Commission’, ejil: Talk!, 15 October 2015, available at: https://www.ejiltalk
.org/will-the-sleeping-beauty-awaken-the-kunduz-hospital-attack-and-the-international
-humanitarian-fact-finding-commission/.
24 US Central Command, ‘Summary of the Airstrike on the msf Trauma Center in
Kunduz, Afghanistan on October 3, 2015 – Investigation and Follow-on Actions’, 29
April 2016, available at: http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press
-Release-View/Article/904574/april-29-centcom-releases-investigation-into-airstrike
-on-doctors-without-borde.
106 Boutruche
violations or controversial incidents can, in principle, help single out question-

able behaviour.
The increasing use of CoIs offers more opportunities for an impartial as-
sessment of problematic conduct in warfare. For example, the Independent
Commission of Inquiry on the Gaza Conflict, in its report, addressed the “roof-
knock” strikes used by Israel as advance warnings before launching attacks
during the 2014 conflict. Interestingly, the Commission focuses not on this type
of warning as such, but on how they were not effective for civilians to act upon
them and find safety in the context of the Gaza Strip. This was due to the con-
fusion they caused for civilians in such a densely populated area,25 or to the
lack of time left between the warning and the actual attack.26 The Commission
concluded that the practice of using “roof-knock” strikes should be modified in
light of growing evidence that they were not effective during the first days of
the offensive.27 The fact-finding conducted in relation to the various aspects of
this type of warning, and the related circumstances of their use in that particu-
lar conflict, cautiously indicates that this practice is questionable in relation to
attackers’ obligations on precautions in ihl.
More generally in the field of targeting practices, the contribution of CoIs
in raising concerns over controversial conduct by parties to a conflict is even
more significant. For example, the Independent International Commission of
Inquiry on Syria singled out “double-tap” air strikes, which may be defined as
“a second attack on a target/area [that] follows shortly after the first, having
the effect of killing and injuring those who came to provide aid to, mourn or
remove bodies of the victims of the first attack”.28 This practice may amount
to a violation of different ihl norms, such as the obligation to collect and care
for the wounded and sick or the prohibition to attack civilian humanitarian
relief personnel.29
25 UN Human Rights Council, Report of the Detailed Findings of the Independent Com-
mission of Inquiry established pursuant to Human Rights Council Resolution S-21/1,
A/HRC/29/CRP.4, 22 June 2015, para. 236.
26 Ibid, para. 237.
27 Ibid, para. 242. The Commission noted: “The limited effectiveness of these precautionary
measures must have become abundantly clear during the early days of the operation,
given that many buildings were completely destroyed together with their inhabitants.
The apparent lack of steps taken to re-examine these measures in light of the mounting
civilian toll suggests that Israel did not fully comply with its obligation to take all feasible
precautions in attack”.
28 UN Human Rights Council, Report of the Independent International Commission of In-
quiry on the Syrian Arab Republic, A/HRC/34/64, 2 February 2017, at 10, fn. 4. See for ex-
ample: paras. 39, 43.
29 Ibid, para. 49.
3.1.3 Clarifying the Contents and Interpretation of ihl Norms

Similarly to a number of human rights bodies, which interpreted or took into
account ihl norms, as a result of individual complaints arising in the context
of armed conflicts, CoIs extensively applied and interpreted ihl norms when
determining whether their factual findings amounted to ihl violations.30 This
role indirectly contributes to a better implementation of ihl and should not
be underestimated, not least because CoIs contribute to ensuring better un-
derstanding and dissemination of ihl, as well as to enhancing its credibility.
In a violent context such as an armed conflict, an inevitable tension exists be-
tween the moral evaluation by public opinion and the evaluation according to
the application of ihl to certain acts. The same incident may be perceived as
a violation of ihl by some observers, while a strict application of the law to
the facts may reveal that it is not. Classifying facts as ihl violations through an
impartial and independent body would help reduce this “gap”.31
As a result of the development of the role of CoIs, these bodies are increas-
ingly subject to legal scrutiny. Following the publication of a report by a fact-
finding body, it is not uncommon for scholars to respond with articles that
assess the ways in which key legal questions were addressed.32 This growing
focus on the legal appraisal of CoIs is linked to these bodies being confronted
with the challenging task of establishing facts with regard to a wide array of
unsettled areas of international law, including complex ihl issues, such as the
scope of “direct participation in hostilities”, the threshold of non-international
armed conflict, and determinations about whether a certain attack was
proportionate.
Ultimately, the underlying legal issue is the extent to which CoIs contrib-
ute to the progressive development of the law in certain areas. The manner
in which the Independent International Commission of Inquiry on Syria has
addressed questions of the obligations of armed groups under ihrl and under
the Optional Protocol to the Convention on the Rights of the Child, according
to one scholar, constitutes a contribution to the progressive development of
ihrl.33
30 Akande, Tonkin, supra note 3.

31 Sassòli, supra note 8, at 67.
32 For example, see generally: K.J. Heller, ‘The International Commission of Inquiry on
Libya: A Critical Analysis’, in J. Meierhenrich (ed.) International Commissions: The Role
of Commissions of Inquiry in the Investigation of International Crimes (2013); S. Ratner,
‘Accountability and the Sri Lankan Civil War’, 106(4) ajil (2012); J. Stewart, ‘The UN Com-
mission of Inquiry on Lebanon: A Legal Appraisal’, 5(5) jicj (2007).
33 Rodenhäuser, supra note 4.
108 Boutruche
3.2 Challenges Associated with CoIs

3.2.1 One-Sided Mandates
The context of its creation, the type of authority establishing a CoI outside
the ihl arena, and the mandate conferred upon it, may hamper a CoI in car-
rying out its basic fact-finding function. For example, on 1 September 2014, the
unhrc convened a special session on “the human rights situation in Iraq in
light of abuses committed by the Islamic State in Iraq and the Levant and as-
sociated groups”. During this meeting, it mandated the ohchr to:
dispatch a mission to Iraq to investigate alleged violations and abuses of

international human rights law committed by the so-called Islamic State
in Iraq and the Levant and associated terrorist groups, and to establish
the facts and circumstances of such abuses and violations, with a view to
avoiding impunity and ensuring full accountability […].34
Such a one-sided mandate may be highly questionable when considering that

violations were also carried out by other parties to the conflict, in particular
pro-government Shia militias outsourced by the Iraqi authorities to fight the
“Islamic State”.35 Certainly, the decision to establish an investigative process
resulted from the growing concern within the international community over
the extent and types of abuses committed by this group in Iraq. Nevertheless,
the final ohchr investigative report interestingly went beyond the limitations
of its mandate, in part due to the general human rights mandate of this agency,
and provided information on violations committed by the “Islamic State”, as
well as other parties to the conflict.36
However, this illustrates the recurring issue of selectivity in human rights
fact-finding. This is particularly problematic in the area of ihl, in light of the
principle of equality of belligerents, according to which ihl applies equally to
all parties to an armed conflict and imposes the same obligations on them.37
34 UN Human Rights Council, The Human Rights Situation in Iraq in the light of the abuses
committed by the so-called Islamic State in Iraq and the Levant and Associated Groups:
Resolution adopted by the Human Rights Council, A/HRC/RES/S-22/1, 3 September 2014,
para. 10.
35 See for example: Human Rights Watch, ‘Iraq: Militias Escalate Abuses, Possibly War
Crimes – Killings, Kidnappings, Forced Evictions’, 15 February 2015.
36 UN Human Rights Council, Report of the Office of the United Nations High Commis-
sioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses
Committed by the so-Called Islamic State in Iraq and the Levant and Associated Groups,
A/HRC/28/18, 13 March 2015, at 11–14.
37 Article 96(2)(c) api.
Creating a mechanism tasked with investigating only one party to the conflict
may be perceived as dismissing the obligations of the other parties.
Such selectivity also arises in relation to the decision to set up a CoI. The
lengthy and thorny process leading to the establishment of a form of in-
vestigation in relation to Yemen by the unhrc (after some Western States
had dropped an initiative for the establishment of a unhrc CoI to investi-
gate alleged violations of ihl in Yemen, during the unhrc’s 30th session in
September 2015) constitutes a recent example. Consequently, while this is in-
herent to the intergovernmental nature of the organs at stake, this greatly im-
pacts on the capacity of those CoIs to fully compensate for the absence of an
ihl specific fact-finding effective mechanism.
3.2.2 The Information and Evidence Available to CoIs

Although not specific to CoIs, certain unique aspects of fact-finding in relation
to alleged violations of ihl, as opposed to documenting human rights abuses,
pose further challenges.
Fact-finding is commonly based on various sources of information or evi-
dence (usually classified in three categories: physical, documentary and testi-
monial) but, in practice, fact-finding bodies primarily and overwhelmingly rely
on testimonies, be it direct-eye witnesses or expert testimonies. In the context
of ihl fact-finding, those may prove insufficient to provide the relevant facts
needed to make legal determinations as to whether ihl violations were com-
mitted, especially in the field of the conduct of hostilities. They, for example,
only shed light on a particular aspect of an attack and need not address all
relevant circumstances.
Most importantly, there is a constant need to take into account two distinct
matters. The first one concerns the issue of time. The legality of an attack de-
pends on an ex ante evaluation by the attacker, while the facts are established
ex post. The second concerns the actor involved, i.e. the attacker or the de-
fender. This is complicated by the fact that, as mentioned, some mandates are
restrictive regarding the parties to a conflict to be assessed by a CoI. In the case
of the Commission of Inquiry on Lebanon, the unhrc resolution defining the
mandate specifically focuses on the conduct of Israel, excluding other parties
to the conflict (notably Hezbollah) from the scope of the mission’s work. The
commissioners, mindful of this limitation, specifically addressed this issue in
the final report. In more specific terms, they noted that “any independent, im-
partial and objective investigation into a particular conduct during the course
of hostilities must of necessity be with reference to all the belligerents involved”
and, thus, “an inquiry into the conformity with international humanitarian
law of the specific acts of idf [Israeli Defense Forces] in Lebanon requires
110 Boutruche
that account also be taken of the conduct of the opponent”.38 Interestingly, a

similar limitation contained in the unhrc resolution creating the Gaza Fact-
finding Mission was adjusted in the letter of the unhrc President that slightly
redefined the mandate.39 Based on this letter, which the mission considered to
be the operative mandate, it “determined that it was required to consider any
actions by all parties that might have constituted violations of international
human rights law or international humanitarian law”.40
3.2.3 ihl Expertise

CoIs have, at times, adopted a more human rights oriented approach when
interpreting and applying ihl norms. They have even adopted definitions and
positions that either differ from commonly agreed upon concepts under ihl
or are not well settled. This was raised, in particular, in the context of the afore-
mentioned ICRC/Swiss Initiative and seen as a challenge for CoIs, due to the
lack of “requisite ihl expertise and/or mandate to engage in a qualified exami-
nation of the application of ihl norms”.41
A telling example relates to the determination by the Independent Interna-
tional Commission of Inquiry on Syria that the evacuation of the civilian popu-
lation from Eastern Aleppo “amounts to the war crime of forced displacement”
38 See: UN Human Rights Council, Report of the Commission of Inquiry on Lebanon pursu-
ant to Human Rights Council Resolution S-2/1, A/HRC/3/2, 23 November 2006, para. 16.
However, it was also noted that, “taking into consideration the express limitations of its
mandate, the Commission is not entitled, even if it had wished, to construe it as equally
authorizing the investigation of the actions by Hezbollah in Israel”.
39 UN Human Rights Council, The Grave Violations of Human Rights in the Occupied
Palestinian Territory, particularly due to the recent Israeli military attacks against the oc-
cupied Gaza Strip, A/HRC/S-9/1, 12 January 2009, para. 14 states that the mandate is “to in-
vestigate all violations of international human rights law and international humanitarian
law by the occupying Power, Israel, against the Palestinian people throughout the Occu-
pied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current ag-
gression”. However, the subsequent letter of the hrc president to the Chair of the Mission
offers a broader mandate “to investigate all violations of international human rights law
and international humanitarian law that might have been committed at any time in the
context of the military operations that were conducted in Gaza during the period from
27 December 2008 and 18 January 2009”. See: UN Human Rights Council, Report of the
United Nations Fact Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September
2009, para. 1. It is reported that, following Mary Robinson’s refusal to head the mission,
and after the first objection by Justice Goldstone, both of whom criticized the bias of the
mandate, the hrc president widened the mandate’s scope to encompass the conduct of
Hamas. See: ‘Goldstone’s UN Inquiry Team arrives in Gaza’, bbc News, 1 June 2009.
40 UN Human Rights Council, Report of the United Nations Fact Finding Mission on the
Gaza Conflict, A/HRC/12/48, 25 September 2009, para. 11.
41 Pejić, supra note 6, at 321.
since it was made “for strategic reasons” and “not for the security of civilians or
imperative military necessity”.42 Such classification was criticised.43
The finding of the Côte d’Ivoire Commission that, since the conflict did not
take place on the whole territory of the country, ihl only applied to the parts of
the country where a non-international armed conflict was effectively ongoing,
constitutes another example.44 This appears to contradict the well-established
jurisprudence of the icty. Specifically, in the Tadić case, the Appeals Cham-
ber stressed that “the temporal and geographical scope of both internal and
international armed conflicts extends beyond the exact time and place of
hostilities”.45 In this case, the Appeals Chamber rejected the argument of the
appellant on the grounds that ihl pertains not only to those areas where ac-
tual fighting takes place, but rather to the entire territory of the State involved
in armed conflict.
Another striking example is the final report of the Libya Commission, which
stresses: “international human rights law obligations remain in effect and op-
erate to limit the circumstances when a State actor – even a soldier during in-
ternal armed conflict – can employ lethal force”.46 By employing an approach
whereby ihrl limits the use of force against legitimate lawful targets under
ihl, the Libya Commission adopts a very progressive interpretation of the in-
terplay between ihl and ihrl regarding the use of lethal force.
4 CoIs as the Antechamber of Criminal Responsibility for ihl

Violations?
Given the progress made in the field of repressing serious violations of ihl,
as a means of implementation through the development of international
42 UN Human Rights Council, supra note 28, para. 93.

43 See: K. Ambos, ‘Evacuation of Civilian Populations and Criminal Complicity: A Critical
Appraisal of the February 2017 Report of the Syria Commission of Inquiry’, ejil: Talk!, 24
May 2017, available at: https://www.ejiltalk.org/evacuation-of-civilian-populations-and
-criminal-complicity-a-critical-appraisal-of-the-february-2017-report-of-the-syria
-commission-of-inquiry/; E. Pothelet, ‘The Evacuation of Eastern Aleppo: Humanitarian
Obligation or War Crime?’ ejil: Talk!, 14 March 2017, available at: https://www.ejiltalk.org/
the-evacuation-of-eastern-aleppo-humanitarian-obligation-or-war-crime/.
44 UN Human Rights Council, Rapport de la Commission d’Enquête Internationale In-
dépendante sur la Côte d’Ivoire, A/HRC/17/48, 1 July 2011, para. 89.
45 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v.
Tadić, icty, Appeals Chamber, 2 October 1995, para. 70.
46 UN Human Rights Council, Report of the International Commission of Inquiry on Libya,
A/HRC/19/68, 8 March 2012, para. 60.
112 Boutruche
criminal courts and tribunals, it comes as no surprise that the question of the
contribution of CoIs received significant attention in this regard. Their func-
tion to serve as a preliminary step to initiate subsequent legal proceedings has
been highlighted as a prominent feature.47
However, the institutional and substantive development of International
Criminal Law should not be conflated with the assumption that CoIs contrib-
ute naturally to this process as an efficient antechamber of criminal judicial
proceedings. A more nuanced approach is required.
First, limitations pertaining to certain institutions, in particular the icc,
remain prominent. For example, despite the role played by the Darfur Com-
mission of Inquiry in bringing cases before the icc, arrest warrants against
Al-Bashir and other individuals have not been enforced to date. Consequently,
other CoIs, such as the Independent International Commission of Inquiry on
Syria, have relied on other fora. It is interesting to note that, due to the deadlock
before the unsc, this Commission considered domestic prosecutions for war
crimes to overcome that obstacle.48 In that respect, the reliance on national
courts under the principle of universal jurisdiction to achieve accountability
makes use of a traditional ihl implementation mechanism provided for in
ihl treaties. The recent veto by Russia before the unsc to a resolution renew-
ing the mandate of the jim, tasked with identifying perpetrators of the use
of chemical weapons in Syria, illustrates how the political dimension also im-
pacts CoIs even before considering a formal criminal process.49
Apart from the issue of the forum to achieve accountability, the increas-
ing use of CoIs to identify individual perpetrators also raises methodological
and legal issues pertaining to the relationship between ihl and International
Criminal Law standards, such as the question of the standards of proof to be
used by those bodies.50 For example, a CoI entrusted with a mixed mandate
of not only establishing the facts of alleged violations committed by a State
and by non-State actors, but also identifying individuals, may have to apply
47 See for example: M. Frulli, ‘UN Fact-Finding Commissions and the Prosecution of War
Crimes: An Evolution Towards Justice-Oriented Missions?’; S. Vezzani, ‘Fact-Finding
by International Human Rights Institutions and Criminal Prosecution’, in F. Pocar, M.
Pedrazzi and M. Frulli (eds.) War Crimes and the Conduct of Hostilities: Challenges to
Adjudication and Investigation (2013), at 331–348, 349–368.
48 Reuters, ‘U.N. Investigators Sharing Syria War Crimes Findings with European Authori-
ties’, 17 March 2015.
49 Reuters, ‘Russia Vetoes Extension of Mission Probing Chemical Weapons Use in Syria’, 24
October 2017.
50 See for example: S. Wilkinson, ‘Standards of Proof in International Humanitarian and
Human Rights Fact-Finding and Inquiry Missions’, Geneva Academy of International Hu-
manitarian Law and Human Rights.
different standards of proof, and not just a mere “balance of probabilities”

evidentiary threshold to make its determinations concerning individuals. For
example, the International Commission of Inquiry on Darfur had to identify
individual perpetrators, and therefore resorted to a combined formula without
reaching the higher standard of proof used by criminal tribunals.51
Conversely, an excessive focus on criminal prosecutions as the most impor-
tant ihl implementation is misleading. As noted by Marco Sassòli, “[this] may
also give the impression that all behaviour in armed conflict is either a war
crime or lawful”, increasing “frustration and cynicism about ihl and its effec-
tiveness, which in turn facilitates violations”.52 Furthermore, criminal proceed-
ings provide for a much more narrow framework, whereas CoIs operate with
much broader and more flexible mandates and procedures.
While a dialogue between CoIs and international criminal justice actors is
key to ensure synergy and greater effectiveness, the reference and use of no-
tions derived from criminal investigations and criminal law proceedings in the
work of CoIs raises a more fundamental question regarding the potential in-
fluence of International Criminal Law terms and language over fact-finding
methodology. The scope and elements of the “migration” process of Interna-
tional Criminal Law from the courtroom into the fact-finding work of CoIs
only recently received attention from scholars, be it in terms of using similar
legal frameworks for different purposes53 or in terms of methodology.54 Jacobs
and Harwood provide an in-depth analysis of the impact of an International
Criminal Law focus on the quality of fact-finding, both “in terms of the quality
of procedural aspects of commissions’ work, including through the adoption
of evidentiary standards and substantive aspects of fact-finding”.55 While CoIs
commonly state that they are not judicial or quasi-judicial bodies, as pointed
out by Jacobs and Harwood, such fact-finding bodies use some procedures and
terms that correspond to those found in judicial contexts “in the desire to pro-
duce credible reports and collect information which may assist subsequent
51 Report of the International Commission of Inquiry on Darfur to the United Nations

Secretary-General, 25 January 2005, para. 15.
52 Sassòli, supra note 8, at 54.
53 L. van den Herik, C. Harwood, ‘Commissions of Inquiry and the Charm of Internation-
al Criminal Law. Between Transactional and Authoritative Approaches’, in P. Alston, S.
Knuckey (eds.), The Transformation of Human Rights Fact-Finding (2015), at 233–254.
54 D. Jacobs, C. Harwood, ‘International Criminal Law Outside the Courtroom: The Impact
of Focusing on International Crimes for the Quality of Fact-Finding by International
Commissions of Inquiry’, in M. Bergsmo (ed.), Quality Control in Fact-Finding (2013), at
325–326.
55 Ibid, at 327.
114 Boutruche
prosecutions”56 such as taking witness testimony under oath and seeking to

hear witnesses from different parties to the conflict.
The influence of International Criminal Law on fact-finding also has its
own limits. For instance, fact-finders’ activities may result in tainting evidence,
rendering it unusable by prosecutors or affecting the credibility of witness
statements by creating discrepancies of the same account through multiple
interviews by various actors.57 These limitations mostly relate to the potential
detrimental impact of certain actions or methods on judicial processes.
Thus, while CoIs unquestionably contribute to criminal prosecutions for se-
rious ihl violations at the international level and increasingly at the domestic
level, with recent cases related to Syria before European courts,58 including by
providing leads for investigations, this should not be the sole prism to address
the impact of CoIs on ihl implementation.
5 Conclusion
In light of the above, CoIs unquestionably contribute to the implementation

of ihl, through elucidating allegations of ihl violations, addressing contro-
versial behaviour on the battlefield, and by providing information to serve
as a basis for criminal prosecutions for serious ihl violations. However, key
challenges remain that should be further integrated in the methodology of the
work of CoIs to make this contribution more effective.
Furthermore, CoIs have their own limitations and should not undercut the
need to strengthen efforts for ihl specific existing enquiry mechanisms to be
used, or for new ones to be created. However, in the event that an enquiry
procedure under the GCs is instituted, its functioning will undoubtedly be in-
fluenced by the emerging practice of fact-finding and inquiry missions created
outside the ihl framework.
56 Ibid, at 334–335.
57 Ibid, at 338.
58 Human Rights Watch, ‘These are the Crimes we are Fleeing’ – Justice for Syria in Swedish
and German Courts’, 3 October 2017.
The Intricate Relationship between International
Human Rights Law and International
Humanitarian Law in the European Court
for Human Rights Case Law: An Analysis of the
Specific Case of Detention in Non-International
Armed Conflicts
Damien Scalia and Marie-Laurence Hebert-Dolbec*
Abstract
The relationship between ihrl and ihl has proven tempestuous and ambiguous,
thus allowing bodies responsible for their enforcement to engage in cherry picking.
The issue of detention in non-international armed conflicts is not immune from this
approach. In order to analyse this specific situation, this paper first aims to clarify
the mutual influences between these two fields of law. To do so, the authors explore
(1) how ihl bodies use ihrl, and (2) how, in turn, human rights bodies use ihl. With
a specific focus on European case law, they (3) underline the problematic use of ihl by
the ECtHR in the case of detention in non-international armed conflicts. On this basis,
they conclude that maximum protection of detainees remains the judges’ main goal.
1 Introduction
The relationship between ihl and ihrl is intricate. The links between these
two bodies of law are tackled in a composite and discontinuous way. In or-
der to grasp such linkages, authors generally diverge on the basis of three ap-
proaches. First, and most traditionally, some consider ihl and ihrl as two
completely distinct branches of law, following what will be described here as a
* Damien Scalia is Professor at the Faculty of Law and Criminology, Université Libre de Brux-
elles. Marie-Laurence Hebert-Dolbec is f.r.s.-f.n.r.s. Research Fellow and PhD Candidate at
the International Law Center, Université Libre de Bruxelles. The views expressed are those of
the authors alone and do not necessarily reflect the views of any institution the authors are
affiliated with.

116 Scalia and Hebert-Dolbec
separatist approach.1 Second, others adhere to an integrationist approach, ac-

cording to which ihl and ihrl form one and the same legal order.2 Finally, an
intermediate approach, qualified as complementary, may be identified. From
this viewpoint, both bodies of law are applied, ensuring a better protection of
individuals.3
Nowadays, the literature leans towards the latter approach and practice ap-
pears to do the same. As stated by Heintze,
it seems that the co-existence or even merger of international humani-

tarian law and human rights is much more advanced in practical terms
than in legal theory. Some scholars still regret that the detailed debate did
not succeed in a common conclusion as to how the normative wealth of
both branches of the law can combine to serve the protection of human
beings.4
In a similar vein, Frumer underlines an overarching trend: international tri-

bunals and organisations’ practice seems to favour a simultaneous applica-
tion of ihl and ihrl.5 The icj, inter alia, followed this train of thought in
numerous cases.6 For instance, in its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, the icj declared that the protection offered
by the iccpr shall continue to apply in times of armed conflict.7 Likewise, the
1 C. Swinarski, Introduction au Droit International Humanitaire (1984), at 16.

2 F. Martin, ‘Le Droit International Humanitaire Devant les Organes de Contrôle des Droits de
l’Homme’, 1 Droits Fondamentaux 119 (2001).
3 H.-J. Heintze, ‘Theories on the Relationship between International Humanitarian Law and
Human Rights Law’ in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and
Humanitarian Law (2013), at 57–61.
4 Ibid, at 53; S. Sayapin, ‘The International Committee of the Red Cross and International
Human Rights Law’, 9(1) Hum. Rights Law Rev. 95 (2009), at 96; P. Frumer, ‘Quand Droits de
l’Homme et Droit International Humanitaire s’Emmêlent – Un Regard Critique sur l’Arrêt
Hassan c. Royaume-Uni (Obs. sous Cour Eur. Dr. H., Gde Ch., Arrêt Hassan c. Royaume-Uni,
16 Septembre 2014)’, 102 Revue Trimestrielle des Droits de l’Homme 481 (2015), at 485–486.
5 Frumer, supra note 4.
6 Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, International Court of
Justice, 8 July 1996, para. 25; Advisory Opinion, Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, International Court of Justice, 9 July 2004, para.
106; Judgment, Case Concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), International Court of Justice, 19 December 2005, para. 216.
7 Legality of the Threat or Use of Nuclear Weapons, supra note 6, para. 25. See also: E.
Kristjansdottir, ‘Note: The Legality of the Threat or Use of Nuclear Weapons Under Current
International Law: The Arguments Behind the World Court’s Advisory Opinion’, 30 N.Y.U. Int’l
L. & Pol. 291 (1997–1998).
The Intricate Relationship between ihrl and ihl 117
ilc recognizes this principle of simultaneous application in two sets of Draft

Articles.8
The simultaneous application of ihl and ihrl, however, triggers the ques-
tion of whether there is a lex specialis and when it applies. An analysis of the
practice in this regard does not show a general lex specialis, according to which
one branch of law would fully substitute the other. It rather shows an in con-
creto application, on a case-by-case basis, of the most protective norm for
human beings regardless of the situation, i.e. whether there is an armed con-
flict (where ihl would logically apply) or in times of peace (where only ihrl
may apply). As argued by Gaggioli,
the relationship between human rights and ihl must not be reduced to
a mere equation: ‘ihl is always the lex specialis’ or ‘human rights law al-
ways provides a better protection than ihl’. The more we look at human
rights and ihl rules, the more we discover the number and range of their
mutual benefits. While analysing the right to life, we discovered, within
each of these constituents, an amazing microcosm of interacting rules,
which emphasises the panoply of mutual benefits and influences be-
tween human rights and ihl.9
The approach developed by Gaggioli is the starting point of the reflection de-
veloped in the next pages. The purpose is to explore the relationship between
ihrl and ihl in one specific instance: detention in non-international armed
conflicts. In such a case, we will show that human rights bodies do not feel
compelled to invoke ihl in order to interpret their constitutive conventions.
Whilst regional human rights courts, and more especially the ECtHR, consider
that ihl can be used as an interpretative tool, in some instances ihl is rather
not to be used. As the ultimate goal is to provide a better protection to persons
deprived of liberty, ihrl is sometimes more auspicious in this sense. It goes
without saying that, even though the two branches of law share some features
and, most importantly their main purpose, to protect human beings,10 addi-
tional considerations must be taken into account. As a matter of fact, when
8 ilc, Draft Articles on the Effects of Armed Conflicts on Treaties and Commentaries (2011),
art. 7 and Annex. See also: ilc, The Effect of Armed Conflicts on Treaties: an Examination
of Practice and Doctrine. Memorandum by the Secretariat, A/CN.4/550, 1 February 2005,
para. 32; ilc, Draft articles on Responsibility of States for Internationally Wrongful Acts
with commentaries (2001), at 74, para. 3.
9 G. Gaggioli, L’Influence Mutuelle entre les Droits de l’Homme et le Droit International
Humanitaire à la Lumière du Droit à la Vie (2013), at 529 (our translation).
10 Ibid, at 242.
dealing with detention in non-international armed conflicts, the discernible

trend is for the ECtHR’s judges to favour the regime offering the best protec-
tion of individuals over any lex specialis.
In order to understand the interaction between ihl and ihrl when it
comes to detention in non-international armed conflicts, it should first be re-
called how human rights are taken into account overall by ihl bodies. Sec-
ondly, the use of ihl by human rights bodies and specifically by the IACmHR
and IACtHR as well as the ECtHR will be presented in general. Finally, we will
try to explain why the latter body circumvents ihl in favour of ihrl in relation
to non-international armed conflicts.
2 The Use of ihrl by Bodies Responsible for ihl Enforcement
An exhaustive analysis of how ihl bodies take ihrl into account is too ambi-
tious for this contribution. Our focus will thus be on international criminal tri-
bunals (i.e. repressive ihl institutions) and on the icrc. The practice of these
institutions contains the best examples of the influence of ihrl over ihl. This
influence can be qualified as legitimating.11 In other words, ihrl is used to
justify developments of ihl.
Depending before which international criminal jurisdiction one stands, the
icty, ictr, or the icc, ihrl does not have the same status. Article 21(3) icc
Statute states that internationally recognized human rights must be applied.
However, the statutes and rules of the icty and ictr do not have equivalent
provisions. Nevertheless, on many occasions these tribunals have referred to
the case law of regional human rights courts or, at the very least, used this
branch of international law in their decisions.12
For instance, ihrl was and is still relied on to develop the principles of law
and the rights of the accused during the proceedings, and to define crimes and
modes of liability. In several cases, the icty referred to general principles of
law, such as the legality principle13 and the stare decisis principle.14 Likewise,
11 D. Scalia, ‘The Nulla Poena Sine Lege Principle: A Symptomatic Sign of Interactions be-
tween Strasbourg and The Hague’, in T. Mariniello, P. Lobba (eds.), Judicial Dialogue on
Human Rights: The Practice of International Criminal Tribunals (2017), at 131–148.
12 E.g. Judgment, Prosecutor v. Tadić, icty, Appeals Chamber, 2 October 1995, paras. 44,
48–50; Judgment, Prosecutor v Furundžija, icty, Trial Chamber, 10 December 1998, para.
183. See also: U. Linderfalk, ‘Cross-Fertilisation in International Law’, 84(3) Nordic Journal
of International Law 428 (2015). See also: Scalia, supra note 11, at 131–148.
13 Judgment, Prosecutor v. Blaškić, icty, Appeals Chamber, 29 July 2004, para. 141.
14 Judgment, Prosecutor v. Aleksovski, icty, Appeals Chamber, 24 March 2000, para. 95.
international criminal tribunals used ihrl to define the right to freedom15 as

well as preventive detention rights,16 impartiality,17 fair trial,18 or, before the
icc, the right to freely choose counsel.19
Furthermore, international criminal jurisdictions also used ihrl to define
the elements of the crimes they adjudicate. In several cases, the icty referred
to ihrl in order to define a violation of human dignity or instances of inhu-
mane treatment.20 In Aleksovski, for instance, the Trial Chamber referred to
ECtHR case law and to the Convention against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment of 1984 to define inhuman treat-
ment and enforce it in the context of international criminal law. In the same
vein, the icty turned to ihrl to define torture,21 and to define rape as an act
of torture.22 In Furundžija, the bench used expressis verbis the definition of
torture contained in the 1984 Convention since neither Article 3 of its Statute
nor ihl defined that offence.23 In the same decision, they relied on ihrl to
define rape as torture.24
15 Décision Relative à la Requête aux Fins de Mise en Liberté Déposée par l’Accusé Slavko
Dokmanoviċ, Prosecutor v. Dokmanoviċ et al., icty, Trial Chamber, 22 October 1997,
paras. 27–28 and 64–67. In the same vein, the judges turned to human rights (echr and
iccpr) in order to define the notion of “law” (para. 60).
16 Decision on Motion for Provisional Release Filed by the Accused Zejnil Delaliċ, Prosecu-
tor v. Delaliċ, icty, Trial Chamber, 25 September 1996, para. 19; Decision on Application
for Interim Release, Prosecutor v. Bemba, icc, Pre-Trial Chamber iii, 16 December 2008,
para. 31.
17 Decision, Prosecutor v. Delaliċ, icty, Bureau on Motion on Judicial Independence
(President McDonald, Vice-President Shahabuddeen, Judge Cassese and Judge Jorda), 4
September 1998.
18 Decision on the Prosecution’s Motion for an Order Requiring Advance Disclosure of Wit-
nesses by the Defence, Prosecutor v. Delaliċ, icty, Trial Chamber, 4 February 1998.
19 Reasons for “Decision of the Appeals Chamber on the Defence application ‘Demande de
Suspension de Toute Action ou Procédure afin de Permettre la Désignation d’un Nouveau
Conseil de la Défense’ filed on 20 February 2007” issued on 23 February 2007, Prosecutor
v. Lubanga, icc, Appeals Chamber, 9 March 2007, para. 15.
20 Judgment, Prosecutor v. Delalić, icty, Trial Chamber, 16 November 1998, para. 462;
Judgment, Prosecutor v. Blagojević, icty, Trial Chamber, 17 January 2005, para. 587.
21 Judgement, Prosecutor v. Krnojelac, icty, Trial Chamber, 15 March 2002, para. 181; Judg-
ment, Prosecutor v. Kvočka et al., icty, Trial Chamber, 2 November 2001, para. 142;
Judgment, Prosecutor v. Kunarac et al., icty, Trial Chamber, 22 February 2001, para. 466.
22 A. Cassese, ‘L’Influence de la cedh sur l’Activité des Tribunaux Pénaux Internationaux’,
in A. Cassese, M. Delmas-Marty (eds.), Crimes Internationaux et Juridictions Internation-
ales (2002), at 177–178.
23 Judgment, Prosecutor v. Furundžija, supra note 12, para. 159. This jurisprudence has been
repeatedly reiterated: Judgment, Prosecutor v. Delalić et al., supra note 20, paras. 481–493;
icty, Prosecutor v. Kvočka et al., supra note 21, para. 145; Judgment, Prosecutor v. Kunarac
et al., supra note 21, para. 437.
24 Prosecutor v. Furundžija, supra note 12, paras. 170–171.
As has been seen, international criminal tribunals and courts that prosecute
ihl violations frequently use ihrl to justify (and legitimate) their approaches
and decisions. But they are not alone. The mutual influence of ihrl and ihl
may also be observed in the work of the icrc.
Indeed, in its study on customary ihl as well as in the new commentaries to
the GCs, ihrl is used to give a contemporary interpretation to the rules writ-
ten in 1949. Since the Teheran Conference, the icrc has increasingly appraised
ihrl.25 References to ihrl are now common.26 Indeed, while the icrc re-
fused before 1968 to take ihrl into account because they were political rights,
“the Committee now aims to protect and promote human rights, calls upon
States to respect and promote human rights, notes that some practices or situ-
ations violate human rights, praises the UN work in developing human rights
in armed conflicts, and acknowledges the general and specific complementar-
ity of human rights and ihl”.27 In this regard, a report linking ihrl and ihl
was published during the 31st International Conference of the Red Cross and
Red Crescent in 2011. This report highlights that ihl is the lex specialis in times
of armed conflicts.
More importantly with respect to the present chapter, a specific part of
this icrc report – as in many following reports – is dedicated to detention
in non-international armed conflicts. Here, the question of the applicability
of ihrl is primordial considering the controversy related to the application
of ihl in this case. Indeed, the legal basis provided by ihl for detention in
non-international armed conflicts is unclear. Some commentators, such as
Hill-Cawthorne, consider that “none of those provisions applicable in non-
international armed conflicts, comprising (principally) common Article 3 and
Additional Protocol ii […], provides an explicit legal basis for internment.
Nonetheless, applicable treaty rules recognize that parties to non-internation-
al conflicts will intern, regulating various aspects thereof, including treatment
standards for detainees”.28 In other words, according to those authors, Article 3
and apii stand for the recognition and regulation of internment, but are not
equivalent to an authorisation.29
25 R. Kolb, ‘Human Rights Law and International Humanitarian Law between 1945 and the
Aftermath of the Teheran Conference of 1968’ in R. Kolb, G. Gaggioli (eds.), Research
Handbook on Human Rights and Humanitarian Law (2013), at 35 ff.
26 Gaggioli, supra note 9, at 208–211.
27 Ibid. (our translation)
28 L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016), at 69.
29 Ibid, at 74. See also: M. Sassòli, L.M. Olson, ‘The Relationship between International
Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Intern-
ment of Fighters in Non-International Armed Conflicts’ 90(871) irrc 599 (2008), at 618.
Other commentators, however, find that conventional ihl applicable in

non-international conflicts confers an implicit legal basis to intern.30 ihl is
considered as the lex specialis and ihrl only fills the gaps or reinforces (or le-
gitimates) what is already provided for in ihl. Consequently, for the icrc, the
two bodies of law (ihl and ihrl) provide for similar protection with regard
to four areas: “[r]ules on the treatment of detainees (in the narrow sense)”,
“[r]ules on material conditions of detention”, “[f]air trial rights”, and “[p]ro-
cedural safeguards in internment”.31 In this report, the icrc recognizes that
“all of the acts are prohibited under both ihl and human rights law” and that
“a common catalogue of standards could even be derived from both bodies
of law” for the first and second category, respectively. For the third group of
rights, the icrc states that ihl reinforces the relevant human rights provi-
sions as “it allows no derogation from fair trial rights in situations of armed
conflict”.32 Simply stated,
the analysis provided by the icrc […] highlights that ihl remains the
principal body of law to be applied during armed conflicts in the eyes
of the icrc; that ihl differs in many ways from human rights (e.g. ihl
directly binds upon organised armed groups unlike human rights); that
ihl is sometimes at odds with human rights in times of armed conflicts
particularly regarding the conduct of hostilities and the legal regime
applicable to war prisoners and civilian detainees. However, the icrc
recognises the importance of human rights as a complementary legal
regime to ihl. Human rights may fill some gaps, for instance when in-
dividuals are targeted (i.e. in case of targeted killings) in non-belligerent
States. In those cases, the icrc believes that ihl shall not be applied (so
as not to risk a theoretical acceptance of a potentially global battlefield),
but that these situations are still covered by customary international
human rights law.33
30 See for instance: J. Dingwall, ‘Unlawful Confinement as a War Crime: The Jurisprudence
of the Yugoslav Tribunal and the Common Core of International Humanitarian Law Ap-
plicable to Contemporary Armed Conflicts’, 9(2) Journal of Conflict and Security Law 133
(2004), at 150; G.S. Corn, ‘Enemy Combatants and Access to Habeas Corpus: Questioning
the Validity of the Prisoner of War Analogy’, 5(2) Santa Clara Journal of International Law
236 (2007), at 260–261.
31 icrc, International Humanitarian Law and the Challenges of Contemporary Armed Con-
flicts (2011), at 15–18.
32 Ibid, at 16.
33 Gaggioli, supra note 9, at 213 (our translation).
In another report, the icrc considers that:
strengthening the legal framework applying to armed conflicts presup-

poses that complementary legal regimes – such as human rights law – are
taken into consideration. The icrc believes that the international law
of human rights applies both in times of peace and armed conflict. It is
therefore essential that any development of humanitarian law avoids all
unnecessary overlap with existing rules of international law, in particu-
lar human rights law. The added value of developing humanitarian law
relates first to the regulation of non-international armed conflicts. Even
though human rights law is applicable in such situations, it does not solve
all humanitarian questions in practice, as it is only binding on States.34
Furthermore, a 2013 document specifies the necessity to take ihrl into ac-
count regarding detention in non-international armed conflict.35 Noting that
ihl only partially regulates this type of deprivation of liberty, the icrc bases
its analysis on ihl and ihrl norms.
So, while ihl remains the principal focus of its activities,36 the icrc rec-
ognizes the importance of ihrl as a complementary legal regime to fill in the
gaps in ihl, i.e. on detention in non-international armed conflict.37
3 The Use of ihl by Regional Human Rights Protection Mechanisms
If there is a trend towards the fertilisation of ihl by ihrl, human rights pro-
tection mechanisms conversely take ihl into account in their case law. To
understand this approach, we will focus on the practice of the IACmHR, the
IACtHR, and the ECtHR.
Inter-American jurisdictions were prompt to consider ihl in their jurispru-
dence. In comparison, the ECtHR faltered, despite some encouraging positions
adopted by the European Commission on Human Rights.38 Consideration of
ihl in the ECtHR case law was, in this sense, rather belated and peripheral.
34 icrc, Strengthening Legal Protection for Victims of Armed Conflicts (2011), at 5.

35 icrc, Strengthening Legal Protection for Persons deprived of their Liberty in relation to
niac, Regional Consultations 2012–2013, Background Paper (2013), at 5.
36 icrc, International Humanitarian Law and the Challenges of Contemporary Armed Con-
flicts (2011).
37 Ibid.
38 Martin, supra note 2.
Regarding the Inter-American situation, Martin explains that the IACmHR

and the IACtHR “approached the problem of ihl enforcement in a more
frontal way since they had to decide on their own competence to enforce ihl
within the scope of article 4 achr which enshrines the right to life”.39 In other
words, the Inter-American approach was “daring”.40 Following several refer-
ences to ihl in its decisions,41 the IACmHR considered itself as competent to
enforce ihl42 and has done so repeatedly.43 Nonetheless, as explained by Gag-
gioli and Martin, since 2000 there have been indications of a changing trend.44
The IACmHR became more conservative and has referred sporadically to ihl
in its individual communications. Moreover, plaintiffs alleging violations in
non-international armed conflicts no longer refer to ihl.45 This new trend has
its roots in the case of Las Palmeras v. Colombia, where the IACtHR states that
itself as well as the Commission do not have competence to enforce ihl.46
Even so, the IACtHR has still referred to ihl – without directly enforcing it – in
several cases.47
For its part, the ECtHR has steadfastly refused to take ihl into account,
even though it would have been useful (and legitimizing) to its reasoning.
39 Ibid, at 130–131 (our translation).

40 Gaggioli, supra note 9, at 169. For an analysis of how the IACtHR takes ihl into account:
H. Tigroudja, ‘The Inter-American Court of Human Rights and International Humanitar-
ian Law’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Hu-
manitarian Law 466 (2013); V. Gowlland-Debbas, G. Gaggioli, ‘The Relationship between
International Human Rights and Humanitarian Law: an Overview’, in R. Kolb, G. Gaggioli
(eds.), Research Handbook on Human Rights and Humanitarian Law 77 (2013); Martin,
supra note 2: H.-J. Heintze, ‘On the Relationship between Human Rights Law Protection
and International Humanitarian Law’, 86(856) irrc (2004), at 802–805.
41 Report, Ccalloccunto v. Peru, Report No. 37/93, IACmHR, 7 October 1993; Report, Martí
de Mejía v. Peru, Report No. 5/96, IACmHR, 1 March 1996; Decision of the Commission as
to the Admissibility, Disabled Peoples’ International et al. v. United States, IACmHR, 22
September 1987; Decision of the Commission as to the Admissibility, Salas et al. v. United
States, Report No. 31/93, IACmHR, 14 October 1993.
42 Report, Ribon Avila v. Colombia, Report No. 26/97, IACmHR, 30 September 1997.
43 E.g. Report, Bustios Saavedra v. Peru, Report No. 38/97, IACmHR, 16 October 1997; Re-
port, Abella v. Argentina (“la Tablada”), Report No. 55/97, IACmHR, 18 November 1997;
Report, Santiz Gomez et al. v. Mexico, IACmHR, Report No. 48/97, 18 February 1998; Report,
Parada Cea et al. v. Salvador, Report No. 1/99, IACmHR, 27 January 1999.
44 Gaggioli, supra note 9, at 171.
45 Ibid.
46 Preliminary Objections, Las Palmeras v. Colombia, IACtHR, 4 February 2000.
47 Merits, Bámaca-Velásquez v. Guatemala, IACtHR, 25 November 2000, para. 207; Merits,
Mapiripán Massacre v. Colombia, IACtHR, 15 September 2005, para. 114; Merits, Ituango
Massacre v. Colombia, IACtHR, 1 July 2006, paras. 179–180; Merits, Vargas Areco v. Para-
guay, IACtHR, 26 September 2006.
It did so even when applicants invoked ihl violations.48 ihl nonetheless un-
derpins some cases concerning Turkey and Chechnya.49 As Martin states, “ihl
remains an ‘ombre chinoise’”.50
However, more recently, the ECtHR has begun to refer more regularly to
ihl. In Markovic et al. v. Italy, the Court referred to ihl (more precisely to api)
to reject the applicants’ claims for reparations.51 In 2008 and 2010, the ECtHR
referred once more to ihl in order to decide whether the principle of legality
under Article 7 of the echr could be violated when individuals were domesti-
cally prosecuted for international crimes that only existed on the international
level at the time of the facts.52 The Court also alluded to ihl in the Varnava et
al. v. Turkey case, stating that
Article 2 must be interpreted in so far as possible in light of the gen-

eral principles of international law, including the rules of international
humanitarian law which play an indispensable and universally accepted
role in mitigating the savagery and inhumanity of armed conflict […].
[I]n a zone of international conflict Contracting States are under obliga-
tion to protect the lives of those not, or no longer, engaged in hostilities.
This would also extend to the provision of medical assistance to the
wounded; where combatants have died, or succumbed to wounds, the
need for accountability would necessitate proper disposal of remains
and require the authorities to collect and provide information about the
identity and fate of those concerned, or permit bodies such as the icrc
to do so.53
As explained by Frumer, “the Court seemed to establish in this field a concilia-

tory interpretation principle. The Court however refrained to explain how this
48 Martin, supra note 2; Gaggioli, supra note 9, at 175–176.

49 Judgment, Güleç v. Turkey, ECtHR, 27 July 1998; Ergi v. Turkey, ECtHR, 28 July 1998; Judg-
ment, Isayeva et al. v. Russia, ECtHR, 24 February 2005; Judgment, Abuyeva et al. v. Russia,
2 December 2010; Judgment, Esmukhambetov et al. v. Russia, ECtHR, 29 March 2011; Judg-
ment, Khamzayev et al. v. Russia, ECtHR, 3 May 2011; Judgment, Kerimova et al. v. Russia,
ECtHR, 3 May 2011.
50 Martin, supra note 2, at 130 (our translation).
51 Judgment, Markovic et al. v. Italy, ECtHR, Grand Chamber, 14 December 2006, paras. 109,
111.
52 Judgment, Kononov v. Latvia, ECtHR, Former Third Section, 24 July 2008; Judgment,
Kononov v. Latvia, ECtHR, Grand Chamber, 17 May 2010; Judgment, Korbely v. Hungary,
ECtHR, Grand Chamber, 19 September 2008.
53 Judgment, Varnava et al. v. Turkey, ECtHR, Grand Chamber, 18 September 2009, para. 185.
conciliation between relevant norms of ihl and of the Convention would ap-
ply in case of contradictions”.54
It was not until Hassan v. United Kingdom in 2014 – which particularly con-
cerned detention – that the ECtHR formulated a tentative explanation of the
relationship between ihl and human rights.55 In the early morning of 23 April
2003, a British military unit went to the residence of Khadim Resaan Hassan –
a former leader of the Baa’th party and a general of the Al-Quds army – to
arrest him.56 The latter had fled and the soldiers instead arrested his brother,
Tarek Resaan Hassan.57 According to the British army, Hassan was stationed
on the roof of the house armed with an assault rifle.58 He was taken to Camp
Bucca, a detention facility administered by the United States, but some parts
of which were used by the United Kingdom to detain and interrogate indi-
viduals.59 While first considered an enemy prisoner of war, Tarek Hassan was
later labelled a civilian following the outcome of a screening process. Military
authorities claim that he was released on 2 May 2003,60 but he was found dead
on 1 September 2003.
At the outset, the Hassan case constituted an opportunity for the ECtHR
to confirm that a State party to the Convention may have extraterritorial juris-
diction in an international armed conflict. Extraterritorial jurisdiction, though
exceptional, is well established in the ECtHR case law and can occur in two
situations. First, when a State effectively controls an area outside its national
territory. Second, when agents of a member State exercise their authority over
individuals within the framework of operations conducted outside national
territory. In the case of Hassan, the judges only considered the authority of
British militaries over Tarek Hassan. They concluded that authority and con-
trol of member States’ agents over foreign individuals did not have to be abso-
lute or exclusive but should be considered in concreto.
More importantly, the judges rejected the United Kingdom’s argument that
they should apply a distinction between situations of occupation (where a
State’s jurisdiction pursuant to Article 1 of the echr could be established) and
situations of active hostilities (where State would rather have to apply ihl).61
The Court stated that the echr and ihl apply in both cases. The Court, which
54 Frumer, supra note 4, at 482–483 (our translation).

55 Judgment, Hassan v. UK, ECtHR, Grand Chamber, 16 September 2014.
56 Ibid, para. 11.
57 Ibid.
58 Ibid.
59 Ibid, paras. 14–17.
60 Ibid, para. 28.
61 Frumer, supra note 4, at 485.
refused to consider ihl as lex specialis, thus followed the trend of simultane-
ous application of ihl and ihrl.62
4 The Case of Detention in Armed Conflict before the ECtHR
The issue of the legality of detention in armed conflicts and more particularly
of the relevant rules (ihrl or ihl) as assessed by the ECtHR is thorny. Follow-
ing an analysis of its case law, three different case studies must be analysed:
first, detention in international armed conflicts; second, the tentative applica-
tion of ihl of international armed conflicts to detention in non-international
armed conflicts; and, finally, the example of non-international armed conflicts.
The first two case studies must be analysed together. On a number of oc-
casions, the ECtHR indeed applied ihl of international armed conflicts,
whether or not the actual conflict qualified as such. However, in our view,
this distinction remains important. We must first take into consideration two
recent and fundamental cases: Al-Jedda v. United Kingdom63 and Hassan v.
United Kingdom.64
Al-Jedda caused a lot of ink to flow.65 In this case, the bench acknowledged
that the United Kingdom violated Article 5 echr regarding detention in a situ-
ation of occupation. ihl was set aside in favour of ihrl, which offered more
protection. The Court decided that ihl does not trigger the derogation mecha-
nism as provided for in Article 5 of the Convention.66
The applicant was detained on imperative grounds of security. In particular,
the British authorities suspected him
to have been personally responsible for recruiting terrorists outside Iraq

with a view to the commission of atrocities there; for facilitating the trav-
el into Iraq of an identified terrorist explosives expert; for conspiring with
that explosives expert to conduct attacks with improvised explosive de-
vices against Coalition Forces in the areas around Fallujah and Baghdad;
62 Ibid, at 490.
63 Judgment, Al-Jedda v. UK, ECtHR, Grand Chamber, 7 July 2011.
64 Hassan, supra note 55.
65 G. Gaggioli, supra note 9; J. Pejić, ‘The European Court of Human Rights’ Al-Jedda Judg-
ment: the Oversight of International Humanitarian Law’, 93(883) irrc (2011); N. Hervieu,
‘La Jurisprudence Européenne sur les Opérations Militaires à l’Epreuve du Feu’, 6 La
Revue des Droits de l’Homme. Revue du Centre de Recherches et d’Etudes sur les Droits
Fondamentaux (2014).
66 N. Hervieu, supra note 65.
and for conspiring with the explosives expert and members of an Islamist
terrorist cell in the Gulf to smuggle high-tech detonation equipment into
Iraq for use in attacks against Coalition Forces. No criminal charges were
brought against him.67
Freed in 2007, the applicant contended to have been detained in violation

of Article 5 of the echr, as detention on security reasons is not listed as a
ground for derogation. According to the government, the detention was legal
since relevant unsc resolutions authorised the multinational force (which the
United Kingdom was part of) to take “all necessary measures to contribute to
the maintenance of security and stability of Iraq”.68 Detention was not listed as
such in Resolution 1546,69 but rather in its annexed letters.70 As stated by Pejić,
In the Government’s view, the UK’s obligations under Article 5 of the

European Convention were displaced by the legal regime established by
Resolution 1546 owing to the operation of Articles 25 and 103 of the UN
Charter. Pursuant to the latter, states’ obligations under the Charter pre-
vail over their obligations under any other international agreement in the
event of a conflict. The Government argued, based on practice and pre-
vailing international law doctrine, that the language of Article 103 can-
not be limited to Security Council resolutions obliging states to act in a
particular way, but also extends to decisions authorizing them to do so (as
Resolution 1546 and the appended letters had done).71
The ECtHR dismissed the British argument and stated that:
The Court has considered whether, in the absence of express provi-

sion in Resolution 1546, there was any other legal basis for the appli-
cant’s detention which could operate to disapply the requirements of
Article 5 § 1 of the Convention. The Government have argued that the
effect of the authorisations in paragraphs 9 and 10 of Resolution 1546
was that the Multinational Force continued to exercise the “specific au-
thorities, responsibilities and obligations” that had vested in the United
States of America and the United Kingdom as Occupying Powers under
67 Al-Jedda, supra note 63, para. 11.

68 Hassan, supra note 55, para. 65.
69 UN Security Council Resolution 1546, 8 June 2004.
71 Pejić, supra note 65, at 840–841.
international humanitarian law and that these “obligations” included

the obligation to use internment where necessary to protect the inhabit-
ants of the occupied territory against acts of violence. Some support for
this submission can be derived from the findings of the domestic courts
(see, for example, Lord Bingham at paragraph 32 of the House of Lords
judgment; see paragraph 20 above). The Court notes in this respect that
paragraph 2 of Resolution 1546 clearly stated that the occupation was to
end by 30 June 2004. However, even assuming that the effect of Resolu-
tion 1546 was to maintain, after the transfer of authority from the cpa
to the interim government of Iraq, the position under international hu-
manitarian law which had previously applied, the Court does not find it
established that international humanitarian law places an obligation on
an Occupying Power to use indefinite internment without trial. Article
43 of the Hague Regulations requires an Occupying Power to take “all the
measures in his power to restore, and ensure, as far as possible, public
order and safety, while respecting, unless absolutely prevented, the laws
in force in the country” (see paragraph 42 above). While the International
Court of Justice in its judgment Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo (drc) v. Uganda) interpreted
this obligation to include the duty to protect the inhabitants of the oc-
cupied territory from violence, including violence by third parties, it did
not rule that this placed an obligation on the Occupying Power to use in-
ternment; indeed, it also found that Uganda, as an Occupying Power, was
under a duty to secure respect for the applicable rules of international
human rights law, including the provisions of the International Covenant
for the Protection of Civil and Political Rights, to which it was a signa-
tory (see paragraph 50 above). In the Court’s view, it would appear from
the provisions of the Fourth Geneva Convention that under international
humanitarian law internment is to be viewed not as an obligation on the
Occupying Power but as a measure of last resort.72
The Court thus concluded that there is no contradiction between the obli-
gations of the United Kingdom stemming from unsc resolutions and those
stemming from the echr. Since the United Kingdom did not derogate, Article
5 echr was violated. The solution envisaged by the ECtHR in this case was
criticized in the doctrine. Authors considered, contrary to the Court’s reason-
ing, that there was a normative conflict and that, therefore, ihl should apply.
The possibility to detain a civilian outside the scope of Article 5 of the echr

should have thus been accepted.73 The Court, however, preferred a protective
approach towards the relationship between ihl and ihrl. States may, how-
ever, derogate from Article 5 echr pursuant to Article 15 of the Convention.74
We must note here that the ECtHR applied ihl as if it was facing an inter-
national armed conflict situation. Still,
Even though Al-Jedda was in fact interned when the armed conflict in
Iraq was non-international in character, the legal regime applied to his
detention by the UK as a result of UN Security Council Resolution 1546
was that prescribed by the Fourth Geneva Convention, an issue that the
Court did not contest in para. 107.75
Although this is not relevant to the reasoning developed by the Court, it will be
relevant for our discussion below.
The other important judgment is the aforementioned case of Hassan v. UK,
which proved to be crucial with regard to detention. In the Al-Jedda case, the
Court only had to decide whether the obligations stemming from unsc reso-
lutions could constitute a derogation within the meaning of Article 5 echr
and it did not have to address the exceptions discussed previously. Conversely,
Hassan was “the first case in which a respondent State has requested the Court
to disapply its obligations under Article 5 or in some other way to interpret
them in the light of powers of detention available to it under international
humanitarian law”.76
The Strasbourg Court began by recognizing that “it does not take the view
that detention under the powers provided for in the Third and Fourth Geneva
Conventions is congruent with any of the categories set out in subparagraphs
(a) to (f) [of article 5 echr]”.77 Subsequently, and following its case law in Al-
Jedda, it could easily have once again condemned the United Kingdom as no
derogation was lodged under Article 15. The judges decided otherwise. Based
on the following (surprising) reasoning, the Court found that:
There has been no subsequent agreement between the High Contracting

Parties as to the interpretation of Article 5 in situations of international
armed conflict. However, in respect of the criterion set out in Article 31 § 3(b)
of the Vienna Convention (see paragraph 34 above), the Court has
73 Gaggioli, supra note 9, at 181.

74 Al-Jedda, supra note 63, para. 100; Hervieu, supra note 65, at 40.
75 Pejić, supra note 65, at 843.
77 Ibid, para. 97.
previously stated that a consistent practice on the part of the High Con-
tracting Parties, subsequent to their ratification of the Convention, could
be taken as establishing their agreement not only as regards interpreta-
tion but even to modify the text of the Convention (see, mutatis mutandis,
Soering v. the United Kingdom, 7 July 1989, §§ 102–103, Series A no. 161 and
Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, echr
2010). The practice of the High Contracting Parties is not to derogate from
their obligations under Article 5 in order to detain persons on the basis
of the Third and Fourth Geneva Conventions during international armed
conflicts. As the Court noted in Banković and Others v. Belgium and Oth-
ers (dec.) [GC], no. 52207/99, § 62, echr 2001-XII, although there have
been a number of military missions involving Contracting States acting
extra-territorially since their ratification of the Convention, no State has
ever made a derogation pursuant to Article 15 of the Convention in re-
spect of these activities. The derogations that have been lodged in respect
of Article 5 have concerned additional powers of detention claimed by
States to have been rendered necessary as a result of internal conflicts or
terrorist threats to the Contracting State (see, for example, Brannigan and
McBride v. the United Kingdom, 26 May 1993, Series A no. 258-B; Aksoy v.
Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI;
and A. and Others v. the United Kingdom [GC], no. 3455/05, echr 2009;
see also paragraphs 40–41 above).78
By adopting this stance, the ECtHR created “a dangerous and unprecedented

benchmark: it accepts that a convergent State practice bases and justifies a
restrictive interpretation of conventional guarantees”.79 The Court thus inter-
preted the echr “in harmony with other rules of international law of which it
forms part”.80 The Court simultaneously enforced ihl and the echr deciding
that
the grounds of permitted deprivation of liberty set out in subparagraphs

(a) to (f) of that provision should be accommodated, as far as possible,
with the taking of prisoners of war and the detention of civilians who
pose a risk to security under the Third and Fourth Geneva Conventions.81
78 Ibid, para. 101.

79 Hervieu, supra note 65, at 46.
81 Ibid, para. 104.
As the dissenting judges outlined, the Court is, in that respect, “judicially creat-
ing a new, unwritten ground for a deprivation of liberty”.82 The ECtHR’s con-
clusion looks like a slippery slope. It leaves the door open to new derogations
from Article 5 echr, which was strictly interpreted hitherto. The Court, how-
ever, restated that detention shall be lawful, i.e. it must be consistent “with the
rules of international humanitarian law and, most importantly, […] it should
be in keeping with the fundamental purpose of Article 5 § 1, which is to protect
the individual from arbitrariness”.83 Whilst Article 5(4) echr provides that
“[e]veryone who is deprived of his liberty by arrest or detention shall be en-
titled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not law-
ful”, the Court interpreted these conventional elements in light of ihl.84 It
considered it to be sufficient that a “competent body” (not a court) “provide[s]
sufficient guarantees of impartiality and fair procedure to protect against
arbitrariness”.85 The judges accordingly concluded that Article 5 had not been
violated by the United Kingdom. The echr may thus still be enforced in inter-
national armed conflicts, but ihl is prioritised over ihrl. In other words, the
Strasbourg Court shelves protection in favour of a damaging pragmatism in
dealing with international armed conflicts.
What happens in cases of non-international armed conflicts? Since deten-
tion in non-international armed conflicts is a rather peculiar situation, it is not
clear whether the ECtHR case law provides solutions. If a law enforcement
orientation is adopted, it could be concluded that ihrl provides better pro-
tection than ihl. As stated by Oswald, “nobody doubts that in particular types
of conflicts, as non-international armed conflicts […], human rights norms
can be more relevant in terms of politics of detention rather than in terms of
legal regulation”.86 Under ihrl, the lawfulness of detention is guaranteed by
Article 5 of the echr and restrictions are limited. On the other hand, as stat-
ed earlier, during non-international armed conflicts, commentators disagree
on whether conventional ihl – i.e. Common Article 3 to the GCs and apii –
provides a clear legal and foreseeable basis for internment.87
82 Partly Dissenting Opinion of Judge Spano, Joined by Judges Nicolaou, Bianku and Kalayd-
jieva, in Hassan, ibid, at 57, para. 18.
83 Hassan, ibid, para. 105.
84 Ibid, para. 106.
85 Ibid.
86 B. Oswald, ‘Controverses Liées à la Détention dans les Opérations Multinationales et
l’Apport des Principes de Copenhague’ 95(3–4) irrc (2013), at 182 (our translation).
87 See: supra Section 1.
To find rules in relation to detention in non-international armed conflict,

one must consider customary ihl, which only stipulates “that any detention
must not be arbitrary”.88 The other rights regarding detention (as set forth in
the echr) are not directly included. Instead, we must look to the icrc Com-
mentary of Common Article 3, which refers to an article written by Pejić.89
In this paper, Pejić refers to ihrl as a basis for, among others, the right to a
remedy before an impartial body.90 Moreover, this is confirmed by the Com-
mentary of Common Article 3:
At the time of writing, however, the question of which standards and

safeguards are required in non-international armed conflict to prevent
arbitrariness is still subject to debate and needs further clarification, in
part linked to unresolved issues on the interplay between international
humanitarian law and international human rights law.
In a non-international armed conflict occurring in the territory of
a State between State armed forces and one or more non-State armed
groups, domestic law, informed by the State’s human rights obligations,
and humanitarian law, constitutes the legal framework for the possible
internment by States of persons whose activity is deemed to pose a seri-
ous security threat.
The question of whether humanitarian law provides inherent author-
ity or power to detain is, however, still subject to debate.91
In the Hassan case, the Strasbourg Court confined its reasoning to interna-
tional armed conflicts. This leaves the protection provided by Article 5 echr
in non-international armed conflicts in fine untouched. The Court expressly
underlined that:
It can only be in cases of international armed conflict, where the tak-

ing of prisoners of war and the detention of civilians who pose a threat
to security are accepted features of international humanitarian law, that
Article 5 could be interpreted as permitting the exercise of such broad
powers.92
88 J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Volume

i: Rules (2005), Rule 99, at 344. 2016 icrc Commentary gci, para. 719. See also: Hill-
Cawthorne, supra note 28, at 98.
89 2016 icrc Commentary gci, para. 723, note 667.
90 Pejić, supra note 65.
91 2016 icrc Commentary gci, paras. 725–727.
The ECtHR thus confirmed that this same interpretation would not be ap-
plicable to non-international armed conflicts. Consequently, during external
military operations in non-international armed conflicts, States would not be
allowed to reduce Article 5 protection, except if Article 15 is triggered. The Has-
san case – even though it can be criticized in a number of ways93 – prevents
an excessively frequent use of Article 15 by States, which could result in the
development of State practice that would shield individuals from the protec-
tion of Article 5. Instead, it maintains the protection provided by Article 5 in
non-international armed conflicts. The bench therefore agrees with Al-Jedda,
whose reasoning applies to non-international armed conflicts.
5 Conclusion
As argued above, the use of the other branch of norms by organs which imple-
ment ihl or ihrl is first of all a question of legitimisation in order to ensure
better protection. The ECtHR applies the same approach when dealing with
detention: in non-international armed conflicts, the discernible trend is for
the ECtHR’s judges to favour the highest degree of protection of individuals
over any lex specialis. Moreover, since the legal basis for detention in non-
international armed conflict is not clearly based in ihl, the ECtHR uses spe-
cifically and almost exclusively ihrl in order to protect detainees, without,
however, completely omitting ihl. In the wake of this ECtHR jurisprudence,
the British domestic courts were not misled. In the case Serdar Mohammed
and other v. Secretary of State for Defence,94 decided on 30 July 2015, the Court
of Appeal of England and Wales follows this interpretation and the Hassan
case law. The judges decided that:
In our view, the reasoning in Hassan can be extended to a situation

of a non-international armed conflict such as that with which we are
concerned only if in a non-international armed conflict international
humanitarian law provides a legal basis for detention.95
Noting the silence of ihl on the issue of detention in non-international armed

conflicts, the English judges considered “that if humanitarian law does not
93 Hervieu, supra note 65; Frumer, supra note 4.

94 Appeal Judgment, Serdar Mohammed and others v. Ministry of Defence, ewca Civ 843,
United Kingdom, England and Wales High Court, 30 July 2015, paras. 164–253.
95 Ibid, para. 13.
forbid detention in case of non-international armed conflict, this does not

equal to authorization”.96 Moreover, they stated that the “‘absence of prohi-
bition equals authority’ approach has, however, been much criticised and is
considered to be outdated”.97 In other words,
the Court of Appeal rejects the argument of an implicit authorisation of

conventional humanitarian law (§214 et s.). In the absence of a concur-
ring state practice, the judges refute the existence of a customary rule
that would constitute a legal basis to the plaintiff’s detention (§242 et s.).
Henceforth, since there is no legal basis to the detention, the latter is con-
trary to article 5 of the echr.98
This is reminiscent of the ECtHR case law in which questions and facts re-
garding non-international armed conflicts arose. In these cases, the Strasbourg
Court – maybe so as not to offend the States that do not recognise the exis-
tence of an armed conflict on their territory – neither referred to ihl nor tried
to qualify the armed conflict. The echr was simply applied without further
specification.99
Still, the British judges went further and set Article 15 aside. At least, they
considered that “even if Article 5 had to be modified to reflect the fact that this
detention was in the course of a non-international armed conflict, the mini-
mum procedural safeguards required by international law in such a conflict
would not have been met”.100 The ECtHR did not follow the same reasoning in
the Hassan case, because the judges did not – as indicated in the introduction –
feel compelled to enforce conventional ihl. Hopefully, the English judgment
will provide food for thought for the ECtHR in dealing with detention in non-
international armed conflicts.
96 V. Souty, ‘Quelques Réflexions à Propos de l’Arrêt Serdar Mohammed vs Secretary of State

[2015] ewca Civ 843’, available at: http://www.fondamentaux.org/2015/08/15/quelques
-reflexions-a-propos-de-larret-serdar-mohammed-vs-secretary-of-state-2015-ewca
-civ-843/ (our translation).
97 Serdar Mohammed and others v. Ministry of Defence, supra note 94, para. 197.
98 Souty, supra note 96 (our translation).
99 Cf. Turkish and Russian cases.
100 Serdar Mohammed and others v. Ministry of Defence, supra note 94, para. 298.
International Humanitarian Law in the
Jurisprudence of International Criminal
Tribunals and Courts
Alessandra Spadaro*
Abstract
The creation of the Ad Hoc Tribunals for the former Yugoslavia and Rwanda marked a
new beginning in the close relationship between international criminal law and ihl.
This essay argues that, notwithstanding the contribution that some judgments ren-
dered by international criminal tribunals and courts have given to the general under-
standing and perception of ihl, this process has not been free of obstacles. In fact, it
will be shown that the way international criminal tribunals and courts have interpret-
ed relevant ihl rules has not always been in line with this body of law’s objectives and
content. The author discusses both early and recent jurisprudential developments,
with a view to emphasizing some of the most problematic aspects of the interpreta-
tion and application of ihl by international criminal courts.
1 Introduction: The Judicial Interpretation of ihl between Cautious

Optimism and Arrested Development
Sir Hersch Lauterpacht famously wrote that “if international law is, in some
ways, at the vanishing point of law, the law of war is, perhaps even more con-
spicuously, at the vanishing point of international law”.1 He then called on
international lawyers to “continue to expound and to elucidate the various as-
pects of the law of war […] the only firm hope being that a world may arise in
which no such calls will claim [their] zeal”.2
Since the end of the Second World War, the opportunity to expound and
to elucidate the content and scope of ihl was seized by the international
* Alessandra Spadaro is a PhD Candidate in International Law, Graduate Institute of Interna-

tional and Development Studies. The author would like to thank Professor Paola Gaeta for
her inputs and comments on a previous draft. The views expressed are those of the author
alone and do not necessarily reflect the views of any institution the author is affiliated with.
1 H. Lauterpacht, ‘The Problem of the Revision of the Law of War’, 29 bybil (1952), at 382.
2 Ibid.

136 Spadaro
criminal tribunals that were established to try and punish crimes of concern to
the international community committed during the war. However, it was not
until the 1990s, with the creation of the icty and ictr, that the contribution
of some judgments, rendered in the context of international criminal trials,
started to fundamentally shape the way ihl is generally understood and stud-
ied today, as made evident by the numerous references to the case law of these
and other international criminal courts in any textbook on the subject. This,
however, has come at a cost. As Anderson noted, the criminal aspects of ihl
seem to have swallowed the rest of the rules, even though the majority of the
rules of ihl do not concern matters of individual criminal responsibility and
their violation is not necessarily criminalized.3 Rather than a punitive content,
most ihl provisions have in fact a humanitarian character in the literal sense,
which is to prevent and mitigate suffering in times of war by regulating the
conduct of belligerents.4
The laws of war were primarily created by States to regulate their violent
interactions, and only later were they expanded to cover conflicts to which
non-State actors participate, while not legitimizing their armed struggle. The
pragmatism of ihl lies in providing belligerents with a legitimate yet restric-
tive framework for achieving their military aims. At the same time, ihl is not
a body of law designed to be interpreted in the courtroom, but rather needs to
be flexible enough to be understood and realistically applied by soldiers on the
battlefield. This might explain why ihl rules are generally vaguely formulated
and leave room for different interpretations. On the contrary, criminal provi-
sions, including those criminalizing violations of ihl, must be punctual and
strictly formulated. This divergence between criminal and ihl rules explains
why it is important not to conflate the application of a criminal provision with
the interpretation of the corresponding humanitarian rule, keeping in mind
that the former may not always be in line with the purposes of the latter.5
The fact that ihl is directly binding on individuals was recognized in crimi-
nal jurisprudence already in the Einsatzgruppen judgment by the US Military
Tribunal in Nuremberg, which noted how “[n]ations can act only through
human beings”.6 While it is true that violations of ihl are committed by
3 K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Conse-
quences’, 20(2) ejil (2002), at 346–347.
4 Lauterpacht, supra note 1, at 363–364.
5 See for instance: S. Sivakumaran, ‘Re-Envisaging the International Law of Internal Armed
Conflict’, 22(1) ejil (2012), at 239; D. Robinson, ‘The Identity Crisis of International Criminal
Law’, 21(4) ljil (2008), at 946.
6 Judgment, The United States of America against Otto Ohlendorf et al (The Einsatzgruppen
case), Case No. 9, US Military Tribunal ii, Trials of War Criminals before the Nuremberg
IHL in the Jurisprudence of International Criminal Tribunals 137
individuals, who must bear individual responsibility for their actions, armed
conflicts are collective phenomena, and such collective character is reflected
in the corresponding legal regime: most rules of ihl are directed at belliger-
ents, States and organized armed groups, rather than at individuals.7
The emphasis on the criminality of certain violations of ihl makes the
war paradigm shift from the collective to the individual plane.8 The criminal
enforcement of ihl rules necessarily results in their individualization, which
is “the process through which international rules formed to regulate the be-
haviour of States and other collective entities recognized as subjects of in-
ternational law are applied directly to individuals”.9 This is indispensable to
ascertain whether the alleged crimes have been committed, and may even have
a “cathartic or healing effect” for the affected communities.10 However, the
question arises of whether the rules of ihl so interpreted by tribunals whose
primary aim is to punish individuals, rather than the exegesis of humanitarian
treaties, can and do reflect the reality of the battlefield.11 The regulation of war
requires pragmatism: aspirational rules will remain dead letter if belligerents
cannot feasibly implement them.
Especially since the establishment of the icty and ictr, the mainstream
narrative regarding ihl rules, as interpreted by international criminal tribu-
nals and courts, has been one of progress.12 However, the standard against
which such development is assessed must be carefully chosen, particularly in
Military Tribunals under Control Council Law No. 10, Volume IV/1 (October 1946–April
1949), at 460.
7 Anderson, supra note 3, at 346.
8 Ibid, at 348.
9 P. Gaeta, ‘The Interplay between the Geneva Conventions and International Criminal
Law’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Com-
mentary (2015), at 740.
10 A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of
Breaches of International Humanitarian Law’, 9(1) ejil (1998), at 9.
11 R. Bartels, ‘Discrepancies between International Humanitarian Law on the Battlefield and
in the Courtroom: The Challenges of Applying International Humanitarian Law during
International Criminal Trials’, in M. Matthee, B. Toebes, M. Brus (eds.), Armed Conflict
and International Law: In Search of the Human Face (2013), at 4.
12 See for instance: C. Greenwood, ‘The Development of International Humanitarian Law by
the International Criminal Tribunal for the Former Yugoslavia’, in Max Planck Yearbook of
United Nations Law, Vol. ii (1998), at 114 et seq; S.C. Breau, ‘The Contribution of the Spe-
cial Court for Sierra Leone to the Development of International Humanitarian Law’, 34(4)
Commonwealth Law Bulletin (2008); S. Darcy, ‘Bridging the Gaps in the Laws of Armed
Conflict? International Criminal Tribunals and the Development of Humanitarian Law’,
in N. Quénivet, S. Shah-Davis (eds.), International Law and Armed Conflict – Challenges
in the 21st Century (2010), at 319.
138 Spadaro
light of the nature and aims of ihl. This chapter aims at unearthing the con-
tradictions, downsides, and fallacies in the case law of international criminal
courts and tribunals regarding specific rules of ihl. It will leave aside issues
such as the role of judicial decisions as sources of international law and of judi-
cial activism.13 It will be shown that, notwithstanding the great importance of
the case law of international criminal courts and tribunals, the judicial inter-
pretation of ihl might be a hit-and-miss affair, sometimes resembling arrested
development rather than actual progress. This analysis will be conducted in a
necessarily piecemeal fashion, by examining some problematic aspects of the
case law on the classification of the conflict and related questions, and then
by focusing on some recent decisions regarding the concept of direct/active
participation in hostilities and intra-party violence.
2 The Definition of Armed Conflict and Related Issues
2.1 Filling the Gaps of Treaty Law

Although the term war is still commonly used, legally speaking it has been
supplanted by the expression armed conflict since the adoption of the GCs in
1949.14 The definition of this notion, as well as the classification of the armed
conflict as either international or non-international, are crucial, as it is well
established that some significant differences still exist in the regulation of
the two types of conflicts. Nonetheless, the general term armed conflict is not
defined in the GCs. Common Article 2 GCs contains no definition of interna-
tional armed conflict (“iac”) and of occupation, nor does Common Article 3
GCs define non- international armed conflict (“niac”).15 The contribution of
13 On these issues, See for instance: S. Darcy, Judges, Law and War. The Judicial Development
of International Humanitarian Law (2014); A. Marston Danner, ‘When Courts Make Law:
How the International Criminal Tribunals Recast the Laws of War’, 59(1) Vand. L. Rev. 1
(2006).
14 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Ameliora-
tion of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners
of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian
Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950).
15 Treaty law provides a lower threshold for niac in Article 1 apii, which is considered valid
for Common Article 3 niac as well: “internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar nature” do not amount
to armed conflicts and are thus not covered by ihl. According to the 2016 icrc Commen-
tary gci, Common Article 3 (footnote 1), the absence of a definition of non-international
international criminal courts and tribunals, and in particular of the jurispru-

dence of the icty, to outlining the contours of these notions and filling the
treaty law gap has been fundamental, albeit not unproblematic.
In the well-known and ground-breaking Decision on Jurisdiction delivered
in the Tadić case, the icty Appeals Chamber found that “an armed conflict
exists whenever there is a resort to armed force between States or protract-
ed armed violence between governmental authorities and organized armed
groups or between such groups within a State”.16 Despite its brevity, this formu-
la, which refers to iac in the first part and to niac in the second, was met with
widespread favour and has since been consistently echoed in scholarship17 and
jurisprudence,18 and endorsed by the icrc.19
2.2 Non-international Armed Conflict and Protracted Armed Violence

According to the Tadić dictum, the two fundamental and cumulative elements
for a niac to exist are (i) the existence of a protracted armed confrontation
between (ii) a State and an organized armed group or between organized
armed groups.
The meaning of the second requirement is quite straightforward. While
organization is presumed for governmental armed forces, courts have estab-
lished that this criterion must be assessed on a case-by-case basis with respect
to the armed group, having regard, for example, to the existence of a command
structure and disciplinary rules, the control of territory, the ability to have
access to weapons and to plan a concerted military activity, and the ability to
armed conflict in Common Article 3 was initially deemed problematic by Portugal, which
entered a reservation with respect to Common Article 3 when signing the GCs, and which
it only withdrew upon ratification.
16 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v.
D. Tadić, icty, Appeals Chamber, 2 October 1995, para. 70 (hereinafter Tadić Decision on
Jurisdiction).
17 See for instance: L. Moir, ‘The Concept of Non-International Armed Conflict’, in A.
Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary
(2015), at 394.
18 See for instance: Judgment, Prosecutor v. Delalić, Mucić, Delić and Landžo (hereinafter
referred to as the Čelebići case), icty, Trial Chamber, 16 November 1998, para. 183; Judg-
ment; Prosecutor v. Limaj, Bala and Musliu, icty, Trial Chamber, 30 November 2005, para.
84; Judgment, Prosecutor v. Orić, icty, Trial Chamber, 30 June 2006, para. 254; Judgment,
Prosecutor v. Akayesu, ictr, Trial Chamber, 2 September 1998, para. 619; Judgment and
Sentence, Prosecutor v. Rutaganda, ictr, Trial Chamber, 6 December 1999, para. 92; Judg-
ment pursuant to Article 74 of the Statute, Prosecutor v. Lubanga Dyilo, icc, Trial Cham-
ber, 14 March 2012, para. 533; Judgment, Prosecutor v. Sesay, Kallon and Gbao, scsl, Trial
Chamber i, 2 March 2009, para. 95.
140 Spadaro
conclude agreements.20 This prerequisite, however, needs not to be confused

with the degree of organization and requirements for apii to apply,21 nor with
the degree of organization needed in order to establish the criminal responsi-
bility of superiors for the acts of their subordinates.22
The scope of the first element of the Tadić definition of niac is more am-
biguous. Literally, the adjective protracted indicates duration. However, if du-
ration were in fact one of the criteria for the existence of a niac, the issue of
how long armed violence must last before the applicability of ihl is triggered
would need to be solved. It may be a matter of days, weeks, or months before
one could assess the existence of a niac and thus the applicability of relevant
ihl rules.23 In turn, this would cause uncertainty as to which operations are
covered by ihl, especially at the beginning of a conflict, and is extremely prob-
lematic with respect to the criminality of actions committed in the early stages
of the hostilities.
Nevertheless, the adjective protracted was rarely understood in its literal
meaning indicating the extension in time of armed violence.24 Rather, in most
cases, this term has been interpreted as referring to the intensity of the hos-
tilities.25 The hostilities’ duration has instead been considered as one of the
indicia that the armed confrontation has reached the intensity threshold for
the existence of a niac, together with other elements, e.g. the types of weapon
used, the involvement of the unsc, and the number of casualties caused by
fighting and of troops deployed.26 These factors, which are merely indicative
of the intensity of the hostilities, do not need to exist concurrently.27 Moreover,
in various cases, it was established that the oscillation of the intensity of the
20 Judgment, Prosecutor v. Haradinaj, Balaj and Brahimaj, icty, Trial Chamber i, 3 April
2008, para. 60; Judgment, Prosecutor v. Boškoski and Tarčulovski, icty, Trial Chamber ii,
10 July 2008, para. 195; Judgment, Prosecutor v. Lubanga, supra note 18, para. 537.
21 Judgment, Prosecutor v. Boškoski, supra note 20, para. 197.
22 Judgment, Prosecutor v. Limaj, supra note 18, para. 89.
23 Notably, the IACtHR found that armed confrontations spanning only 30 hours amounted
to a niac. See: Judgment, Juan Carlos Abella v. Argentina, IACtHR, 18 November 1997,
paras. 154–156.
24 See for instance: Judgment, Prosecutor v. Kordić and Čerkez, icty, Appeals Chamber, 17
December 2004, para. 341 (“serious fighting for an extended period of time”).
25 Judgment, Prosecutor v. Tadić, icty, Trial Chamber, 7 May 1997, para. 562; Judgment, Pros-
ecutor v. Haradinaj, supra note 20, paras. 39, 49; Judgment, Prosecutor v. Boškoski, supra
note 20, para. 177. See also: Judgment, Prosecutor v. Brima, Kamara and Kanu, scsl, Trial
Chamber ii, 20 June 2007, para. 244.
26 Judgment, Prosecutor v. Boškoski, supra note 20, paras. 177–178.
27 S. Vité, ‘Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts
and Actual Situations’, 91(873) irrc (2009), at 77.
armed confrontation does not entail the end of applicability of ihl, which on
the contrary continues to apply until a peaceful settlement is achieved.28
The icc Statute’s definition of niac is similar to the Tadić one, although
Article 8(2)(f) uses the formulation “protracted armed conflict” in lieu of pro-
tracted armed violence. According to some scholars, while this definition
does not modify existing ihl thresholds, as it is rather limited to the scope
of jurisdiction of the icc, it creates a new category of niac characterized by
a temporal element of protraction.29 Others, however, argue that the thresh-
old of Article 8(2)(f) of the Rome Statute should be considered the same as in
Common Article 3 GCs, based on the Tadić definition and the subsequent in-
terpretation of the niac constitutive elements of organization and intensity.30
The latter conclusion seems more convincing, considering that the icc has
consistently relied on icty case law and definitions, in order to assess the exis-
tence of a niac, without highlighting differences between the concept of niac
contained in the Rome Statute and the one under ihl as interpreted by the
icty.31
2.3 International Armed Conflict and the Overall Control Test

The abovementioned Tadić definition of iac is in line with the interpretation
that scholars and the icrc have given to this concept, which entails that a low
threshold of violence is needed for relevant ihl rules to apply to armed clash-
es between States.32 The Tadić case also allowed the icty judges to further
elaborate on the concept of iac, thanks to the creation of the overall control
test, which was used by the icty Appeals Chamber to classify the conflict be-
tween the armed forces of the Republika Srpska, which were controlled by the
Federal Republic of Yugoslavia (fry), and the central authorities of Bosnia and
Herzegovina, as an iac.33
28 Tadić Decision on Jurisdiction, supra note 16, para. 70; Judgment, Prosecutor v. Haradinaj,
supra note 20, para. 100; Judgment, Prosecutor v. Gotovina, Čermak and Markač, icty,
Trial Chamber i, 15 April 2011, para. 1694.
29 Vité, supra note 27, at 82–83.
30 Moir, supra note 17, at 395–396.
31 See for instance: Judgment, Prosecutor v. Lubanga, supra note 18, para. 506; Judgment pur-
suant to Article 74 of the Statute, Prosecutor v. Katanga, icc, Trial Chamber ii, 7 March
2014, para. 1187.
32 2016 icrc Commentary gci, paras. 218, 236–244; A. Clapham, ‘The Concept of Interna-
tional Armed Conflict’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Con-
ventions: A Commentary (2015), at 12; D. Carron, L’Acte Déclencheur d’un Conflit Armé
International (2016), at 233.
33 Judgment, Prosecutor v. Tadić, icty, Appeals Chamber, 15 July 1999, para. 162 (hereinafter
Tadić Appeals Judgment).
142 Spadaro
Departing from the effective control test, which had been used by the icj in
the Nicaragua case to attribute the conduct of a group or of private individuals
to a State, the icty Appeals Chamber held that, based on the principles of the
law on State responsibility, the correct standard was instead the overall con-
trol test. This test does not require specific instructions to be issued by a State,
in order for it to be considered to control and consequently be responsible
for the acts carried out by “an organized and hierarchically structured group
in armed conflict”.34 Under this test, the responsibility of the State is engaged
“whether or not each of [the activities of the armed group] was specifically
imposed, requested or directed by the State”.35 However, the icty Appeals
Chamber failed to clearly define the contours of the notion of overall control,
as well as to elaborate on the ihl obligations of an armed group under the
overall control of a State. Additionally, the adoption of the overall control test
generated a division that is unlikely to be healed anytime soon between the
jurisprudence of the icty and that of the icj. The latter, in the Genocide case,
distinguished between two attribution tests under the law of State responsibil-
ity: the complete dependence test (for persons, groups of persons, and entities)
and the effective control test (for single actions and operations), albeit without
ruling out the usefulness of the overall control test for the classification of an
armed conflict.36
However, accepting – as the icj seems to suggest – that different tests might
exist for the assessment of State responsibility and the classification of a con-
flict as international, may cause absurd consequences. For instance, a State
may at the same time be considered involved in an iac by virtue of its overall
control on an armed group, and still not face any consequences under the law
of State responsibility for violations of ihl, if the effective control or complete
dependence test are not met, thus effectively benefitting from an accountabil-
ity gap.
34 Judgment, Case Concerning Military and Paramilitary Activities in and against Nicara-
gua (Nicaragua v. United States of America), icj, 27 June 1986, para. 115; Tadić Appeals
Judgment, supra note 33, para. 120.
35 Tadić Appeals Judgment, supra note 33, para. 122.
36 Judgment, Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj, 26 February
2007, at 43, paras. 392, 397, 404–406. Notably, the overall control test has been endorsed
by the icrc (2016 icrc Commentary gci, para. 273) and has been adopted by the icc
(Judgment, Prosecutor v. Lubanga, supra note 18, para. 541; Decision on the Confirma-
tion of Charges, Prosecutor v. Lubanga Dyilo, icc, Pre-Trial Chamber i, 29 January 2007,
para. 211).
2.3.1 Protected Persons under gciv

Classifying the conflict as international in the Tadić case, in turn, opened to
the application of the grave breaches regime, which only pertains to iac, given
that grave breaches are committed against protected persons, a category which
does not exist in niac. Civilians qualifying as protected persons are defined
in Article 4 gciv as “those who, at a given moment and in any manner what-
soever, find themselves, in case of a conflict or occupation, in the hands of
a Party to the conflict or Occupying Power of which they are not nationals”.
In the Čelebići trial judgment, the icty decided to interpret Article 4 gciv as
to cover the broadest category of persons possible, regardless of their nation-
ality.37 In fact, a literal interpretation of Article 4 gciv would make it inap-
plicable in cases where accused and victims shared the same nationality. In
Tadić, the icty Appeals Chamber, emphasizing the importance of substantial
relations over formal bonds in inter-ethnic conflicts, reasoned that the gciv’s
object, purpose and preparatory works suggest that allegiance to a party to the
conflict, rather than nationality, is the adequate standard for the interpretation
of the concept of protected persons.38
In a subsequent case, the icty Trial Chamber then specified that, in an in-
ter-ethnic conflict, ethnicity may be regarded as the decisive factor to assess
allegiance to a party and thus establish the status of the victims as protected
persons.39
The adoption of allegiance in lieu of nationality, as the determining fac-
tor for the identification of protected persons under Article 4 gciv in Tadić,
would have not been necessary, if one had considered that the victims, who
were Bosnian Muslims, were in fact in the hand of de facto organs or agents
of the fry, a State of which they were not nationals, because of the overall
control that the fry exercised on the Bosnian Serb armed forces.40 However,
this would have implied that, if the same atrocities had been committed by the
government army of Bosnia and Herzegovina against Bosnian Serb civilians,
the latter would not have been considered as protected persons under gciv,
because victims and perpetrators were all Bosnian nationals.41 The criterion of
37 Trial Judgment, Čelebići case, supra note 18, paras. 250, 263.
38 Trial Judgment, Prosecutor v. Tadić, supra note 25, paras. 164–166.
39 Judgment, Prosecutor v. Blaškić, icty, Trial Chamber, 3 March 2000, para. 127.
40 M. Sassòli, L. Olson, ‘The Judgment of the icty Appeals Chamber on the Merits in the
Tadic Case. New Horizons for International Humanitarian Law?’ 82(839) irrc (2000),
at 742–743.
41 Ibid.
144 Spadaro
allegiance solves precisely this asymmetry problem, which had already been
foreseen in the Tadić Decision on Jurisdiction.42
Reading the allegiance criterion into Article 4 gciv, however, overstretches
the rules on treaty interpretation and generates a number of serious practical
problems. First, recourse to a teleological interpretation of the term nationals,
and to subsidiary means of interpretation, seems at the very least superfluous
given the clarity of Article 4 gciv, which, interpreted in good faith based on
its ordinary meaning pursuant to Article 31(1) vclt, evidently speaks of citi-
zenship rather than of allegiance.43 Moreover, the drafters of the GCs chose
nationality as the standard to identify protected persons, precisely to comply
with the recognized principle of international law of non-interference in the
relations of a State with its own nationals.44
Albeit this principle has ever since been largely softened by the advent of
human rights, this shows that reliance on the preparatory works of the Con-
vention, to support the adoption of the allegiance criterion, is misplaced.
Moreover, scholars have noted that allegiance is a volatile notion: it is more
difficult to determine than nationality, it should be assessed on a case-by-case
basis, and it can change during the conflict.45 It would also be very unwise (if
not plainly dangerous) for those in the hands of a State party to a conflict to
proclaim their allegiance to a foreign State, in order to be considered protected
persons under the gciv.46 Lastly, it is doubtful whether in the circumstances
of that case, the accused could have been aware of the protected persons sta-
tus of his victims, based on such an expansive and unprecedented reading of
Article 4 gciv. At the very least, this is an example of ex post facto interpreta-
tion and of individualization of a rule that does not necessarily accord with
the character of ihl, which is at once protective and pragmatic, nor with the
drafters’ intentions.
42 Tadić Decision on Jurisdiction, supra note 16, para. 76.

43 M. Sassòli, J. Grignon, ‘Les Limites du Droit International Pénal et de la Justice Pénale
International dans la Mise en Œuvre du Droit International Humanitaire’, in A. Biad,
P. Tavernier (eds.), Le Droit International Humanitaire Face aux Défis du XXIe siècle
(2012), at 150.
44 1958 icrc Commentary gciv, at 46–47.
45 Sassòli, Grignon, supra note 43, at 150. See also: R.R. Baxter, ‘Ius in Bello Interno: The Pres-
ent and Future Law’, in J. Norton Moore (ed.), Law and Civil War in the Modern World
(1974), at 531 (“how can this status by analogy be determined, when allegiance of civil-
ians is sought by both belligerents and cannot be readily ascertained in individual cases?
Nationality is a fixed status; loyalty or allegiance is quite another thing”).
46 M. Sassòli, ‘Humanitarian Law and International Criminal Law’, in A. Cassese (ed.), The
Oxford Companion to International Criminal Justice (2009), at 119.
In spite of these criticisms, this interpretation of Article 4 gciv is not com-

pletely void of merit, in so far as it aims at expanding the scope of protection
of ihl. However, the application of the allegiance criterion, in lieu of the na-
tionality one, should be limited to cases regarding conflicts, akin to the one in
the context of which this standard was formulated, i.e. (inter-ethnic) wars by
proxy, which are prima facie niac classified as iac, due to the overall control
of a foreign State on the armed group participating to the conflict. Unlike what
was more recently decided by the eccc, which considered some Cambodi-
ans (who were detained and executed by the Communist Party of Kampuchea,
because of their real or perceived allegiance to Vietnam) as protected persons
under gciv,47 for traditional iac, involving two or more States directly en-
gaged in hostilities against each other, the nationality requirement would still
need to be met.
2.3.2 Territorial Control by Armed Groups and Occupation by Proxy

Another significant change in the way in which ihl has been understood,
following the Tadić Decision on Jurisdiction, is the convergence between the
regulation of iac and that of niac.48 That decision encouraged a trend of
analogy between the rules of iac and niac, and initiated the blurring of the
distinction between the two types of conflict. This has also been confirmed
by the icrc Study on Customary ihl, which identified between 136 and 141
customary rules (out of a total of 161), as applicable in both types of conflicts.49
One of the areas in which the iac/niac dichotomy persists is the law of
occupation, which is only applicable in the context of an iac.50 The inappli-
cability of the law of occupation in niac was correctly acknowledged by the
scsl, which distinguished between, on the one hand, the legal regime appli-
cable in iac to belligerent occupation and, on the other hand, the rules of apii
applicable in niac, when an armed group controls parts of a State’s territory.51
Surprisingly, in the recent Al Faqi Al Mahdi case, the icc Pre-Trial Chamber
47 Judgment, Prosecutor v. Kaing Guek Eav alias Duch, eccc, Trial Chamber, 26 July 2010,
para. 426.
48 Tadić Decision on Jurisdiction, supra note 16, paras. 98, 126.
49 M. Sassòli, L.M. Olson, ‘The Relationship between International Humanitarian and
Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in
Non-International Armed Conflicts’, 90(871) irrc (2008), at 602, citing J.-M. Henckaerts,
L. Doswald-Beck, Customary International Humanitarian Law (2005).
50 R. Kolb, S. Vité, Le Droit de l’Occupation Militaire. Perspectives Historiques et Enjeux
Juridiques Actuel (2009), at 73. See also: Baxter, supra note 45, at 531 (“it is the essence of
belligerent occupation that it should be exercised over foreign, enemy territory”).
51 Judgment, Prosecutor v. Sesay, supra note 18, paras. 982–983.
146 Spadaro
repeatedly referred to the city of Timbuktu, which was under the control of
two armed groups in the context of a niac, as being occupied.52 In the absence
of a clear reference to the applicability of the law of occupation, a good faith
reading of the Pre-Trial Chamber’s reasoning suggests that the term occupation
might have simply been used by the court carelessly and in spite of its clear
legal connotations. However, such an inaccuracy in an icc decision is no less
troubling or regrettable than implying that military occupation is possible in
niac.
The fact that occupation can only occur in iac does not rule out the pos-
sibility for an armed group to be directly involved in the occupation of a State’s
territory. If an armed group is controlled by a State, nothing logically prevents
it from being used as a proxy to occupy another State’s territory. However, one
should not overlook the fundamental distinction between a State’s overall
control of an armed group and the effective control exerted over foreign ter-
ritory through that same armed group.53 The term effective control, which is
not found in treaty law, is considered as the central element of the concept
of military occupation and implies that the occupying power must be able to
exert authority over the occupied territory.54 As explained by the US Military
Tribunal in Nuremberg in the Hostages case,
an occupation indicates the exercise of governmental authority to the ex-

clusion of an established government. This presupposes the destruction
of the organized resistance and the establishment of an administration
to preserve law and order. To the extent that the occupant’s control is
maintained and that of the civil government eliminated, the area will be
said to be occupied.55
The centrality of this additional element of control was acknowledged by the

icty in the Naletilić case, in which the Trial Chamber found that “there is an
52 See: Decision on the Confirmation of Charges, Prosecutor v. Al Faqi Al Mahdi, icc,

Pre-Trial Chamber i, 24 March 2016, paras. 4, 30, 44–45, 55.
53 Such distinction seems to be implied in: Review of the Indictment pursuant to Rule 61 of
the Rules of Procedure and Evidence, Prosecutor v. Rajić, icty, Trial Chamber, 13 Septem-
ber 1996, para. 40.
54 Y. Dinstein, The International Law of Belligerent Occupation (2009), at 43–44; T. Ferraro,
‘Determining the Beginning and End of an Occupation under International Humanitar-
ian Law’, 94(885) irrc (2012), at 139–142.
55 Judgment, Hostages Trial – Trial of Wilhelm List and Others, United States Military Tribu-
nal, 8 July 1947–19 February 1948, Law Reports of Trials of War Criminals, Vol. viii (1948),
at 55 (hereinafter Hostages case).
essential distinction between the determination of a State of occupation and

that of the existence of an international armed conflict. The application of the
overall control test is applicable to the latter. A further degree of control is
required to establish occupation”.56 The jurisprudence of the icty thus sug-
gests that it is possible for a State to occupy another State’s territory by proxy,
provided that overall control of the armed group is coupled with effective au-
thority over the foreign territory.57 However, the contours of occupation by
proxy remain blurry, especially with respect to whether the armed group used
as proxy is effectively able to comply with the obligations that the law of occu-
pation, traditionally designed to apply to States only, imposes on the occupy-
ing power.58
3 Direct/Active Participation in Hostilities and Intra-Party Violence
3.1 Direct and Active Participation in Hostilities: Two of a Kind?

The concept of direct participation in hostilities (dph) relates to the funda-
mental distinction between civilians and combatants under ihl. ihl, in both
its Hague Law and Geneva Law declinations, only protects civilians (in so far
as they do not take part in hostilities) and combatants who are placed hors de
combat and thus no longer take part in hostilities.
Thus, it is crucial that the concept of dph is correctly understood and
applied, and, for the purposes of this essay, it is interesting to see how interna-
tional criminal courts and tribunals have interpreted (or misinterpreted) this
concept, including in some recent decisions.
56 Judgment, Prosecutor v. Naletilić and Martinović, icty, Trial Chamber, 31 March 2003,
para. 214.
57 Occupation by proxy seems to be considered feasible also by the icj, which analysed the
issue of whether Uganda was an occupying areas outside Ituri, by virtue of its control over
the Congolese rebel groups in the Case Concerning Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda), Judgment, icj, 19 December
2005, at 168, para. 177. The concept of indirect effective control was also met with approval
by the experts who participated in the meetings regarding occupation and other forms
of administration of foreign territory organized by the icrc. See: T. Ferraro (ed.), Expert
Meeting. Occupation and Other Forms of Administration of Foreign Territory (2012),
at 10, 23.
58 See: T. Gal, ‘Unexplored Outcomes of Tadić. Applicability of the Law of Occupation to
War by Proxy’, 12 jicj (2014), at 72–75, proposing a graded (or functional) application of
the law of occupation to armed groups, depending on their effective ability to comply
with the law, as opposed to an all-or-nothing application.
148 Spadaro
Various ihl treaty provisions speak of direct or active participation in

hostilities without providing a definition thereof.59 The ictr Trial Chamber
in Akayesu stated that the two terms are synonyms,60 and the same is main-
tained by the icrc.61 The icrc has authoritatively defined the notion of dph
as referring to “specific acts carried out by individuals as part of the conduct of
hostilities between parties to an armed conflict” and meeting three cumulative
criteria: (i) a threshold of harm likely resulting from the act, (ii) a relationship
of direct causation between the act and the expected harm, and (iii) a belliger-
ent nexus between the act and the hostilities.62 According to the icrc, mem-
bers of an organized armed group belonging to a party to a conflict cease being
civilians, and thus lose protection from attack, only for as long as they assume
a continuous combat function (ccf).63 Such functional approach, as opposed
to a membership-based approach, by virtue of which all members of an armed
group would lose protection for the entire duration of their membership in the
group, regardless of whether they have a fighting function, is consistent with
the principle of distinction under ihl and prevents those who “on a merely
spontaneous, sporadic, or unorganized basis, or who assume exclusively po-
litical, administrative or other non-combat functions” from being targetable
at all times.64
In Strugar, the icty Appeals Chamber correctly found that dph is not limit-
ed to combat, but does not encompass all combat-related activities either. The
judges distinguished between acts amounting to dph and acts only resulting
in indirect participation in hostilities.65 They went on to state that, in order to
establish a violation of Common Article 3 GCs, the victims of the alleged of-
fence must not be directly participating in the hostilities, and that dph can be
“intermittent and discontinuous”.66 This is an important statement of the law,
in line with the icrc’s understanding of dph, and it is unfortunate that other
international criminal courts have occasionally departed from this finding.
59 Common Article 3 GCs; Article 43(2) api; Article 51(3) api; Article 67(1)(e) api; Article
77(2) api; Article 4(3)(d) apii; Article 13(3) apii.
60 Judgment, Prosecutor v. Akayesu, supra note 18, para. 629.
61 See: icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in
Hostilities (2009), at 43, pointing to the fact that in the equally authentic French text of
the GCs and their APs, the phrase “participent directement” is used consistently in lieu of
the two different words employed in the English version.
62 Ibid, at 43, 46–64.
63 Ibid, at 70.
64 Ibid, at 34.
65 Judgment, Prosecutor v. Strugar, icty, Appeals Chamber, 17 July 2008, para. 177.
66 Ibid, para. 178.
The scsl in Brima adopted a broader understanding of active participation

in hostilities, stating that it comprises “any labour or support that gives effect
to, or helps maintain, operations in a conflict”, including “carrying loads for
the fighting faction, finding and/or acquiring food, ammunition or equipment,
acting as decoys, carrying messages, making trails or finding routes, manning
checkpoints or acting as human shields”.67 The inclusion in this list of acts that
clearly do not amount to dph,68 in addition to being wrong as a matter of law,
is also problematic for the systemic fallouts that such an over-inclusive notion
of dph would provoke in practice, especially with respect to child soldiers.
These pitfalls had already been identified by the scsl itself, which in Sesay
noted how “an overly expansive definition of active participation in hostilities
would be inappropriate as its consequence would be that children associated
with armed groups lose their protected status as persons hors de combat under
the law of armed conflict”.69 Nevertheless, the Lubanga Trial Judgment stated
that the concept of active participation in the hostilities, as used in Article
8(2)(e)(vii) icc Statute (which criminalizes conscripting or enlisting children,
under the age of fifteen years, into armed forces or groups, or using them to
participate actively in hostilities in niac), has a larger reach than dph, and in
fact includes both direct and indirect participation in the hostilities, the un-
derlying feature common to both being that the child is exposed to being a
potential target.70 Albeit agreeing with the majority of her fellow judges on
this latter aspect, Judge Odio Benito, in her dissenting opinion, argued that
sexual violence should be included in the notion of use to participate actively
in the hostilities, in order to protect child soldiers, and especially girls who do
not necessarily take part into direct fighting, from violence committed against
them by members of the armed group that has recruited them.71
Scholars have rightly expressed concerns with respect to such an expansive
reading of the concept of direct/active participation in hostilities by criminal
courts. In particular, they have observed that ihl and International Crimi-
nal Law pull in different directions for the interpretation of this concept, ihl
being inclined towards a narrow interpretation in order to provide a broad
protection to civilians, and International Criminal Law leaning towards a
67 Judgment, Prosecutor v. Brima, supra note 25, para. 737.

68 See for instance: M. Sassòli, ‘Human Shields and International Humanitarian Law’, in
A. Fischer-Lescano, H.-P. Gasser, T. Marauhn, N. Ronzitti (eds.), Frieden in Freiheit. Peace
in Liberty. Paix en Liberté. Festschrift für Michael Bothe zum 70. Geburtstag (2008), at
571–576, on why being used as human shields does not amount to dph.
69 Judgment, Prosecutor v. Sesay, supra note 18, para. 1723.
70 Judgment, Prosecutor v. Lubanga, supra note 18, para. 628.
71 Ibid, Separate and Dissenting Opinion of Judge Odio Benito, paras. 17–21.
150 Spadaro
wide notion in order to punish the use of children in hostilities.72 To obviate

this problem, some commentators suggest keeping the ihl and International
Criminal Law standards separated, so as to offer child soldiers the widest pro-
tection possible.73
3.2 Status Requirement and Intra-Party Protection under ihl

The question of the protective reach of ihl recently came under the scrutiny
of the icc which had to deal with a jurisdictional challenge in the Ntaganda
case. The accused, who among other things is charged with the war crime of
rape and sexual slavery of child soldiers under Article 8(2)(e)(vi) icc Statute,
challenged the subject-matter jurisdiction of the court, arguing that under
ihl war crimes cannot be committed against persons taking active part in the
hostilities by other active combatants on the same side of the conflict.74 The
decisions on this issue by the Pre-Trial Chamber75 and the Trial Chamber76
were in turn impugned by the defence, and the Appeals Chamber had a final
say on this issue in June 2017. It is worth analysing the decision of icc Appeals
Chamber is some detail.
The issues before the Appeals Chamber were whether the war crimes of
rape and sexual slavery under Article 8(2)(b)(xxii) and (e)(vi) icc Statute
are subject to a status requirement, i.e. whether they have to be committed
against protected persons in the sense of the GCs or against persons taking
no active part in hostilities in the sense of Common Article 3 GCs and, thus,
whether the notion of active participation in hostilities is compatible with the
72 See: N. Urban, ‘Direct and Active Participation in Hostilities: The Unintended Con-
sequences of the icc’s Decision in Lubanga’, ejil: Talk!, 11 April 2012, available at:
https://www.ejiltalk.org/direct-and-active-participation-in-hostilities-the-unintended
-consequences-of-the-iccs-decision-in-lubanga/; R. Graf, ‘The International Criminal
Court and Child Soldiers: An Appraisal of the Lubanga Judgment’, 10 jicj (2012), at 961.
73 S. Sivakumaran, ‘War Crimes before the Special Court for Sierra Leone: Child Soldiers,
Hostages, Peacekeepers and Collective Punishments’, 8 jicj (2010), 1009, at 1019; T. Roden-
hauser, ‘Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their
“Own Forces”’, 14 jicj (2016), at 181; Graf, supra note 72, at 965.
74 Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s
challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, Prosecutor v.
Ntaganda, icc, Appeals Chamber, 15 June 2017, para. 4 (hereinafter Ntaganda Appeals
Chamber Decision).
75 Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the
Prosecutor Against Bosco Ntaganda, Prosecutor v. Ntaganda, icc, Pre-Trial Chamber ii, 9
June 2014.
76 Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of
Counts 6 and 9, Prosecutor v. Ntaganda, icc, Trial Chamber vi, 4 January 2017.
membership of the child soldiers victims of these crimes in the armed group
of the accused.77
Based on the ordinary meaning, context and drafting history of the rele-
vant provisions, the Appeals Chamber reasoned that no status requirement is
included in the chapeaux of Article 8(2)(b) and (e) icc Statute and, thus, con-
cluded that victims of the war crimes of rape and sexual slavery under Article
8(2)(b)(xxii) and (e)(vi) need not to be protected persons under the GCs or
Common Article 3 GCs.78
Noting that the icc Statute must however be read in manner that is consis-
tent with “the established framework of international law”, the Appeals Cham-
ber turned to the analysis of whether a status requirement exists for the crimes
of rape and sexual enslavement under ihl.79 The Appeals Chamber reasoned
that under gci and gcii grave breaches can be committed against wounded,
sick or shipwrecked members of the armed forces by both enemy forces and
their own forces, and that Common Article 3 GCs “provides for unqualified
protection against inhumane treatment irrespective of a person’s affiliation,
requiring only that the persons were taking no active part in hostilities at the
material time”.80
However, the wounded, sick, and shipwrecked are hors de combat and are
protected under gci and gcii precisely on that ground, including from vio-
lence committed by their fellow soldiers. Likewise, Common Article 3 GCs
only protects persons taking no active part in hostilities. While this does not
exclude that intra-party protection is provided under ihl, this protection,
far from being unqualified, is actually subject to a status requirement, which
is dependent on whether the victims were actively/directly participating in
hostilities, an issue which the icc Appeals Chamber failed to analyse.81
The children conscripted in Ntaganda’s armed group and victims of rape
and sexual slavery might be considered protected under ihl either as civil-
ians, who occasionally participated in hostilities (and were thus otherwise
protected in all other circumstances, including while being subjected to sexual
violence), or combatants that, at the relevant times, were hors de combat. One
could even argue that the coercive character and harmful consequences of
sexual violence themselves put the victims hors de combat.82
77 Ntaganda Appeals Chamber Decision, supra note 74, para. 16.

81 Ibid, para. 69.
82 Rodenhauser, supra note 73, at 191–192.
152 Spadaro
While normally persons who are entitled to protection under ihl are also in
the power of the adverse party, nothing in Common Article 3 GCs or Article 4
apii prevents a person, who is not or no longer participating in hostilities and is
in the power of a party to the conflict, including its own, from being protected.83
The importance of the power aspect might also provide a solution to the argu-
able gap in protection with respect to child soldiers who have a ccf and are
at the same time victims of sexual enslavement (a continuous crime). In fact,
they might be targetable by the enemy because of their fighting function, but
at the same time be considered hors de combat vis-à-vis the party to the conflict
that exercises coercive control over them.
A separate, but related, question is whether intra-party violence can amount
to a war crime based on the existence of a nexus. In fact, what distinguishes a
war crime from an ordinary crime is the existence of a close link between the
criminal act and the armed conflict.84 In Kunarac, the icty Appeals Chamber
explained that “[t]he armed conflict need not have been causal to the commis-
sion of the crime, but the existence of an armed conflict must, at a minimum,
have played a substantial part in the perpetrator’s ability to commit it, his deci-
sion to commit it, the manner in which it was committed or the purpose for
which it was committed”.85 The icty Appeals Chamber also suggested some
factors to take into account, among others, in determining the existence of the
nexus: “the fact that the perpetrator is a combatant; the fact that the victim is a
non-combatant; the fact that the victim is a member of the opposing party; the
fact that the act may be said to serve the ultimate goal of a military campaign;
and the fact that the crime is committed as part of or in the context of the per-
petrator’s official duties”.86
It is thus reasonable to suggest, as some commentators do, that rape of a
soldier by a fellow soldier might not always amount to a war crime, due to the
lack of a nexus with the armed conflict.87 While in the case of sexual violence
83 J.K. Kleffner, ‘Friend or Foe? On the Protective Reach of the Law of Armed Conflict. A Note
on the scsl Trial Chamber’s Judgment in the Case of Prosecutor v. Sesay, Kallon and
Gbao’, in M. Matthee, B. Toebes, M. Brus (eds.), Armed Conflict and International Law:
In Search of the Human Face. Liber Amicorum in Memory of Avril McDonald (2013), at
297–300.
84 Judgment, Čelebići case, supra note 18, para. 193; Ntaganda Appeals Chamber Decision,
supra note 74, para. 68.
85 Judgment, Prosecutor v. Kunarac, Kovač and Vuković, icty, Appeals Chamber, 12 June
2002, para 58.
86 Ibid, para. 59.
87 See for instance: A. Cassese et al., Cassese’s International Criminal Law (2013), at 78;
G. Gaggioli, ‘Sexual Violence in Armed Conflicts: a Violation of International Humanitarian
Law and Human Rights Law’, 96(894) irrc (2014), at 515; Ntaganda Appeals Chamber
Decision, supra note 74, para. 68, fn 151.
perpetrated against child soldiers by members of their own forces the nexus
requirement may not be immediately evident, based on the Kunarac factors,
its existence must be proved separately from and secondarily to the status of
the victims as protected persons under ihl. The fact that in the Ntaganda case
the alleged victims of the war crimes of rape and sexual enslavement were also
members of the accused’s armed group (with or without a ccf) cannot per se
exclude the existence of the nexus requirement either, and the assessment of
this element should be carefully reasoned.
4 Conclusion
The examples provided in this chapter have shown how the interpretation of
ihl in international criminal trials has not always resulted in good outcomes
as a matter of law. This is not to say, of course, that all decisions by interna-
tional criminal tribunals and courts have misconstrued ihl. Rather, this essay
has hopefully encouraged the readers to reflect critically on the outcomes of
these judgments, including some that have been greatly praised in the past.
It is of pivotal importance for both the legitimacy of ihl and the credibility
of the courts that enforce it that decisions are sound, realistic, and correctly
reasoned. Striking a balance between considerations of humanity and military
ones is no easy task, neither in the courtroom nor on the battlefield. At the
same time, it is also important for scholars and practitioners not to endorse
at any cost the decisions of courts, even when they are flawed. On the con-
trary, a critical outlook is needed in order to strengthen ihl and to promote
its correct application. This way, ihl will firmly stay at the vanishing point of
international law, rather than vanish altogether.
Section B
Entries
∵
Abandoned Explosive Ordnances; see: Explosive Remnants of War
Acts Harmful to the Enemy. The specific function of those caring for the
wounded, sick, and/or shipwrecked, as well as of the objects dedicated to such
care, translates into particular protection under ihl [see: Wounded and Sick;
Shipwrecked]. However, if such persons or objects (are used to) commit acts
harmful to the enemy outside their humanitarian duties (“act(s) harmful to
the enemy”), the rationale for their protection dissipates [art. 21 gci; art. 34(1)
gcii; art. 19(1) gciv; arts. 13(1), 65(1) api; art. 11(2) apii]. The possibility of loss
of protection forms part of the customary rules of ihl concerning the pro-
tection of medical personnel or objects [rules 25, 28, 29 icrc Customary ihl
Study].
It is not clear whether an act harmful to the enemy constitutes a distinct ba-
sis for the loss of protection of the persons and objects concerned, or whether
it is a specific application of the military objective test [see: Military Objec-
tives]. The entrenchment of acts harmful to the enemy in the GCs and APs
supports a disjunction between these notions. In this regard, the icrc has
stated that “[t]he question of whether such an establishment or unit may be
the object of an attack […] depends on it fulfilling the criteria for qualifying
as a ‘military objective’” [2016 icrc Commentary gci, para. 1847]. This seems
to entail that, after establishing an act harmful to the enemy, it must be sepa-
rately established that the requirements regarding a military objective have
been met. However, the icrc has also considered that “it is hard to conceive
of circumstances in which the commission of an ‘act harmful to the enemy’
would not transform the facility in question into a military objective” [2016
icrc Commentary gci, para. 1847]. This may, conversely, mean that the no-
tions overlap.
On the basis of the wording of the GCs and APs, the possibility of forfeiting
protection on the basis of an act harmful to the enemy applies to: (i) (civil-
ian) fixed establishments and mobile medical units [art. 21 gci; art. 13(1) api;
art. 11(2); apii; see: Medical Units and Establishments]; (ii) hospital ships and
sick-bays [art. 34(1) gcii; see: Hospital Ships; Sick-Bays]; (iii) civilian hospitals
[art. 19 gciv; see: Hospitals]; and (iv) civil defence organizations [art. 65(1)
api; see: Civil Defence]. Moreover, although not mentioned in the GCs or
APs, medical and religious personnel and medical transports may, pursuant to
the same rationale, also be deprived of protection under the same conditions
[2016 icrc Commentary gci, paras. 1837 (fn. 2), 1995–1996; see: Medical Per-
sonnel; Religious Personnel; Medical Transports]. Separate (but comparable)
rules have been created for the protection of medical aircraft and air transports

158 Acts Harmful to the Enemy
[arts. 36–37 gci; arts. 39–40 gcii; art. 22 gciv; see: Medical Aircrafts; Medical
Transports]. However, it is not entirely clear whether coastal rescue craft are
subject to this regime [2017 icrc Commentary gcii, para. 2372; see: Coastal
Rescue Craft].
Other than the use of encrypted means of communication by hospital ships
[art. 34(2) gcii], the GCs and APs do not define acts harmful to the enemy.
However, it is not contested that certain forms of military use or activity may
amount to an act harmful to the enemy. Examples include direct participa-
tion in hostilities, sheltering able-bodied combatants, and stockpiling weap-
ons [2016 icrc Commentary gci, paras. 1841–1842]. Due to the absence of a
definition, the determination concerning an act harmful to the enemy must be
made on a case by case basis and may, therefore, involve diverging (and pos-
sibly inconsistent) assessments.
Whilst acts harmful to the enemy are not defined, the GCs and APs specify
scenarios that do not reach the threshold. The most common scenarios regard-
ing (civilian) medical units and establishments, hospital ships, and sick-bays
concern: (i) the presence of armed personnel and the use of weapons to main-
tain order and/or in self-defence or in defence of persons in their care [art.
22(1) gci; art. 35(1) gcii; art. 13(2)(a) api; see also: art. 65(3) api]; and (ii) small
arms and ammunition found on wounded, sick, and/or shipwrecked persons
and not yet handed over to the proper service [art. 22(3) gci; art. 35(3) gcii;
art. 13(2)(c) api; similarly regarding civilian hospitals: art. 19(2) gciv]. Further-
more, the extension of care to wounded, sick, and/or shipwrecked civilians by
medical services of a military nature and the nursing of sick and wounded
armed forces and/or other combatants in medical institutions of a civilian
nature may also not be construed as an act harmful to the enemy [art. 22(5)
gci; art. 35(4) gcii; art. 13(2)(d) api; art. 19(2) gciv; similarly regarding civil
defence organizations: art. 65(2)(c) api]. More specific scenarios are set forth
in the GCs and api, depending on the person or object in question [art. 22(2),
(4) gci; art. 35(2), (5) gcii; arts. 13(2)(b), 65(2)(a), (b), (4) api]. According to
the icrc, these lists are non-exhaustive [2016 icrc Commentary gci, para.
1860]. Such scenarios have not been defined in relation to non-international
armed conflict surpassing the threshold of apii [art. 11(2) apii]. Although the
list of scenarios contained in Article 13(2) api may “help the interpretation” of
Article 11(2) apii [1987 icrc Commentary apii, para. 4723], it remains uncer-
tain to what extent these scenarios specifically apply in this context.
Where it is determined that an act is harmful to the enemy, protection is
not inevitably lost. It must, in addition, be established that such an act has
been committed outside the humanitarian duties of the person or object con-
cerned. This means that an act that may be qualified as harmful to the enemy
Additional Protocol i 159
does not entail a loss of protection if it falls within the humanitarian duties of
the person or object concerned. In this regard, the icrc refers to the following
examples: “a mobile medical unit accidentally breaks down while it is being
moved in accordance with its humanitarian function, and thereby obstructs a
crossroads of military importance” and “radiation emitted by X-ray apparatus
[…] interfere[s] with the transmission or reception of wireless messages at a
military location, or with the working of a radar unit” [1987 icrc Commentary
api, para. 552].
Furthermore, loss of protection only ensues after due warning has been
given and a reasonable time limit to refrain from the activity in question has
gone unheeded [art. 21 gci; art. 34(1) gcii; art. 19(1) gciv; arts. 13(1), 65(1) api;
art. 11(2) apii]. The form a warning may take and the length of the time limit
depends on the circumstances. However, a reasonable time-limit only needs
to be provided in appropriate circumstances, since the realities of the battle-
field may not allow for such a possibility, such as rapidly approaching enemy
forces. There is disagreement as to whether the requirement of a due warning
is subject to the same proviso. Whereas the icrc considers that this is not the
case (since the reference to “in all appropriate cases” or “whenever appropri-
ate” only appears after the obligation to provide a (due) warning), a number of
States maintain that such a warning is not possible in exigent circumstances
[2016 icrc Commentary gci, para. 1848].
Dražan Djukić – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Criminal Court
Bibliography
T. Haeck, ‘Loss of Protection’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949
Geneva Conventions: A Commentary (2015).
P. de Waard, J. Tarrant, ‘Protection of Military Medical Personnel in Armed Conflicts’,
35(1) University of Western Australia Law Review (2010).
Additional Protocol i. api is the first of three Additional Protocols to the 1949
GCs [see: Geneva Conventions]. The Diplomatic Conference on the Reaffir-
mation and Development of International Humanitarian Law Applicable in
Armed Conflicts took place from 1974 to 1977 and aimed at studying the draft
of two Additional Protocols prepared by the icrc and intended to supplement
the GCs. As a consequence, api and apii [see: Additional Protocol ii] were
adopted on 8 June 1977.
The intention behind api was to broaden and strengthen ihl applicable to
international armed conflicts. As its Preamble states, States parties believed
160 Additional Protocol i
it necessary “to reaffirm and develop the provisions protecting the victims of
armed conflicts and to supplement measures intended to reinforce their appli-
cation”. api entered into force on 7 December 1978 and 174 States are party to it.
Part i contains the “General Provisions” of api. It extends ihl’s scope of
application, besides international armed conflicts (as defined in the GCs), to
national liberation wars [art. 1(4) api; see: International Armed Conflict].
Part i also refers to the beginning and end of api’s application [art. 3 api] and
indicates that the application of the GCs and of api shall not affect the legal
status of the parties to the conflict [art. 4 api].
Part ii encompasses the protection for “Wounded, Sick and Shipwrecked”.
It reinforces and extends the protection given by gci and gcii by covering
wounded, sick, and shipwrecked irrespective of their status [art. 8(a), (b) api;
see: Wounded and Sick; Shipwrecked]. Additionally, api prohibits carrying
out medical or scientific experiments on the wounded, sick, and shipwrecked
who are in the power of the adverse party or who are interned, detained, or
deprived of their liberty [art. 11(2)(b) api; see: Medical or Scientific Experi-
ments]. It also prohibits subjecting them to medical procedures in certain cir-
cumstances [art. 11(1) api]. Part ii further refers to the protection of civilian
medical units and civilian medical personnel in occupied territories [art. 14
api; see: Occupation].
Part iii refers to the “Methods and Means of Warfare” and “Combatant
and Prisoner-of-War Status”. Unlike the GCs, api encompasses the prohibi-
tions of perfidy [art. 37 api; see: Perfidy] and of ordering or threatening with
no quarter [art. 40 api; see: Quarter]. Likewise, it provides regulations in
relation to spies [art. 46 api; see: Spies], and mercenaries [art. 47 api; see:
Mercenaries], and defines armed forces and combatants [arts. 43, 44 api; see:
Combatants]. A cursory definition of the former was given earlier in Article
3 of the Hague Regulations stating that “the armed forces of the belligerent
parties may consist of combatants and non-combatants”. api provides a more
detailed definition by stating that the armed forces of a party to a conflict are
“all organized armed forces, groups and units which are under a command
responsible to that Party for the conduct of its subordinates” [art. 43(1) api].
Specifically in relation to combatants, it further explains that, as members of
the armed forces of a party to a conflict, they have the right to participate
directly in hostilities. In addition, it indicates that medical and religious per-
sonnel are not to be considered combatants although they are members of
the armed forces.
Part iv deals with the “Civilian Population” by enhancing its protection
against the effects of the conduct of hostilities, and reaffirming and strength-
ening the already existing regulations which address the use of force in ihl.
Additional Protocol i 161
Thus, it has introduced, for instance, principles concerning: distinction [arts.

48, 52(2) api; see: Distinction]; proportionality [arts. 51(5)(b), 57(2)(a)(iii)
api; see: Proportionality]; and precautionary measures [arts. 57, 58; see:
Precautions, Active; Precautions, Passive]. Furthermore, unlike the GCs, api
provides a definition of civilians and civilian population [art. 50 api; see: Civil-
ians; Civilian Population], military objectives and civilian objects [art. 52 api;
see: Civilian Objects; Military Objectives].
Part v deals with the “Execution of the Conventions and of th[e] Protocol”.
It contains provisions establishing what are considered to be “grave breaches”
[arts. 85(2) to (4) api; see: Grave Breaches] and their repression [art. 85(1)
api]. api extends the grave breaches regime of the GCs by adding types of
conduct not listed in the GCs.
Many of the provisions laid down in api were already considered customary
ihl before its adoption, such as those reflecting what is stated in the Hague
Regulations [Decision on the Joint Defence Motion to Dismiss the Amended
Indictment, Kordić and Čerkez, icty, Trial Chamber, para. 31]. Other provi-
sions have been recognized as such afterwards, as shown by the icrc [e.g.
rules 7–14 icrc Customary ihl Study]. The customary nature of some oth-
er provisions of api remains under discussion, such as the second sentence
of Article 44(3) api, referring to the situation where members of the armed
forces of a party to a conflict would be considered combatants even if they do
not distinguish themselves from the civilian population [J.-M. Henckaerts, L.
Doswald-Beck, Customary International Humanitarian Law, Vol. 2 (2005), pp.
2550–2560]. This provision was one of the main reasons why Israel and the
United States did not ratify api, since they considered it as broadening the sta-
tus of prisoners of war to those who, although not distinguishing themselves,
retained their status as combatants when carrying their arms openly. Another
reason for non-ratification was that Article 1(4) api extends the definition of
international armed conflicts to “armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist régimes
in the exercise of their right of self-determination” [see: International Armed
Conflict].
States such as Canada, France, and the United Kingdom have ratified api
with reservations, some of which relate to Articles 1(4), 43 and 44(3) api. Be-
sides Israel and the United States, other States, such as India, Iran, Pakistan,
and Turkey, have not ratified it.
Marcela Giraldo – the views expressed are those of the author alone and do
not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or
the Inter-American Court of Human Rights (the author was a lawyer at the Inter-
American Court of Human Rights at the time of writing the entries)
162 Additional Protocol ii
Bibliography
F. Pocar, ‘To What Extent is Protocol i Customary International Law?’, 78 International
.
Law Studies (2002).
Additional Protocol ii. apii is the second of three Additional Protocols to the
1949 GCs [see: Geneva Conventions]. It was adopted at the Diplomatic Con-
ference on the Reaffirmation and Development of International Humanitar-
ian Law Applicable in Armed Conflicts on 8 June 1977, together with api [see:
Additional Protocol i]. Currently, 168 States are party to apii, which entered
into force on 7 December 1978.
Before the adoption of apii, Common Article 3 GCs was the only ihl provi-
sion applicable to non-international armed conflicts [see: Common Article 3],
even though the majority of armed conflicts since World War ii have been of a
non-international character. Thus, apii aims at extending and reinforcing ihl
applicable to such conflicts. As its Preamble states, apii is premised on “the
need to ensure a better protection for the victims of [non-international armed
conflicts]”.
Part i defines the scope of the Protocol. It sets the following requirements:
an armed conflict has to take place within the territory of a State party to apii;
the armed forces of that State have to be involved; and the dissident armed
group opposing them has to be under responsible command and must exer-
cise such control over a part of the territory, so as to enable it to carry out
sustained and concerted military operations and to implement apii [art. 1(1)
apii; see: Non-International Armed Conflict]. It also excludes situations of
internal disturbances and tensions from its scope of application [art. 1(2) apii;
see: Internal Disturbances and Tensions]. Thus, the definition is narrower
than the notion of non-international armed conflict in Common Article 3 GCs,
since it introduces a requirement of territorial control and does not apply to
non-international armed conflicts conducted between armed groups. Conse-
quently, apii has a higher threshold for its application than Common Article 3
GCs, which has led to a reduced application in practice.
Part ii deals with “Human Treatment”. It provides fundamental guarantees
to which all individuals who do not take a direct part or who have ceased to
take part in hostilities are entitled, whether or not their liberty has been re-
stricted [art. 4 apii]. It refers to additional guarantees for people deprived of
their liberty for reasons related to a non-international armed conflict [art. 5
apii; see: Deprivation of Liberty] and encompasses judicial guarantees for
criminal prosecution of offences related to a non-international armed conflict
[art. 6 apii; see: Fair Trial]. It further states that the broadest possible amnesty
Additional Protocol ii 163
should be granted to those who have participated in a non-international

armed conflict, or those deprived of their liberty for reasons related to it [art.
6(5) apii; see: Amnesty].
Part iii seeks to protect the wounded, sick and, shipwrecked [arts. 7, 8 apii;
see: Wounded and Sick; Shipwrecked]. It also protects religious and medical
personnel [arts. 9, 10 apii; see: Medical Personnel; Religious Personnel] and
medical units and transport [art. 11 apii; see: Medical Units and Establish-
ments; Medical Transports].
Part iv refers to the “Civilian Population”. Article 13 apii affirms the protec-
tion of the civilian population against the dangers arising from military opera-
tions, and the prohibition of being the object of attack, unless and for such
time as civilians directly participate in hostilities [see: Civilians; Civilian Pop-
ulation; Direct Participation in Hostilities]. It also prohibits the forced move-
ment of civilians [art. 17 apii; see: Deportation or Transfer of Civilians]. This
part also encompasses the protection of objects indispensable to the survival
of the civilian population [art. 14 apii; see: Attacks against Objects Indispens-
able to the Survival of the Civilian Population], of works and installations
containing dangerous forces [art. 15 apii; see: Attacks against Works or In-
stallations Containing Dangerous Forces], and of cultural objects and places
of worship [art. 16 apii; see: Attacks against Historic Monuments, Works of
Art and Places of Worship; Hague Convention for the Protection of Cultural
Property (1954) and its Protocols]. It, finally, deals with relief societies and
relief actions [art. 18 apii; see: Humanitarian Relief; Relief Societies].
The relevance of apii has increased over time. The IACtHR has interpreted
the achr in light of apii on several occasions. For example, it distinguished
the rule laid down under Article 6(5) apii from the IACtHR’s standard on the
prohibition to grant amnesties for gross human rights violations [Judgment,
Massacres of El Mozote and Nearby Places v. El Salvador, IACtHR, paras.
283–286]. Likewise, it analyzed the rights to life, children’s rights, and property
in non-international armed conflicts in light of the applicable rules of apii
[Judgment, Massacre of Santo Domingo v. Colombia, IACtHR, paras. 187, 212,
238, 270]. Furthermore, apii has been invoked in the context of international
criminal law [see: International Criminal Law]. For instance, violations of
apii may be prosecuted under Article 4 ictr Statute. Further, the icty and the
icc have used apii to give content to some of the war crimes in their Statutes
[e.g. Judgment, Furundžija, icty, Trial Chamber, para. 166 (regarding rape);
Judgment, Lubanga, icc, Trial Chamber i, para. 604 (regarding conscripting,
enlisting and using child soldiers to participate actively in hostilities)].
Nevertheless, apii is not as detailed as api. For example, it has only one
provision on the conduct of hostilities [art. 13 apii] and lacks provisions on
164 Additional Protocol iii
matters dealt with in api, such as combatant status [see: Combatants] and the
prohibition of perfidy [art. 37 api; see: Perfidy]. Further, it does not encompass
provisions in relation to the repression of its breaches and its regulation con-
cerning detention is unclear [art. 5 apii; see: Deprivation of Liberty].
The higher threshold of non-international armed conflict required in apii
and its reduced number of provisions, when compared to the law of inter-
national armed conflicts, are the result of States’ reluctance to regulate non-
international armed conflicts. Indeed, during the Diplomatic Conference, a
number of States expressed their concerns in relation to the fact that “they
did not believe that the draft provided sufficient guarantees for respect due
to national sovereignty and for non-interference with internal affairs” and
that “some of the rules seemed to be too detailed to be realistic, or to be able
genuinely to be applied in the specific context of internal armed conflicts”
[1987 icrc Commentary apii, p. 1335].
Bibliography
Y. Dinstein, Non-International Armed Conflicts in International Law (2014).
S. Sivakumaran, The Law of Non-International Armed Conflict (2012).
Additional Protocol iii. apiii is the third of three Additional Protocols to the
1949 GCs. apiii was adopted on 8 December 2005. It has 72 States parties and
entered into force on 14 January 2007. apiii was adopted in order to create
an additional distinctive emblem for use alongside the pre-existing emblems
[see: Emblem].
apiii’s Preamble stresses that none of the existing distinctive emblems
must be understood as having any “religious, ethnic, racial, regional or political
significance”. Nevertheless, in certain contexts, the use of the red cross and the
red crescent has been a sensitive issue, given that they were associated with a
specific religious, political, or cultural affiliation. Hence, apiii creates the red
crystal, which is composed of a red frame in the shape of a square on edge on
a white ground, as a more neutral alternative [art. 2(2) apiii].
apiii allows for National Societies to use the red crystal, or a combination
of it with any other pre-existing emblem, whether recognized by the GCs or
another one effectively used by a State party, and subject to a communica-
tion to the other parties and the icrc (e.g. the Red Shield of David) [art. 3(1)
apiii]. Insofar as a National Society chooses not to use the red crystal, under
Aerial Warfare 165
exceptional circumstances and only to facilitate its work, it may make tempo-
rary use of that emblem [art. 3(3) apiii].
The tensions regarding the use of emblems had a detrimental impact on
the International Red Cross and Red Crescent Movement. It firstly affected the
notion of impartiality and neutrality that characterizes the movement, dimin-
ishing the protection afforded to those using the original symbols. It further
caused several States to avoid selecting any of the adopted emblems based on
arguments pertaining to the “suitability” of the pre-existing ones. This, in turn,
became an obstacle for the general objective of the movement, which is attain-
ing universality [see: National Red Cross and Red Crescent Movement].
Similar controversies arose towards the end of the nineteenth century. By
1864, the only emblem adopted during the Geneva Conference to distinguish
military medical services, volunteer aid workers, and wounded people was the
red cross on a white background, which was the reversal of the Swiss flag. Not-
withstanding, the Ottoman Empire declared that it would use the red crescent
during the Russia-Turkey war between 1876 and 1878. The red crescent was fi-
nally recognized in 1929 as another distinctive emblem. A similar tension ex-
isted after World War ii, when Israel proposed the adoption of the Red Shield
of David as an emblem. The proposal was set aside by States, which led Israel
to accede to the 1949 GCs with a reservation: the use of the Red Star of David as
a distinctive emblem [F. Bugnion, ‘The Red Cross and Red Crescent Emblems’,
272 irrc (1989)]. The validity of that reservation was questioned on several
occasions.
Bibliography
F. Bugnion, ‘The Red Cross and Red Crescent Emblems’, 272 irrc (1989).
icrc, Adoption of an Additional Distinctive Emblem, 88(186) irrc (2006).
Administrative Detention; see: Internment
Aerial Warfare. Air and missile operations can occur across the entire opera-
tional spectrum of the military, not all of which qualify as “warfare”. Legally
speaking, “warfare” comprises only armed conflicts, whether international or
non-international [see: International Armed Conflict; Non-International
Armed Conflict]. Other situations in which air and missile operations may be
used, below the threshold of ihl, may include criminal activities like terrorism,
166 Aerial Warfare
or internal disturbances and unrests. With the evolution of technology and the
tendency of the public opinion to no longer accept the loss of servicemen in-
volved in armed conflicts fought far away from home, air power has become a
vital instrument for what has become known as “zero-casualty” wars. Pursuant
to this doctrine, war on land should be eliminated or, alternatively, subordi-
nated to air strikes. Examples of this trend are the 1991 Gulf War, the nato air
strikes in the Former Yugoslavia in 1999, and, to some extent, the air strikes in
Afghanistan in 2001/2002 and in Iraq in 2003.
The increasing use of new technologies, including autonomous systems, has
further contributed to the criticism, pioneered by human rights movement,
that the “remoteness” of the event may give the operators, called upon to apply
ihl, an “illusion of diminished responsibility” [see: Autonomous Weapons].
There has been, thus, a major evolution from the nineteenth century, when
air power was used primarily for reconnaissance (airships), and the twentieth
century, when it was used as a powerful strike force, to its current role.
Notwithstanding the technological developments that have accompanied
the evolution of aerial warfare – including the use of electronic means of tar-
get recognition and evaluation, “smart” munitions, and autonomous systems
[A.P. Williams, P.D. Scharre (eds.), Autonomous Systems – Issues for Defence
Policymakers (2015)] – and the argument, by some, that ihl is anachronis-
tic, de facto the legal challenges raised by aerial warfare are associated with
traditional concepts of the laws of war on land. These include, in particular,
the principles of proportionality and distinction in targeting, as addressed
by the icty with regard to the 1999 nato bombing campaign against the
Federal Republic of Yugoslavia [W.J. Fenrick, ‘Targeting and Proportionality
during the nato Bombing Campaign against Yugoslavia’, 12(3) ejil (2001), pp.
489–502; see: Distinction; Proportionality]. Apart from the 1949 GCs and the
1977 APs, few legal instruments deal specifically with aerial warfare: (i) the
Hague Declaration (xiv) Prohibiting the Discharge of Projectiles and Explo-
sives from Balloons, signed in The Hague on 18 October 1907, which prohibits
the launching of projectiles and explosives from balloons (this was at a time
when precise targeting was not possible, due to the existing air technology);
and (ii) the (Hague) Rules concerning the Control of Wireless Telegraphy in
Time of War and Air Warfare, drafted between December 1922 and February
1923 by the Commission of Jurists (established in 1922 by the Washington
Conference on the Limitation of Armament). These are not binding, but have
acquired a considerable impact and large parts thereof have customary law
status.
The issue of the extent to which these conventions apply was debated first
in the 1994 San Remo Manual. This covers also the aerial elements of naval war-
fare and was used as an example by the Group of Experts that was convened
Amnesty 167
by the Harvard Program on Humanitarian Policy and Conflict Research from

2004 to 2009. The outcome of the Group’s work was the publication, in 2013,
of the “Manual on the International Law Applicable to Air and Missile War-
fare” (amw Manual). According to the latter, the current challenges posed by
the law of air (and missile) warfare do not derive solely from rapidly evolving
technologies, but also by the new methods of “warfare” introduced by terrorist
movements, such as the use of hijacking aircraft as a weapon [rule 63 (b) amw
Manual]. The Black-Letter Rules of the amw Manual refer instead to the prod-
uct of the collective efforts of the Group of Experts “as to the state of the most
salient elements of the existing ihl in 2009”.
Roberta Arnold – the views expressed are those of the author alone and do not
necessarily reflect the views of any institution the author is affiliated with
Bibliography
W.J. Fenrick, ‘Targeting and Proportionality during the nato Bombing Campaign
against Yugoslavia’, 12(3) ejil (2001).
Amnesty. Amnesty has been defined as any legal measure that has the effect
of “prospectively barring criminal prosecution and, in some cases, civil actions
against certain individuals or categories of individuals in respect of specified
criminal conduct committed before the amnesty’s adoption”, or “retroactively
nullifying legal liability previously established” [ohchr, Rule of Law Tools for
Post-Conflict States, Amnesties (2009), p. 5]. While amnesties may take dif-
ferent forms (e.g. updated executive decree or legislation), amnesty is to be
distinguished from pardon, diplomatic or head of State immunity, and, more
generally, any other form of impunity with similar effects.
Amnesty has long figured in history. International treaties, such as the
1648 Peace of Westphalia or the 1923 Treaty of Lausanne, already contained
amnesty provisions or declarations. To date, from the standpoint of treaties,
the only references to amnesty are included in Article 6(4) iccpr and, more
importantly, in Article 6(5) apii, which provides that “[a]t the end of hostili-
ties, the authorities in power shall endeavour to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or those de-
prived of their liberty for reasons related to the armed conflict, whether they
are interned or detained”. Notably, in 2005, the icrc asserted that “state prac-
tice establishes this rule as a norm of customary international law applicable
in non-international armed conflicts”, albeit with a slightly reformulated last
phrase that excluded its applicability to “persons suspected of, or accused of
or sentenced for war crimes” [rule 159 icrc Customary ihl Study; see: War
Crimes].
168 Amnesty
While amnesty provisions have proven to be important components in

peace agreements, the permissibility of amnesty has raised, and continues
to raise, controversy. The amnesty dilemma gained prominence in the 1990s,
when the global anti-impunity discourse took hold within the international
community. As a result, individual criminal responsibility became firmly root-
ed in international law and, at the same time, amnesty became to be gradually
perceived as at odds with the values of the human rights community [see: In-
dividual Criminal Responsibility].
Although arguments against the permissibility of amnesties have often been
complex, the view that an amnesty is incompatible with, and should actually
be prohibited under international law, is based on three main arguments. The
first, and perhaps most frequently used, argument is that no amnesty should
take precedence over the obligation of States to prosecute, try, and punish the
perpetrators of serious crimes under international law. A second argument
against the legality of amnesties has focused on the rights of victims, particu-
larly the rights to a remedy and reparation, which would be violated in so far
as an amnesty would impede their implementation. Finally, under the third
line of argumentation, commentators have referred to an emerging norm of
customary international law that prohibits amnesties, and argued that the ius
cogens and erga omnes nature of the prohibition of certain conduct (such as
genocide) renders amnesties for those international crimes and serious hu-
man rights violations impermissible.
Over the last years, human rights courts as well as international and hybrid
tribunals have also had to deal with the issue of amnesty, although their juris-
prudence is relatively narrow in number and scope [see: Human Rights Courts
and Bodies; Hybrid or Internationalised Tribunals]. For the most part, these
bodies have been consistent in affirming that domestic amnesties for serious
international crimes and serious violations of ihl or ihrl are incompatible
with international law and represent a failure by States to fulfil their inter-
national obligations [e.g. Judgment, Gomes Lund v. Brazil, IACtHR, para. 47;
Judgment, Marguš v. Croatia, ECtHR Grand Chamber, para. 139; General Com-
ment No. 31 (80), UN Human Rights Committee, UN Doc CCPR/C/21/Rev.1/
Add.13 (2004); Judgment, Furundžija, icty, Trial Chamber, para. 155; Deci-
sion on Challenge to Jurisdiction: Lome Accord Amnesty, Kallon and Kamara,
scsl, Appeals Chamber, para. 82]. Notably, international actors, such as the
UN, have endorsed this position in various circumstances [e.g. UN Commis-
sion on Human Rights, Updated Set of Principles for the Protection and Pro-
motion of Human Rights through Action to Combat Impunity, Principle 24
(2005); ohchr, Rule of Law Tools for Post-Conflict State: Amnesties (2009)].
Amnesty 169
Against this background, however, State practice has not developed in the
same direction. Recent studies show how the practice of granting amnesties,
far from reducing as a result of the global anti-impunity movement, has actu-
ally increased in popularity in the last years. As a consequence, amnesty laws
have continued to be enacted by States, mostly those emerging from armed
conflict situations.
Yet, as the writing of many leading scholars shows, the status of amnesty in
international law seems rather unsettled. On the one hand, to date agreement
seems to have been reached with respect to the prohibition of certain types
of amnesties (e.g. blanket or unconditional amnesties, encompassing broad
categories of beneficiaries and broad categories of crimes). Conversely, amnes-
ties associated with other forms of accountability, such as the establishment of
truth commissions, may rather be accepted [see: Truth Commissions]. More-
over, the idea that amnesties should be prohibited in light of an absolute duty
to prosecute and punish perpetrators seems a relatively weak argument, con-
sidering that the existence of such a general duty remains contested and is, in
any case, an obligation of conduct and not of result. Lastly, although the last
decades witnessed the emergence of a strong body of international criminal
law norms, the paucity of case law addressing amnesty as well as the icc’s
silence on the matter seem rather to point to the conclusion that the permis-
sibility of amnesties remains open to interpretation, at least as far as condi-
tional amnesties are concerned (i.e. individual amnesties which are subject to
a number of conditions in order to be granted).
In conclusion, despite the inclusion of amnesty provisions in international
treaties, such as the one provided in Article 6(5) apii, amnesty remains one
of the most controversial aspects of contemporary international law. This is
particularly true in light of the fact that any discussion concerning amnesty
is inevitably linked to the need to balance the competing interests of justice
and peace, which in the aftermath of an armed conflict are particularly critical
and are not to be determined in absolute terms but rather depending on the
context.
Valentina Cadelo – the views expressed are those of the author alone and do
not necessarily reflect the views of the International Commission of Jurists
Bibliography
F. Lessa, L. Payne, Amnesty in the Age of Human Rights Accountability: Comparative
and International Perspectives (2012).
L. Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and
Justice Divide (2008).
170 Animals
I.M. Siatitsa, M. Wierda, ‘Principle 24: Restrictions and other Measures relating to Am-
nesty’, in F. Haldemann, T. Unger (eds.), The UN Principles to Combat Impunity:
A Commentary (2018).
Animals. When looking at whether ihl affords some protection to animals,

the starting point is that there is no explicit mention of the words “animal(s)”
or “wildlife” in the GCs and the APs, nor in any other major ihl instrument.
This is perhaps unsurprising, as ihl revolves around the protection of hu-
man beings and objects involved in or otherwise affected by hostilities [see:
International Humanitarian Law, General Principles of]. Animals must be
therefore included in existing protected categories in order to be safeguarded
against the effect of hostilities [J. De Hemptinne, ‘The Protection of Animals
During Warfare’, 111 ajil Unbound (2017), pp. 273–276].
The first category one can logically think of is that of civilian objects, which
are protected and must not be attacked unless they are used for military pur-
poses [see: Civilian Objects; Military Objectives]. Such interpretation is pre-
mised on the consideration that animals are objects, or even property [see:
Property, Private]. This understanding, however, vigorously clashes with an
increasingly tangible trend under the national legislation of several countries,
which consider animals somewhat as sentient creatures and afford them rights.
These rights, in turn, correspond to obligations upon human beings and their
violation may trigger individual criminal responsibility for offences such as
mistreatment of animals, including acts of cruelty and causing their death
[A. Peters, ‘Animals Matter in International Law and International Law Matters
for Animals’, 111 ajil Unbound (2017), pp. 252–253]. The Italian Court of Cas-
sation stated that in order to qualify as the crime of mistreatment of animals,
a conduct need not result in actual injury to or impairment of the animal, but
it must simply cause suffering. Thus, emphasis is placed on the subjective feel-
ings of the animal as the victim of the wrongdoing. This is important because,
as the Court underlined, it signals that the State considers animals as “living
creatures capable of sensing, with pain, behaviors that are not dictated by sym-
pathy, compassion and humility” [Judgment 46291/2003, Italian Court of Cas-
sation, Third Criminal Section].
As an alternative to the classification as civilian objects, animals, in particu-
lar wildlife, can be encompassed within the natural environment, which enjoys
a degree of protection against the effect of hostilities [arts. 35, 55 api; see: En-
vironment]. To the extent that the environment is constituted by civilian ob-
jects, which are protected and may be said to include animals (or at least they
do not exclude them explicitly), the latter are protected accordingly.
Animals 171
Lastly, regardless of whether there is room under ihl for their safeguard, an-
imals remain protected at all times by the applicable national legislation of the
State(s) where the armed conflict takes place, whether it is an international or
non-international armed conflict. However, the realities of an armed conflict
may make it inevitable that some laws and regulations suffer from poor imple-
mentation. In an international armed conflict, State authorities or agencies
normally devoted to the protection of animals and wildlife (for example park
rangers or shelters for abandoned or abused animals) may not be functional
due to the hostilities. The same holds true in non-international armed conflict,
with the added problem that armed groups exercising control over part of the
State territory may still not be capable to enforce laws protecting animals or
may simply be unwilling to do so in favor of exploiting the trade of wildlife to
fund their war efforts. As the UN pointed out, in some cases resources such as
ivory “become the raison d’etre for conflict, replacing the complex social, eco-
nomic, cultural and ethnic factors as the primary reason to continue to fight”
[UN Environment Programme, The Environmental Crime Crisis. Threats to
Sustainable Development from Illegal Exploitation and Trade in Wildlife and
Forest Resources (2014), p. 49].
At the opposite side of the discussion as to what protection can be afforded
to animals, lies the legal reality that animals can also be made object of attack
during armed conflict in certain circumstances. First, they can be considered
military objectives [see: Military Objectives]. This can be the case, for exam-
ple, for donkeys, horses or other animals that are employed to transport am-
munitions, weapons, and military equipment on behalf of a party to a conflict.
In this respect, animals become military objectives not on account of what
they do by themselves but by virtue of what humans make them do. In other
words, they cannot decide autonomously to join the armed forces of a State or
to directly participate in hostilities. Accordingly, highly trained dogs serving
with special forces could never be regarded as combatants or civilians taking
part in hostilities, yet they can be targeted as military objectives if the require-
ments of Article 52(2) api are met. The icrc pointed out that the expression
“armed forces” “does not allow, for example, the use of animals trained to at-
tack, who are incapable of distinguishing between an able-bodied enemy and
an enemy who is ‘hors de combat’” [1987 icrc Commentary api, para. 1672].
Second, animals can become collateral damage in the conduct of hostilities,
that is to say incidental loss of civilian objects which is not disproportionate
when compared to the military objective that the attacking party targeted [see:
Proportionality].
Interestingly, animals may be protected, or their protection may significant-
ly increase, on account of some measures that parties to an armed conflict may
172 Annexation
decide to adopt under ihl [see: Specially Protected Zones]. A clear example
is the demilitarized zone that divides the Democratic People’s Republic of Ko-
rea and the Republic of Korea. Established in 1953 by way of armistice [see:
Armistice], this 250 kilometres long and 4 kilometres wide strip of land has
since seen virtually no human activity taking place. This resulted in a pristine
environment where fauna and flora flourished [K.-G. Kim, The Demilitarized
Zone (dmz) of Korea. Protection, Conservation and Restoration of a Unique
Ecosystem (2013)]. Although the establishment of this demilitarized zone did
not aim at increasing the protection of animals, this is what in practice has
occurred.
Niccolò Pons – the views expressed are those of the author alone and do not
necessarily reflect the views of the Kosovo Specialist Chambers
Bibliography
J. De Hemptinne, ‘The Protection of Animals During Warfare’, 111 ajil Unbound (2017).
A. Peters, ‘Animals Matter in International Law and International Law Matters for
Animals’, 111 ajil Unbound (2017).
UN Environment Programme, The Environmental Crime Crisis. Threats to Sustainable
Development from Illegal Exploitation and Trade in Wildlife and Forest Resources
(2014).
Annexation. In international relations, annexation refers to the seizing of ter-

ritory of a State by another State and its juridical incorporation into this State.
Annexation is not a concept defined by law. It is a colloquial term applying to
a factual situation governed by various rules of international law. A distinction
must be made between the annexation of empty land and the annexation of
foreign territory.
The annexation of empty land, i.e. uninhabited territory not subject to sov-
ereignty (terra nullius) was in the past a way to acquire a territory under two
conditions. First, the territory must be seized by State agents (not private per-
sons) and it should be effective. For example, in a case concerning the occupa-
tion of Eastern Greenland by the Norwegian Government, the pcij has stated
that: “[…] a claim to sovereignty […] involves two elements each of which must
be shown to exist: the intention and will to act as sovereign, and some actual
exercise or display of such authority” [Judgment, Legal Status of Eastern Green-
land, pcij, pp. 45–46]. Accordingly, on that occasion, the mere discovery of the
island was considered an inchoate title and insufficient to base a title of sover-
eignty on. Second, the occupation should be peaceful and public. Third States
should be aware of this seizure and, if applicable, they may be in a position to
Annexation 173
advance a more valid title of sovereignty than the occupying State. By remain-
ing silent, third States are presumed to recognise the title of sovereignty. In this
regard, an arbitrator declared that “no contestation or other action whatever
or protest against the exercise of territorial rights by the Netherlands over the
Talautse […] Isles (including Palmas) has been recorded. The peaceful char-
acter of the display of Netherlands sovereignty for the entire period to which
the evidence concerning acts of display relates (1700–1906) must be admitted”
[Award, Island of Palmas Case, pca, p. 868; also: Judgment, Anglo-Norwegian
Fisheries Case (United Kingdom v. Norway), icj, pp. 138–139].
Nowadays, the only existing empty lands are the high seas, the seabed, outer
space, and the celestial bodies, but they are res communis and no State may an-
nex them [arts. 89 and 137 UN Convention on the Law of the Sea; art. ii Treaty
on Principles governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies]. Antarctica is
not terra nullius since several States have claimed sovereignty over parts of it.
However, the States concerned have agreed to demilitarize Antarctica and to
confine the mainland to scientific research without renunciation by any State
party of rights of or claims to territorial sovereignty [arts. i–iv The Antarctic
Treaty].
Ius ad bellum rules forbid States to annex territory of a foreign State [see:
Ius ad Bellum]. Thus, the well-known unsc Resolution 242 (1967) emphasizes
“the inadmissibility of the acquisition of territory by war”. When Israel
proclaimed “reunified Jerusalem, the eternal capital of the State of Israel”, the
unsc “reconfirm[ed] that the acquisition of territory by force [was] inadmis-
sible” and “that all legislative and administrative measures and actions taken
by Israel, the occupying Power, which purport to alter the character and status
of the Holy City of Jerusalem ha[d] no legal validity” [unsc Resolution 476
(1980), preamble and para. 3]. Similarly, when Iraq invaded Kuwait and decided
that it was its 19th province, the unsc immediately “decide[d] that annexation
of Kuwait by Iraq under any form and whatever pretext ha[d] no legal valid-
ity and [was] considered null and void” [unsc Resolution 662 (1990), para. 1].
Whilst the forced annexation of all or part of a foreign State violates the most
basic rules of international relations and is totally prohibited by international
law, ihl provides for a regulatory framework in respect of occupied territories
[see: Occupation].
Eric David – the views expressed are those of the author alone and do not nec-
essarily reflect the views of any institution the author is affiliated with
Bibliography
E. David, Principes de Droit des Conflits Armés (2012), pp. 562 et seq.
174 Anti-Personnel Mine Ban Convention (1997)
Anti-Personnel Mine Ban Convention (1997). The Convention on the Prohibi-

tion of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines
and on their Destruction (Anti-Personnel Mine Ban Convention or apmbc)
is the most widely ratified conventional arms disarmament treaty, with 164
States parties and 1 signatory (the Marshall Islands) as at 1 June 2018. It was
adopted in 1997, at a specially convened diplomatic conference in Oslo, and
entered into force on 1 March 1999.
The Convention was based on a draft adapted from the 1992 Chemical
Weapons Convention [see: Chemical Weapons Convention (1992)]. Article
1(a)-(b) apmbc prohibits all use within or outside armed conflict, as well as de-
velopment, production, acquisition, stockpiling, retention, and transfer of an-
ti-personnel mines. Allegations of use by States parties Sudan, Turkey, Ukraine,
and Yemen have been made in recent years by the civil society monitoring
network, Landmine Monitor [International Campaign to ban Landmines,
Landmine Monitor 2015]. Yemen has admitted using anti-personnel mines. As-
sisting, encouraging, or inducing prohibited activities are also unlawful under
the Anti-Personnel Mine Ban Convention [art. 1(c) apmbc].
According to Article 4 apmbc, each State is allowed up to four years, after
becoming party to the treaty, to destroy all stocks (aside from the “minimum
number absolutely necessary” for the “development of and training in mine
detection, mine clearance, or mine destruction techniques” under art. 3(1)
apmbc). No extension to the deadline is possible. As at November 2017, Greece
and Ukraine were in serious violation of the Convention, having failed to com-
plete destruction of their stockpiles by their four-year deadlines.
The Convention requires that States parties clear and destroy all anti-
personnel mines in mined areas under their jurisdiction or control, within ten
years of becoming party. However, it allows affected States to seek and obtain
extensions up to ten years at a time to this deadline from the other States par-
ties [art. 5 apmbc]. To date, several dozen have done so. As at October 2016, 37
States parties were confirmed, or strongly suspected to contain anti-personnel
mines. Consequently, they had Article 5 apmbc obligations to conduct surveys
and, where mines are found, clear and destroy all anti-personnel mines [Mine
Action Review, Clearing The Mines 2016 (2016), p. 1].
The Convention calls for States parties “in a position to do so”, to provide
support for risk education and victim assistance [art. 6(3) apmbc], but does
not explicitly require a State to assist its own mine victims. A verification and
compliance mechanism is included in the Convention, which foresees the pos-
sibility of non-consensual fact-finding [art. 8 apmbc], but the likelihood of
this occurring in practice is very low. Annual meetings of States parties are
complemented by five-yearly review conferences. The latest review conference
Anti-Terrorist Operations 175
(the third) was held in Maputo, Mozambique, in June 2014. No reservations are
allowed to the treaty’s provisions [art. 19 apmbc].
Stuart Casey-Maslen – the views expressed are those of the author alone and
do not necessarily reflect the views of any institution the author is affiliated with
Bibliography
Landmine and Cluster Munitions Monitor (http://www.the-monitor.org/en-gb/home
.aspx).
S. Maslen, The Convention on the Prohibition of the Use, Stockpiling, Production, and
Transfer of Anti-Personnel Mines and on their Destruction – Commentaries on
Arms Control Treaties (2006).
Mine Action Review (http://www.mineactionreview.org/).
UN Office at Geneva, Article 7 database.
Anti-Terrorist Operations. While not a legal term of art, the term anti-terrorist
or counter-terrorism operations is commonly used to describe the policies,
practices, techniques, and measures that governments use to combat or pre-
vent terrorism [see: Terrorism (International Law)], in particular, but not
exclusively, at the tactical level.
In principle, anti-terrorist operations against individuals suspected of in-
volvement in terrorism or terrorist organizations [see: Terrorist Organiza-
tions] are governed by a law enforcement and criminal justice paradigm.
Under the law enforcement or criminal justice paradigm, terrorism is treated
as a crime that engages domestic law enforcement mechanisms, including in
relation to the use of force, detention, or surveillance. The international legal
instruments applicable to specific acts of terrorism (such as the 1997 Interna-
tional Convention for the Suppression of Terrorist Bombing), or the regional
conventions addressing terrorism per se (such as the 2005 Council of Europe
Convention on the Prevention of Terrorism), frame terrorism from a criminal
justice and law enforcement perspective, criminalizing specific acts and orga-
nizing the repression of such acts, including their transnational dimension.
Yet, the label “anti-terrorist operation” is not reserved for or exclusively used
in this context. States frequently refer to “anti-terrorist operations” when faced
with a domestic insurgency, due to their reluctance to acknowledge that they
are involved in a non-international armed conflict and in order to de-legitimise
their opponents. Contemporary examples include the Ukrainian government’s
reference to “anti-terrorist operations” in the “Anti-Terrorist Operation Zone”
[osce Special Monitoring Mission to Ukraine, Protection of Civilians and their
Freedom of Movement in the Donetsk and Luhansk Regions (2015)] or the
176 Apartheid
Syrian President’s consistent claim that he is fighting terrorists [G. Baghdadi,

‘Assad: I Will not Stop Fight against “Terrorists”’, cbs News (2011)].
The question of whether such situations amount to a non-international
armed conflict, to which ihl applies, is not determined by the labelling of the
group as terrorist or the operations as anti-terrorist. Instead, the existence of
an armed conflict and the determination of the parties to such an armed con-
flict depends on the requirements of ihl, to be assessed in light of the relevant
facts [see: Non-International Armed Conflict].
However, in parallel to the traditional preference to treat insurgents as ter-
rorists, the armed conflict or war paradigm became increasingly prominent
when addressing terrorism with the so-called “war on terror” in the aftermath
of the attacks of 11 September 2011. On the one hand, in situations not amount-
ing to an armed conflict, ihl rules and concepts are relied upon to justify the
targeted killings of suspected terrorists abroad, as well as administrative de-
tentions outside the regular law enforcement and criminal justice framework
[see: Targeted Killing; Deprivation of Liberty; Terrorist Organizations]. On
the other hand, large-scale military force is deployed to prevent and combat
terrorism, which is illustrated by the 2001 invasion of Afghanistan or the use of
force by an international coalition against isil in Iraq and Syria since 2014. At
the same time, the adequacy of existing ihl concepts and rules to address a
purportedly new kind of armed conflict against terrorist groups with transna-
tional reach was challenged, most prominently in relation to combatant status
[see: Combatants]. Blurring the lines between terrorism and armed conflict, as
well as the often unreflective mixing of the respective legal regimes governing
terrorism and armed conflict, put a significant amount of pressure not only on
ihl, but also on ihrl.
Sandra Krähenmann – the views expressed are those of the author alone and
Bibliography
A. Bianchi, Y. Naqvi, International Humanitarian Law and Terrorism (2011).
H. Duffy, The ‘War on Terror’ and the Framework of International Law (2015).
M. Sassòli, Transnational Armed Groups and International Humanitarian Law, Pro-
gram on Humanitarian Policy and Conflict Research (2006).
B. Saul, ‘Terrorism and International Humanitarian Law’, in B. Saul (ed.), Research
Handbook on International Law and Terrorism (2014).
Apartheid. The historical origins of the term apartheid come from the Af-
rikaans expression for apartness designated to describe the system of racial
Apartheid 177
segregation in South Africa. The legal concept of apartheid also originated in

this context but, following the wave of decolonization in Africa and Asia in the
1960s and onwards, it has now acquired independent application throughout
various branches of international law.
Apartheid violates the udhr and is specifically prohibited in the Interna-
tional Convention for the Elimination of All Forms of Racial Discrimination
(cerd) and the International Convention on the Suppression and Punishment
of the Crime of Apartheid (the Apartheid Convention).
Apartheid is also a crime against humanity. In 1973, the Apartheid Conven-
tion was adopted by the unga and entered into force in 1976. The Conven-
tion declared that “apartheid is a crime against humanity and that inhuman
acts resulting from the policies and practices of […] racial segregation and dis-
crimination […] are crimes violating the principles of international law” [art.
i Apartheid Convention]. Although the Apartheid Convention specifically ad-
dressed the apartheid system in South Africa, it covers any such policies and
practices engaging in various “inhuman acts committed for the purpose of es-
tablishing and maintaining domination by one racial group of persons over
any other racial group of persons and systematically oppressing them” [art. ii
Apartheid Convention]. In 1998, the icc Statute included apartheid as a crime
against humanity, which concerns “inhumane acts of a character similar to”
the other crimes against humanity in the icc Statute and “committed in the
context of an institutionalized regime of systematic oppression and domina-
tion by one racial group over any other racial group or groups and committed
with the intention of maintaining that regime” [art. 7(2)(h) icc Statute].
In addition, “[p]ractices of apartheid” constitute a grave breach of api in
international armed conflict, “when committed wilfully and in violation of the
Conventions of the Protocol” [art. 85(4)(c) api; see: Grave Breaches]. State
practice indicates that the adoption of the practices of apartheid constitutes a
crime against humanity and a war crime. Such practices can be incorporated
in the customary rule of ihl prohibiting non-discrimination [rule 88 icrc
Customary ihl Study; see: Non-Discrimination].
Sunkyung Kim – the views expressed are those of the author alone and do not
necessarily reflect the views of the Ninth Circuit Court of Appeals
Bibliography
J. Dugard, Human Rights and the South African Legal Order (1978).
J. Dugard, J. Reynolds, ‘Apartheid, International Law, and the Occupied Palestinian Ter-
ritory’, 24(3) ejil (2013).
J. Dugard, N. Haysom, G. Marcus, The Last Years of Apartheid: Civil Liberties in South
Africa (1992).
178 Armed Forces
A. Zahar, ‘Apartheid as an International Crime’, in A. Cassese (ed.), Oxford Companion

to International Criminal Justice (2009).
Area Bombardment; see: Indiscriminate Attacks
Armed Forces. The armed forces of a party to a conflict include “all organized
armed forces, groups and units which are under a command responsible to
that Party for the conduct of its subordinates” [art. 43(1) api; rule 4 icrc Cus-
tomary ihl Study]. Members of the armed forces are considered to be combat-
ants and are entitled to prisoner of war status [see: Combatants; Prisoners of
War]. This definition applies in international armed conflict, but it may be of
relevance in non-international armed conflict for the purposes of the principle
of distinction [see: Direct Participation in Hostilities; Distinction].
The requirements of visible distinction from the civilian population and
respect for ihl are no longer considered to be constitutive elements of the
definition of armed forces under Article 43(1) api. They have instead become
individual obligations, the violation of which may entail consequences for the
combatant concerned, such as, in particular, the loss of combatant privileg-
es or prosecution for violations of ihl [see: Combatants]. Article 43(1) api
includes a requirement of an internal disciplinary system to enforce compli-
ance with ihl (generally supplementing ihl provisions concerning command
responsibility) [see: Discipline; Command Responsibility], but this aspect
does not affect the definition of armed forces for determining prisoner of war
status.
Any armed group belonging to a party to an armed conflict may fall under
the definition of armed forces. It is, therefore, no longer necessary to distin-
guish between regular and irregular armed forces. However, in some instances,
paramilitary or armed law enforcement agencies, such as police forces, gen-
darmerie, and constabulary have also been formally incorporated into armed
forces (e.g. in Argentina, Belgium, France, Germany, the Netherlands, the
Philippines, South Korea, and Zimbabwe). Such formal incorporation usually
requires notification to the other parties to the conflict in light of the prin-
ciple of distinction, although such notification does not affect the status of the
persons concerned.
Domestic law regulates membership in States’ regular armed forces and
in paramilitary or law enforcement agencies incorporated into State armed
forces. Upon completion of active duty, a person no longer belongs to regu-
lar State armed forces and becomes entitled to the protection conferred on
Armed Groups 179
civilians [see: Civilians]. Conversely, domestic law usually does not regulate
membership in irregularly constituted armed forces, such as militias, volun-
teer corps, or organized resistance movements belonging to a belligerent party.
This determination may, however, be made on the basis of criteria applying
to organised armed groups in non-international armed conflicts [icrc (N.
Melzer), Interpretive Guidance on the Notion of Direct Participation in Hos-
tilities under International Humanitarian Law (2009), p. 25; see: Direct Partici-
pation in Hostilities; Armed Groups].
Anastasia Kushleyko – the views expressed are those of the author alone and
do not engage the International Committee of the Red Cross in any way
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law
(2005), pp. 14–17.
icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law (2009), pp. 21–25.
Armed Groups. Armed groups or, more formally, organized armed groups, are
the military forces of non-State parties to armed conflict. However, the terms
“armed groups” and “non-State parties to conflict” tend to be used interchange-
ably, as the delineation between a non-State party and its armed forces is often
fictional. Compare for example the National Democratic Front of the Philip-
pines (ndfp) and the Fuerzas Armadas Revolucionarias de Colombia (farc).
The ndfp is the overall political entity, which has responsibility over the New
People’s Army (npa), its military wing [ndfp, Declaration of Undertaking to
Apply the Geneva Conventions of 1949 and Protocol i of 1977 (1996)]. Here,
the ndfp is the party to the conflict, while the npa is the armed group. For
the farc, however, there is no structural control by a political wing over the
military wing, so the party to the conflict and the armed group are one and
the same. Armed groups are also commonly referred to as rebel movements,
guerrillas, national liberation movements, freedom fighters, and terrorist or-
ganisations, etc., although these classifications have no significance under ihl
[see: Guerrilla; Freedom Fighters; Terrorist Organizations].
In non-international armed conflict, treaty-based obligations for armed
groups first arose under Common Article 3 GCs [see: Non-International Armed
Conflict; Common Article 3]. In order to be bound, armed groups must be suf-
ficiently organised and involved in protracted armed violence with govern-
ment armed forces or other armed groups. apii creates a more detailed set of
180 Armed Groups
obligations on dissident armed forces or organized armed groups which have

a responsible command and exercise sufficient control over territory, enabling
them to carry out sustained and concerted military operations and to imple-
ment apii. Armed groups may also have obligations in international armed con-
flict. The authority representing a people engaged in an armed conflict, in the
exercise of its right to self-determination, may make a unilateral declaration to
apply the GCs and api [arts. 1(4), 96(3) api; see: International Armed Conflict].
It is often difficult to determine when an armed group exists, such as when
different small groups align with an umbrella organization, when armed orga-
nizations unite transnationally and, potentially, when organizations operate as
affiliates in cyberspace.
While there is a general agreement that armed group obligations exist under
ihl, the origin of these obligations has been heavily debated. The most com-
mon arguments are that they are bound: (i) via the law of the State on whose ter-
ritory they operate; (ii) because their members are bound by ihl as individuals;
(iii) by virtue of the fact that they exercise de facto governmental functions; (iv)
because of the (limited) international legal personality that they possess; or
(v) because they have consented to be bound. Notwithstanding declarations
under Article 96 api, non-State parties to conflict cannot become parties to in-
ternational treaties such as the GCs, nor does their practice, in the view of the
majority, contribute to the formation of customary international law.
The ability of armed groups to comply with their legal obligations is impact-
ed by their non-State status. This is most notable where a legal basis is required
for a particular action, such as the legal capacity to detain and to hold fair trials
in accordance with ihl [see: Deprivation of Liberty; Regularly Constituted
Courts]. While States can always derive legal basis in domestic legislation, the
ability of armed groups to do “the same” is debatable. The icrc has suggested
that, as armed groups are called upon to ensure respect for ihl, their courts
could be considered compliant with Common Article 3 GCs where they are
constituted in accordance with the “laws” of the armed group, or where they
operate as existing courts applying existing legislation [2016 icrc Commentary
gci, paras. 689–695]. In the first known judicial pronouncement on the mat-
ter, a Swedish court has recently ruled that armed groups may only hold trials
under the latter circumstance [Judgment, Sakhanh, Stockholm District Court,
B 3787-16]. In terms of security detention, States have asserted their power to
detain in non-international armed conflict, without reference to whether such
power extends to armed groups as well [Preamble, Resolution 1 of the 32nd
International Conference of the Red Cross and Red Crescent (2015)].
Armed Groups 181
As non-international armed conflict does not encompass the notion of com-

batant privilege [see: Combatants; Direct Participation in Hostilities], armed
group members are not entitled to prisoner of war status when captured [see:
Prisoners of War]. They may be tried for mere participation in hostilities,
although apii provides that authorities in power at the end of the conflict shall
endeavour to grant the broadest possible amnesty to persons who have partici-
pated in the armed conflict [see: Amnesty].
There is further controversy as to whether armed groups qualify as “armed
forces” as generally understood under ihl [see: Armed Forces]. This is par-
ticularly relevant to the determination as to whether the actions of members
of armed groups are exempt from certain counter-terrorism treaties that do
not apply to the activities of armed forces, such as the 1997 International Con-
vention for the Suppression of Terrorist Bombings (Terrorist Bombing Con-
vention) [art. 19(2) Terrorist Bombing Convention]. As many such acts (e.g.
the bombing of a government military weapons depot) would not be per se
prohibited by ihl, the incentive for armed groups to comply with ihl may
be further diluted if these acts will nonetheless be considered terrorism un-
der international law [see: Terrorism (International Law)]. Instead, armed
groups should be encouraged to comply with ihl in order to have the pos-
sibility to distinguish themselves from terrorist organisations [see: Terrorist
Organizations].
Armed groups are also increasingly called upon to respect certain human
rights obligations [see: International Human Rights Law], and are explic-
itly referred to in some human rights instruments. The Optional Protocol to
the Convention of the Rights of the Child on the Involvement of Children in
Armed Conflict (opac) [see: Convention on the Rights of the Child (1989)
and its Protocols] and the African Union Convention for the Protection and
Assistance of Internally Displaced Persons in Africa (Kampala Convention)
have provisions exclusively addressing “armed groups”, although there is con-
troversy as to whether direct obligations arise. In the case of the opac, more
stringent obligations are put on armed groups than States. This runs contrary
to the ihl equality of belligerents principle [see: Belligerents, Equality of],
and has been criticized by commentators and armed groups alike. An emerg-
ing debate considers the extent to which armed groups that control territory
should have positive human rights obligations regarding security, healthcare,
education, etc. At issue is the fulfilment of rights of populations living in such
areas considered alongside the policy implications of encouraging non-State
service delivery and governance.
182 Armistice
There is a growing awareness of the need to engage armed groups towards

compliance with their ihl obligations and other international standards. The
icrc engages armed groups in confidential dialogue and disseminates ihl to
their forces in many conflicts throughout the globe. The non-governmental or-
ganization Geneva Call has created a series of thematic Deeds of Commitments
allowing armed groups to publicly commit to international standards, and
submit to a monitoring regime. Thematic areas addressed are anti-personnel
landmines, children and armed conflict, and sexual violence/gender discrimi-
nation [see: Landmines; Children; Child Soldiers; Rape and Sexual Violence;
Gender Violence; Non-Discrimination].
Jonathan Somer – the views expressed are those of the author alone and do not
necessarily reflect the views of any institution the author is or has been affiliated
with
Bibliography
J.K. Kleffner, ‘The Applicability of International Humanitarian Law to Organized
Armed Groups’, 93(882) irrc (2011).
T. Rodenhäuser, Organizing Rebellion, Non-State Armed Groups under International
Humanitarian Law, Human Rights Law, and International Criminal Law (2018).
M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with
International Humanitarian Law’, 1(1) jihls (2010).
Armistice. An armistice is agreed upon by belligerent parties if they wish to

provisionally put an end to the hostilities. An armistice may be general, sus-
pending the military operations of the belligerent States “everywhere”, but can
also be geographically defined or limited to “certain fractions” of the belliger-
ent’s armed forces [art. 37 1907 Hague Regulations]. In addition, it can serve a
limited, humanitarian purpose. Article 15 gci, for example, refers to armistices
when demanding that they be agreed upon “[w]henever circumstances per-
mit” to allow for “the removal, exchange and transport of the wounded left on
the battlefield”.
Armistice agreements must be distinguished from ceasefire agreements.
The latter are concluded with a view to temporarily suspend hostilities, for ex-
ample, to allow for humanitarian relief to be delivered. Conversely, the former
aim at providing an opportunity for making preparations for the termination
of an armed conflict. In other words, they are adopted to suspend military op-
erations and thereby “pave the way for peace negotiations”, in order for the
Arms Trade Treaty (2014) 183
suspension of operations to become a permanent termination of hostilities

[J. Kleffner, ‘Scope of Application’, in D. Fleck (ed.), The Handbook of Inter-
national Humanitarian Law (2013), p. 66]. Armistices therefore form the first
stage of the conclusion of a peace treaty; a step before the stage of preliminar-
ies of peace or agreements in principle [see: Peace Treaty]. A general armistice
may nonetheless be seen as a “general close of military operations” for the pur-
poses of the application of the gciv [art. 6 gciv].
While historically an armistice agreement was not considered to (automati-
cally) end the “state of war”, it has been submitted that this may be the case if the
parties to such an agreement intend it to have that effect [R. Baxter, ‘Armistices
and other Forms of Suspension of Hostilities’, 149 Recueil des Cours (1976), p.
353]. Furthermore, as few conflicts are treated as giving rise to a formal state of
war nowadays, it appears that the difference between armistices and ceasefires,
or other forms of suspension of hostilities, “has become increasingly blurred”
[Kleffner, p. 65]. Armed conflicts may therefore also end without a formal peace
treaty, but rather as the result of an armistice or ceasefire reflecting the mutual
consent of the parties to terminate the armed conflict [Kleffner, p. 69].
Finally, it must be noted that armistice agreements qualify as “special agree-
ments” and may therefore not “adversely affect the situation of” protected per-
sons, “nor restrict the rights” conferred upon them by the GCs [art. 6 GCI; art.
6 GCII; art. 6 GCIII; art. 7 gciv; see: Special Agreements]. This is particularly
important for prisoners of war who have not yet been repatriated by the time
an armistice takes effect [2016 icrc Commentary gci, paras. 957, 985].
Rogier Bartels – the views expressed are those of the author alone and do not
Bibliography
R. Baxter, ‘Armistices and other Forms of Suspension of Hostilities’, 149 Recueil des
Cours (1976).
J.K. Kleffner, ‘Scope of Application’, in Fleck, D. (ed.), The Handbook of International
Humanitarian Law (2013).
Arms Trade Treaty (2014). The Arms Trade Treaty (att) regulates the interna-
tional trade of conventional arms. The Treaty’s entry into force on 24 December
2014 followed a gestation that was heavily contested by a number of stakehold-
ers. Critics note the substantial input of arms manufacturing companies in the
negotiations. The final drafts presented at two preparatory conferences in
184 Arms Trade Treaty (2014)
2012 and 2013 both failed to reach consensus. Then, on 2 April 2013, the unga
adopted the final draft of the President of the second conference, in spite of
objections from Syria, Iran, and North Korea, and putting aside Russian argu-
ments about the failures to reach consensus. The adopted text of the att is a
compromise agreement, seeking to balance human security and humanitarian
interests against State security and economic interests (including self-defence
and the protection of the legal arms industry).
From any stakeholder’s perspective, the entry into force of the att represent-
ed a watershed moment, as it binds States parties to consider humanitarian con-
cerns when regulating arms trade actors. It is the first multilateral international
treaty to require States parties to prevent the transfer of weapons where there
are concerns that the weapons will be used to commit international crimes,
including violations of ihl [art. 6(3) att]. States parties must also deny an
arms transfer if it would violate other of the State’s international obligations,
including obligations pursuant to Chapter vii measures of the unsc, in par-
ticular arms embargoes [art. 6(1) att (2013); see: Embargo].
The scope of the att extends to eight specified categories of conventional
weapons, seven of which derive from the UN Register of Conventional Arms,
namely: battle tanks, armoured combat vehicles, large-calibre artillery systems,
combat aircraft, attack helicopters, warships, missiles, and missile launchers.
The eighth category includes small arms and light weapons [art. 2 att; see:
Small Arms and Light Weapons]. The export of ammunitions and munitions,
as well as parts and components, are also covered [arts. 3, 4 att]. It should
be noted that the specified categories are ad minimum requirements: the att
encourages States parties to include the broadest range of conventional arms
in their national lists.
The Treaty does not address non-conventional weapons, i.e. the nuclear,
chemical, and biological weapons prohibited under other international and
domestic regimes. Nonetheless, the att may have indirect effects on the non-
conventional weapon capabilities of rogue States by regulating the transfer
of missiles, parts, and components, which could conceivably be used in the
development or construction of non-conventional weapons.
The att applies to activities that constitute “transfers” within the meaning
of the Treaty, namely the export, import, transit, trans-shipment, and broker-
ing of arms [art. 2(2) att]. Provisions are also aimed at tackling the diversion
of arms away from the intended end-recipient [art. 11 att]. Notably, the Treaty
does not cover cross-border movements of conventional arms by or on behalf
of a State party for the State’s own use. A State’s military exercise outside of its
borders, or its involvement in peacekeeping missions, are therefore unaffected
Arms Trade Treaty (2014) 185
by the Treaty [see UN Office for Disarmament Affairs (unoda), att Imple-
mentation Toolkit].
The text has been criticized as void of substance, too vague in its content,
or toothless in lacking mechanisms to enforce its substance against breaches.
Rather than restricting major arms flows that facilitate breaches of ihl, there
is the possibility that the att lends legitimacy to the trade without imposing
substantive regulation. Critics point to the limited legal value of broadly-word-
ed provisions, such as the requirement to establish and maintain “a national
control system” for exports, which grant States parties a large degree of inter-
pretive space [Preamble, att Principles]. Implementation and enforcement is
left largely to the discretion of States parties [art. 5 att]. Some early anecdotal
evidence of domestic implementation of the att suggests it may in fact be a
source of increased trade liberalization, when compared to preceding domes-
tic export regulations.
The provisions contained in Article 6 att can be criticized as too vague,
lacking detailed criteria for a State to assess the likelihood of ihl violations.
During the negotiations, the icrc advocated for stronger, more detailed
benchmarks: the end-users’ record of violating ihl, their attempts to prevent
or repress violations, the rule of law characteristics of the State, and record
of diversion of arms [icrc, Arms Transfer Decisions: Applying International
Humanitarian Law and International Human Rights Law Criteria – A Practical
Guide (2016)].
Even so, at the level of substantive international law obligations, the att is
an unprecedented development. For centuries, the arms trade has taken place
with remarkably little legal regulation or effective oversight, restricted only
by municipal export laws that tended not to explicitly recognise ihl criteria,
combined with ad hoc arms embargoes by the unsc and other regional bodies
such as the EU. The att now faces twin challenges. Firstly, it will always be chal-
lenging for States parties to distinguish between arms destined for legitimate
security needs and arms that will be used to commit serious violations of ihl.
Secondly, the arms trade is enormously lucrative. In implementing the Treaty,
many States will be under considerable pressure for regulation to remain as
liberal as ever. While the Treaty is rightly heralded as an unprecedented devel-
opment, its practical success turns on whether States parties, many of whom
have violated unsc embargoes in the past, will pay respect to the spirit of the
obligations imposed by the att.
Tomas Hamilton – the views expressed are those of the author alone and do
not necessarily reflect the views of the Extraordinary Chambers in the Courts of
Cambodia
186 Artillery
Bibliography
D. Akande, ‘What is the Meaning of “Consensus” in International Decision Making?’,
ejil: Talk! (2013).
A. Clapham, S. Casey-Maslen, G. Giacca, S. Parker (eds.), The Arms Trade Treaty:
Artillery. Artillery is a generic term for a range of large-calibre ground- or ship-

based weapons systems that fire munitions especially at targets on land, but
also at those in the air or at sea. The targets may be in direct view, but more
often this is not the case. Originally coined as a term to describe military cata-
pults and arbalests, artillery was transformed by the use of gunpowder, which
propelled projectiles at far higher speed and over much greater distances. The
process of rifling made artillery more accurate, while the industrial revolution
enabled faster production of artillery pieces.
Today, “artillery” encompasses cannon/field guns, mortars [see: Mortars],
and ground-launched missiles or rockets. The 1990 Conventional Forces in
Europe Treaty defined artillery as “large calibre systems capable of engaging
ground targets, by delivering primarily indirect fire. Such artillery systems pro-
vide the essential indirect fire support to combined arms formations” [art. II(1)
(F) 1990 Treaty on Conventional Armed Forces in Europe]. With respect to
“large-calibre” artillery systems, the 2013 Arms Trade Treaty (att) [see: Arms
Trade Treaty (2014)] employs a 2003 UN definition: “[g]uns, howitzers, artillery
pieces, combining the characteristics of a gun or a howitzer, mortars or mul-
tiple-launch rocket systems, capable of engaging surface targets by delivering
primarily indirect fire, with a calibre of 75 millimetres and above” [unsg, Con-
tinuing operation of the United Nations Register of Conventional Arms and its
Further Development (2003), Annex iv, para. iii].
There is no ihl treaty dedicated to artillery. However, when any munitions
fired by artillery fall within the definitions of an anti-personnel mine, or a clus-
ter munition contained within the 1997 Anti-Personnel Mine Ban Convention,
or the 2008 Convention on Cluster Munitions, respectively, such acts would be
prohibited by those treaties to States parties [see: Anti-Personnel Mine Ban
Convention (1997); Convention on Cluster Munitions (2008)].
Moreover, as with any weapons, their use in the conduct of hostilities is sub-
ject to the ihl rules of distinction, precautions, and proportionality in attack
[see: Distinction; Precautions, Passive; Precautions, Active; Proportionality].
The degree of accuracy required for lawful use of artillery is not settled under
ihl, though some discussion of the issue is found in jurisprudence before the
Asymmetric Warfare 187
icty. Thus, for example, Major-General Stanislav Galić, commander of Bosnian

Serb forces in and around Sarajevo from September 1992 to August 1994, was
charged and convicted of “a coordinated and protracted campaign of artillery
and mortar shelling onto civilian areas of Sarajevo and upon its civilian popula-
tion. The campaign of shelling resulted in thousands of civilians being killed or
injured” [Judgment, Galić, icty, Trial Chamber, paras. 15, 763]. In the Milošević
case, “modified air-bombs” (air bombs to which Bosnian Serb forces attached
rockets and which were then fired from launch pads on the ground) were said
to deviate from the intended target by as much as one kilometre [Judgment,
D. Milošević, icty, Trial Chamber, paras. 92, 93, 97]. The icty Trial Chamber
found that the bombs were “highly inaccurate” and “indiscriminate” weapons
[D. Milošević, para. 912]. In contrast, in the later Gotovina case, an icty Trial
Chamber concluded that multiple-barrel rocket launchers were not inherently
indiscriminate, when used in an urban setting [Judgment, Gotovina et al., icty,
Trial Chamber, para. 1897], even though almost one half of the rockets fired
could be expected to land between 300 and 900 metres from their target.
Stuart Casey-Maslen – the views expressed are those of the author alone
and do not necessarily reflect the views of any institution the author is affiliated
with
Bibliography
M.E. Haskew, Postwar Artillery 1945-Present – The Essential Weapons Identification
Guide (2011).
D. Kravetz, ‘The Protection of Civilians in War: The icty’s Galić Case’, 17(3) Leiden
Journal of International Law (2004).
Asymmetric Warfare. Asymmetric warfare denotes armed conflict that is

characterised by inequality of arms between the parties involved (States or
non-State actors) and a tendency by the militarily weaker opponent to resort
to unlawful methods of warfare to compensate for its inferior position. Asym-
metric warfare may manifest itself on different levels, such as the operational
level (including ruses, covert operations, perfidy, terrorism, etc.), the strategic
military level (guerrilla warfare, massive retaliation, Blitzkrieg, etc.), and the
strategic political level (moral or religious war, the clash of cultures, etc.). It
may assume different forms, including asymmetry of power, means, methods,
organization, values, and time.
Warfare has been traditionally understood to refer to armed conflict be-
tween States of roughly equal military strength. The wars of the past primarily
188 Assigned Residence
took place between the troops of national armies that confronted each other
in open battle.
However, since the end of the Cold War, armed conflicts have become in-
creasingly asymmetric due to poorly organised and equipped armed groups
confronting more powerful States [see: Armed Groups]. The overwhelming
technological and military superiority of States caused such groups to forego
distinguishing themselves and to employ various forms of guerrilla warfare
[see: Guerrilla]. As a result, military clashes often occur in densely populated
areas nowadays, which does not only put the civilian population at the in-
creased risk of accidental harm, but may also facilitate the direct participation
of civilians in hostilities [see: Direct Participation in Hostilities]. Moreover,
because of their inability to overcome the enemy during direct confrontation,
armed groups are increasingly resorting to means and methods of warfare pro-
hibited by ihl. This may include perfidious conduct [see: Perfidy], conducting
indiscriminate attacks [see: Indiscriminate Attacks], or even directly target-
ing civilians, humanitarian, or medical personnel and their infrastructure [see:
Attacks against Civilians and Persons Hors de Combat; Medical Personnel;
Humanitarian Assistance]. State armed forces, in turn, are often unable to ac-
curately identify the adversary and run the risk of being attacked by persons
who are not distinguishable from the civilian population [see: Combatants;
Armed Groups].
Overall, this development has put considerable strain on the concepts
of non-reciprocity and the equality of belligerents [see: Reciprocity; Bellig-
erents, Equality of], as well as the willingness of both State armed forces and
non-State armed groups to accept their obligations under ihl.
Anastasia Kushleyko – the views expressed are those of the author alone and
do not engage the International Committee of the Red Cross in any way
Bibliography
R. Geiss, ‘Asymmetric Conflict Structures’, 88(864) irrc (2006).
A. Paulus, M. Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict: a
Tentative of Conceptualization’, 91(873) irrc (2009).
T. Pfanner, ‘Asymmetrical Warfare from the Perspective of Humanitarian Law and Hu-
manitarian Action’, in 87(857) irrc (2005).
Asphyxiating Gases; see: Geneva Gas Protocol (1925)
Assigned Residence. Whilst the law relating to non-international armed

conflict is more ambiguous [see: Deprivation of Liberty], the GCs explicitly
allow for the detention of protected persons (civilians) through internment or
Assigned Residence 189
placing in assigned residence in two contexts in the context of an international

armed conflict [see: Protected Persons; Internment].
The first scenario concerns alien civilians in the territory of a party to an
international armed conflict, permissible “only if the security of the Detaining
Power makes [internment or placing in assigned residence of a civilian] abso-
lutely necessary”, or if the civilian voluntarily demands this and his or her situ-
ation “renders this steps necessary” [art. 42 gciv]. The icty has interpreted
Article 42 gciv as permitting internment or assigned residence only if there
are “serious and legitimate reasons” to think that the interned persons may
seriously prejudice the security of the detaining power by means such as sabo-
tage or espionage [Judgment, Delalić et al., icty, Trial Chamber, para. 1134].
Persons so detained are entitled “to have such action reconsidered as soon as
possible by an appropriate court or administrative board designated by the
Detaining Power for that purpose”. If the internment or assigned residence
is maintained, Article 43 gciv explains that “[…] the court or administrative
board shall periodically, and at least twice yearly, give consideration to his or
her case, with a view to the favourable amendment of the initial decision, if
circumstances permit”.
Civilians in an occupied territory may also be interned or placed in assigned
residence [see: Occupation]. Article 78 gciv allows the occupying power, at
the most, to subject civilians to internment or assigned residence within the
frontiers of the occupied country “if the Occupying Power considers it nec-
essary, for imperative reasons of security, to take safety measures concerning
protected persons”. It is undisputed that the direct participation of civilians
in hostilities gives rise to the classification of such civilians as persons posing
a serious threat to security within the meaning of Articles 42 and 78 gciv
[icrc, Internment in Armed Conflict: Basic Rules and Challenges, Opinion
Paper (2014), p. 4; see: Direct Participation in Hostilities]. Decisions regarding
assigned residence or internment of civilians in an occupied territory “shall
be made according to a regular procedure to be prescribed by the Occupy-
ing Power in accordance with the provisions of the present Convention. This
procedure shall include the right of appeal for the parties concerned. Appeals
shall be decided with the least possible delay […]” [art. 78 gciv]. If a decision
to intern or place in assigned residence is upheld, this “[…] shall be subject to
periodical review, if possible every six months, by a competent body set up by
the said Power”.
When considering measures of control over protected persons, a detaining
or occupying power “may not have recourse to any other measure of control
more severe than that of assigned residence or internment” [art. 41 gciv; 1958
icrc Commentary gciv, pp. 257, 260–261]. Distinguishing between the two
situations described in Articles 42 and 78 gciv, the icrc Commentary further
190 Assigned Residence
suggests that the internment or assigned residence of protected persons in

occupied territories, under Article 78 gciv, should be even more exceptional
than in the case of the internment or assigned residence of protected persons
within the territory of a party to the conflict, under Article 42 gciv [1958 icrc
Commentary gciv, p. 367].
gciv contains a section devoted to the treatment of civilian detainees
[arts. 88–131 gciv; see: Deprivation of Liberty, Treatment]. However, with
the exception of the right to “be treated with humanity” and the right “not be
deprived of the rights of fair and regular trial”, certain regulations for the treat-
ment of such detainees may be derogated from pursuant to Article 5 gcvi [see:
Derogation].
The internment or assigned residence of civilians in an international armed
conflict must cease “as soon as possible after the close of hostilities” [art. 133(1)
gciv]. Article 132(1) gciv additionally provides that, during hostilities or oc-
cupation, an interned civilian must be released “as soon as the reasons which
necessitated his internment no longer exist”. This is reinforced by Article 75(3)
api, which includes, as a fundamental guarantee applicable to all persons
who are in the power of a party to an international armed conflict, the right
to be released “as soon as the circumstances justifying the arrest, detention or
internment have ceased to exist”. It should be noted that the “unlawful confine-
ment of a protected person” amounts to a grave breach of gciv [art. 147 gciv;
see: Grave Breaches]. Unjustifiable delay in the repatriation of civilians also
constitutes a grave breach of api [art. 85(4)(b) api].
For civilians who have been convicted and sentenced to imprisonment, or
against whom criminal, non-disciplinary, proceedings are pending, Article
133(2) gciv acts as an exception to the obligation under Article 133(1) gciv
to release civilian internees after the close of hostilities. Such persons may
be detained until the close of pending proceedings and until completion of
the sentence. This remains a wide discretionary power in the hands of the
detaining or occupying power [1958 icrc Commentary gciv, pp. 515–516].
Alex Conte – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Commission of Jurists
Bibliography
R. Goodman, ‘The Detention of Civilians in Armed Conflicts’, 103(1) ajil (2009).
J. McLoughlin, G.P. Noone, D.C. Noone, ‘Security Detention, Terrorism, and the Preven-
tion Imperative’, 40(3) Case W. Res. J. Int’l L. (2009).
B. Oswald, ‘The Detention of Civilians in Military Operations: Reasons for and
Challenges to Developing a Special Law of Detention’, 32 Melbourne University Law
Review (2008).
Attacks 191
Attacks. Under ihl, attacks are defined as “acts of violence against the adver-
sary, whether in offence or in defence” [art. 49(1) api]. Such acts may be carried
out at any point during the armed conflict and by any of the parties to it.
While potentially confusing, it is essential to distinguish at the outset the no-
tion of attack under ihl from that of “armed attack” under the UN Charter. The
latter refers to an act triggering the individual or collective right to self-defence
under ius ad bellum. In contrast, the notion of attack, like all aspects of ihl, has
no bearing on and is not influenced by the reasons which motivated the armed
conflict [see: Ius ad Bellum]. By the same reasoning, the ihl notion of attack
is also distinct from the ius ad bellum notions of aggression and use of force,
which are assessed separately from an ihl determination of armed conflict.
This entry therefore aims to clarify the definition of attack under ihl, as
provided in Article 49(1) api. As a first logical point, the qualification of acts of
violence excludes from the definition any non-violent act even when directed
against the enemy, such as propaganda encouraging popular insurrection or
blocking the enemy’s supply routes. In this sense, it is generally considered
that the notion of attack is narrower than that of hostilities, since the latter
may include acts falling below the threshold of violence, and narrower than
the notion of military operations, which may be non-violent. By contrast, all
military operations by the armed forces of a party to the conflict that resort
to means of warfare are considered as attacks under ihl. An act of violence
under ihl must be aimed at weakening the military potential of the enemy
and, hence, operations the purpose of which is to destroy, damage or neutral-
ize enemy targets fall under the definition of attack.
The question of whether the neutralization of targets amounts to an attack
has given rise to heated debates, particularly in relation to cyber warfare [see:
Cyber Warfare]. The definition of military objectives, to which attacks shall be
strictly limited, encompasses not only total or partial destruction and capture,
but also the neutralization of objects [see: Military Objectives]. It therefore
implies that violent acts aimed at neutralizing military objectives are indeed
attacks [art. 52(2) api]. That being said, the notion of attack does not presume
the status of the target. The rules on the conduct of hostilities strictly require
that all attacks be carried out in accordance with the principle of distinction
[see: Distinction]. Nonetheless, attacks against the civilian population or civil-
ian objects are still attacks, albeit prohibited ones (provided that, for them to
be violations of ihl, there is a nexus with the armed conflict). This has been
confirmed by extensive case law that has considered attacks against civil-
ians as war crimes, as well as by the icc Elements of Crimes, which interpret
Article 8(2)(b)(i) icc Statute as requiring that the perpetrator directed an at-
tack against the civilian population as such, or against individual civilians not
192 Attacks
taking direct part in hostilities. In that respect, it is worth mentioning that,

in the Ntaganda case, icc Pre-Trial Chamber ii included in the definition of
the war crime of attacking civilians different types of conduct: “any conduct,
including shelling, sniping, murder, rape, pillage, attacks on protected objects
and destruction of property, may constitute an act of violence for the pur-
pose of the war crime of attacking civilians” [Decision on the Confirmation
of Charges, Ntaganda, icc, Pre-Trial Chamber ii, para. 46; see: Attacks against
Civilians and Persons Hors de Combat].
Moreover, attacks are acts of violence against the adversary. This qualifica-
tion ensures a link with the armed conflict: the notion of attack does not cover
acts of violence that would normally fall under ordinary crimes or delinquen-
cy, even if carried out while taking advantage of the existence of the violent
situation inherent to an armed conflict. In addition, as mentioned before, the
concept of adversary should be understood in a broad sense, to include the
enemy territory and population, as the definition is not restricted to lawful at-
tacks against legitimate targets.
Contrary to the colloquial understanding, which often refers to offensive or
aggressive acts, the legal notion of attacks under ihl includes both acts of vio-
lence carried out in offence or in defence. This reinforces the irrelevance of ius
ad bellum, as attacks may be carried out both at the beginning of the conflict
and at any point during the course thereof. It is also meant to cover the use of
armed force to slow or halt an attack by the enemy, as well as counter-attacks.
It should be noted that attacks as defined in api are limited to acts which
may affect the civilian population on land, although such acts may be carried
out from land, air, or sea. This restriction was extensively discussed during the
treaty’s travaux préparatoires, and is meant to avoid any unintentional modi-
fication of the bodies of international law governing sea and air warfare [see:
Aerial Warfare; Naval Warfare].
Concerning the geographical scope of application, Article 49 api adds that
the definition applies to “all attacks in whatever territory conducted, includ-
ing the national territory belonging to a Party to the conflict, but under the
control of the adverse Party”. The purpose is to prevent parties to the conflict
from denying the applicability of the rules when operating on their own ter-
ritory. It should be noted, however, that the mention of “under the control of
the adverse party” does not modify the protection granted to private or pub-
lic property located in occupied territory, the destruction of which remains
prohibited by Article 53 gciv [see: Property, Destruction and Appropriation/
Seizure of]. Generally, attacks refer to acts carried out as part of the hostili-
ties between the parties to the conflict and do not cover other uses of force
Attacks against Civilians and Persons Hors de Combat 193
that may be part of law enforcement once a party (either the occupying power
during a situation of occupation or a party to a non-international armed con-
flict) has secured effective control over a part of the territory.
The question of the temporal scope of application was also raised during
the Diplomatic Conference that led to the adoption of the APs. The example
of mines is often cited to emphasize the fact that attacks also cover acts of vio-
lence the effect of which may be delayed in time [see: Landmines]. The plac-
ing of a mine, therefore, constitutes an attack “whenever a person is directly
endangered by a mine laid” [1987 icrc Commentary api, para. 1881].
In the end, the definition of attack is of crucial importance, as it triggers the
application of the rules governing the conduct of hostilities and aiming at pro-
tecting the civilian population from the effects of such hostilities [see: Hostili-
ties, Conduct of]. That being said, the wording used in Articles 48 and 57 api
implies that even in situations that fall below the threshold of attacks, at least
the principles of distinction and precautionary measures should be respected.
These two provisions apply to all military operations.
Anne Quintin – the views expressed are those of the author alone and do not
Bibliography
N. Melzer, Targeting Killings in International Law (2008), pp. 270–271.
Attacks against Civilians and Persons Hors de Combat. Civilians may not be
made the direct object of attack, unless they take direct part in hostilities, and
then only for such time as they do so [see: Civilians; Direct Participation in
Hostilities]. Similar rules protect persons hors de combat [see: Hors de Com-
bat] and non-combatant members of armed forces [see: Medical Personnel;
Religious Personnel]. These rules of ihl are further enforced by international
criminal law. Violations thus attract not only the international responsibility
of States but also, potentially, individual criminal responsibility [see: State
Responsibility; Individual Criminal Responsibility].
Although its antecedents can be traced back at least to the Hague Regu-
lations, the modern legal framework which forbids making civilians the di-
rect object of attack emanates primarily from the 1977 APs. Article 51 api not
only proscribes making civilians and the civilian population the direct object
of attack in an international armed conflict, but also attacks whose primary
purpose is to spread terror among the civilian population, indiscriminate
attacks, and disproportionate attacks [see: Terrorism (ihl); Indiscriminate
194 Attacks against Civilians and Persons Hors de Combat
Attacks; Proportionality]. Article 41 api stipulates that “[a] person who is

recognized or who, in the circumstances, should be recognized to be hors de
combat shall not be made the object of attack”. Violations of Articles 41 and
51 api may be grave breaches under Article 85 api, which States parties are
obliged to punish as war crimes [see: Grave Breaches]. Applying to non-in-
ternational armed conflicts, apii grants similar protections to civilians [art. 13
apii]. Although the APs are still in some respects controversial, and have not
received universal ratification, no State consistently objects to these particular
provisions, which are now recognised as customary international law [rule 1
icrc Customary ihl Study]. This broad principle of civilian protection has
also found general confirmation and endorsement by bodies such as the unsc
[e.g. unsc Resolutions 1265 (1999), 1296 (2000), and 1314 (2000)] and the unga
[e.g. unga Resolutions 2444 (1968) and 2675 (1970)].
The practice of the ad hoc tribunals, especially the icty, has further clari-
fied the basis upon which attacks upon civilians constitute war crimes under
customary international law, at least as it existed in the 1990s. Consistent with
api and apii, the icty has stressed that “the principle of protection of civil-
ians” is “a principle of customary international law applicable to all armed
conflicts” [Judgment, Galić, icty, Trial Chamber (2003), para. 19; Judgment,
Kupreškić, icty, Trial Chamber, para. 521], and that “attacks upon civilians”
are always punishable [Judgment, Galić, icty, Appeals Chamber (2006), para.
120]. Nonetheless, to date, there have been no customary law prosecutions for
unlawful attacks on civilians in non-international armed conflicts. The scsl
has come closest by prosecuting unlawful attacks on peacekeepers in non-in-
ternational armed conflicts [Judgment, Sesay, scsl, Trial Chamber, para. 218],
an offence which is related to attacks upon civilians because it requires proof
that the peacekeeper was entitled to the legal protections afforded by ihl to
civilians at the material time [e.g. art. 8(2)(e)(iii) icc Elements of Crimes; see
further: Peacekeeping].
Criminal liability at the icty has consistently been conditioned on proof
that the attack resulted in death or serious injury, based principally upon
this requirement for grave breaches in Article 85 api [e.g. Judgment, Kordić
and Čerkez, icty, Appeals Chamber, paras. 57–67]. However, Chambers
have emphasised that the mere act of launching the attack also remains in-
ternationally wrongful (even if it did not establish criminal responsibility in
the temporal jurisdiction of the icty), regardless of the outcome [e.g. Galić
(2003), paras. 42–43, 53]. In this respect, there may be some basis to believe
that customary law will evolve (or has already evolved). Notably, an scsl Trial
Chamber declined to apply a similar “result” requirement to the customary law
offence of attacking peacekeepers [Sesay, para. 220], even though it considered
Attacks against Civilians and Persons Hors de Combat 195
the offence to be closely related to attacks upon civilians. Similarly, no proof of

death or injury has been required if unlawful attacks are charged as an under-
lying act of the crime against humanity of persecution [Judgment, Gotovina,
icty, Trial Chamber, paras. 1161, 1841].
Attacks against civilians and persons hors de combat must be executed with
knowledge and intent, especially with regard to the civilian status of the vic-
tim. However, given the ihl rule that civilian status must be presumed when
in doubt [art. 50(1) api], it suffices to “show that in the given circumstances
a reasonable person could not have believed that the individual he or she at-
tacked was a combatant” [e.g. Judgment, Karadžić, icty, Trial Chamber, para.
457; Judgment, D. Milošević, icty, Appeals Chamber, para. 60]. This may be
proven inferentially [Judgment, Strugar, icty, Appeals Chamber, para. 271].
Notwithstanding the observation that this is primarily the conduct expected of
a member of the military [Judgment, Blaškić, icty, Appeals Chamber, para. 111;
Kordić and Čerkez, para. 48], in fact it must apply to anyone who assumes the
obligations of ihl by participating in hostilities. It is irrelevant whether the
attack in question was launched offensively or defensively [e.g. Kordić and
Čerkez, para. 47].
Nor is it required that a specific individual is targeted. It is equally an offence
to target the “civilian population as such”, which can “never be used as a target
or as a tactical objective” [Galić (2003), para. 50]. In such instances, it becomes
irrelevant whether particular individuals are participating in hostilities, since
the presence even of some combatants among a predominantly civilian popu-
lation does not suffice to deprive it of its civilian character [art. 50(3) api; see:
Civilian Population]. Apparently indiscriminate or disproportionate attacks
may likewise allow the inference that civilians actually were the direct object
of the attack [D. Milošević, para. 66].
As a matter of treaty law, Article 8 icc Statute likewise grants the icc juris-
diction to punish intentionally directing attacks against the civilian popula-
tion and civilians not taking a direct part in hostilities [art. 8(2)(b)(i), 8(2)(e)
(i) icc Statute]. In at least this respect, Article 8 icc Statute appears to be more
progressive than customary law, imposing no requirement for an unlawful at-
tack to result in death or injury. The actus reus is merely that the perpetrator
“directed” an attack [art. 8(2)(b)(i)-1 icc Elements of Crimes]. As previously
discussed, it is possible that customary law may have evolved to apply a similar
approach.
Finally, and more generally, key challenges remain not only in compre-
hensively and consistently enforcing the prohibition upon making civilians
the direct object of attack (obviously), but also in clarifying the application
of these fundamental principles within the ever changing circumstances of
196 Attacks against Historic Monuments, Works of Art
armed conflict. Thus, it seems likely that such cases will be confronted with
issues including: the scope of persons who may be directly targeted in non-
international armed conflicts; the scope for targeting “dual use” objects (in-
cluding in the context of networked and cyber operations) [see: Military
Objectives], and the increasing use not only of relatively new technologies
[see: Autonomous Weapons], but also older ones, in the form of long range
indirect fires and aerial bombardments [see: Bombardment]. Such issues not
only underline the legal but also the significant practical difficulties of bring-
ing many “conduct of hostilities” crimes to trial – the evidentiary demands of
such cases may be far greater than other types of violation of ihl. Yet, if the
clear intent of States to enforce the cardinal principle of distinction is to be
achieved, these challenges (among others) must, and can, be overcome.
Matthew Cross – the views expressed are those of the author alone and do not
Bibliography
W.H. Boothby, The Law of Targeting (2012), pp. 70–71, 89–91, 141–190, 281–286, 381–391,
440–442, 489–511, 544–548, 555–556, 560–562.
Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(2010), pp. 89–108, 121–152.
P. Ducheine, M.N. Schmitt, F. Osinga (eds.), Targeting: the Challenges of Modern War-
fare (2016), pp. 77–100, 121–146, 177–200.
W.J. Fenrick, ‘The Prosecution of Unlawful Attack Cases before the icty’, 7 yihl
(2004).
H. Olasolo, Unlawful Attacks in Combat Situations: From the icty’s Case Law to the
Rome Statute (2008), pp. 80–88, 103–152.
Attacks against Historic Monuments, Works of Art and Places of Worship.

Historic monuments and buildings dedicated to art or religion (collectively,
“cultural property” or “cultural objects”) are protected under the general ihl
framework that applies to civilian objects [see: Civilian Objects]. In addition,
they benefit from an additional layer of protection, by virtue of their nature
as heritage of humankind or of a particular people – a factor distinguishing
them from ordinary civilian objects. Broadly speaking, cultural objects enjoy
protection from attack, unless they become military objectives [see: Mili-
tary Objectives]. Accordingly, they can only be attacked if they are used for
military purposes, and if the attack would meet the requirements of mili-
tary necessity and proportionality under article 52(2) api [see: Military Ne-
cessity; Proportionality; Attacks]. Attacks are also subject to precautionary
Attacks against Historic Monuments, Works of Art 197
measures by the attacker [see: Precautions, Active]. The icrc has recognized
the belligerents’ obligation to respect cultural property, as detailed above, as a
norm of customary ihl applicable in both international and non-internation-
al armed conflict [rule 38 icrc Customary ihl Study].
The idea that “works of art”, that are not being used for military purposes,
should not be the object of attack is rooted in the first codifications of ihl
dating back to the nineteenth century. It was already included in Article 35
of the 1863 Lieber Code, in Article 17 of the 1874 Brussels Declaration, and in
Article 34 of the 1880 Oxford Manual (also referring to buildings dedicated
to religion). Article 27 of the Hague Regulations of 1899 and 1907 and Article
5 of the 1907 Hague Convention ix oblige belligerents to take the necessary
measures to spare “as far as possible” cultural objects that are not being used
for military purposes. Furthermore, Article 56 of the 1907 Hague Regulations
prohibits in absolute terms the destruction or damage to cultural property
in occupied territory [see: Occupation]. These provisions reflect customary
international law.
The framework for the protection of cultural property during armed conflict
was significantly expanded with the adoption of the 1954 Hague Convention
and its Additional Protocols [see: Hague Convention for the Protection of
Cultural Property (1954) and its Protocols]. The Convention limits the law-
fulness of attacks against cultural property to exceptional situations where
the attacking party can invoke “imperative military necessity” [art. 4(2) 1954
Hague Convention]. However, this formulation proved too vague to constitute
an effective limitation on attacks on cultural property in practice. The adop-
tion of api, which contains a clearer and narrower definition of military objec-
tives, was a turning point. It clarified that cultural property is generally civilian
property, which enjoys immunity from attack. It loses this protection only if
and when it becomes a military objective as per the definition in Article 52(2)
api. Furthermore, Article 53 api and Article 16 apii reaffirm the prohibition
of carrying out “any acts of hostility directed against the historic monuments,
works of art or places of worship which constitute the cultural or spiritual
heritage of peoples”. This prohibition is thus limited to intentionally directing
acts of hostility at the protected objects, but does not encompass collateral
destruction or damage. Nevertheless, the provisions are meant to comple-
ment the obligations set out in Article 27 Hague Regulations and customary
international law. Under the APs, cultural property is only protected if it is of
relevance to humankind; if not, it still benefits from the protection of the 1954
Hague Convention or, failing that, from the general protection afforded to civil-
ian objects. Of note, the APs also refer to spiritual heritage, which is missing in
the 1954 Hague Convention.
198 Attacks against Historic Monuments, Works of Art
The 1999 Additional Protocol to the 1954 Hague Convention strengthens the
protection enjoyed by cultural property in a number of respects, notably by
imposing more stringent requirements for making it the object of attacks. Spe-
cifically, the Protocol provides that cultural property can only be attacked if it
has become a military objective and there is no feasible alternative available
to obtain a similar military advantage. This clarifies the notion of “imperative
military necessity” in Article 4 of the 1954 Convention. The Protocol further
details the precautionary and other measures that the attacking party must
take before carrying out an attack. Amongst these, the attacker has the bur-
den to verify that the objects attacked are not of a cultural nature [arts. 6–7
1999 Additional Protocol to the 1954 Hague Convention]. Even more stringent
requirements apply for attacks on property under enhanced protection, un-
less “requirements of immediate self-defence” make it possible to waive those
obligations [art. 13 1999 Additional Protocol to the 1954 Hague Convention].
Carrying out attacks against historic monuments, works of art, and places
of worship is a serious violation of ihl to which individual criminal responsi-
bility attaches, irrespective of the nature of the conflict. For example, the icc
Statute provides that intentionally directing attacks against “buildings dedi-
cated to religion, […] art, [and] historic monuments, […] provided they are
not military objectives” is a war crime in international and non-international
armed conflicts [art. 8(2)(b)(ix), (e)(iv) icc Statute, respectively].
The 1954 Hague Convention already required States parties to impose
criminal or disciplinary sanctions on persons responsible for breaches of the
Convention, but without listing what violations require criminal sanctions.
Article 85(4)(d) api, which provides that directing acts of hostility against
cultural or spiritual heritage constitutes a grave breach of the Protocol, giv-
ing rise to individual criminal responsibility, is thus a step forward [see: Grave
Breaches].
Under the icty Statute, the Tribunal has jurisdiction over the “seizure of,
destruction or wilful damage done to institutions dedicated to religion, char-
ity and education, the arts and sciences, historic monuments and works of art
and science” [art. 3(d) icty Statute]. Importantly, the icty Statute requires
destruction or damage to cultural property for criminal liability to arise [contra:
Judgment, Jokić, icty, Trial Chamber, para. 50]. In contrast, the icc Statute
criminalises the simple launching of attacks, irrespective of whether actual
damage was caused. Building on the icc Statute, Article 15 of the 1999 Ad-
ditional Protocol to the 1954 Hague Convention defines making cultural prop-
erty the object of attack as a serious violation requiring criminal prosecution
if committed intentionally. This recognizes the additional immunity and pro-
tection granted to cultural property under ihl above that generally granted
Attacks against Non-Defended Localities and Demilitarised Zones 199
to civilian objects. The Al Mahdi Trial Chamber confirmed this interpretation

of Article 8 icc Statute and added that the provision makes no distinction as
to whether the attack was carried out in the conduct of hostilities or after the
object had fallen under the control of an armed group [Judgment, Al Mahdi,
icc, Trial Chamber viii, paras. 15–17]. More generally, the prosecution of Al
Mahdi before the icc signals that intentionally launching attacks against cul-
tural property is, of itself, and despite some controversies, an act of sufficient
gravity to warrant the icc’s intervention.
Giulia Pinzauti – the views expressed are those of the author alone and do not
Bibliography
J.-M. Henckaerts, ‘New Rules for the Protection of Cultural Property in Armed Conflict’,
81 irrc (1999).
R. O’Keefe, The Protection of Cultural Property in Armed Conflict (2006), pp. 92–235.
R. Wolfrum, ‘Cultural Property, Protection in Armed Conflict’, in R. Wolfrum (ed.), Max
Planck Encyclopedia of Public International Law (2010).
Attacks against Non-Defended Localities and Demilitarised Zones. Non-

defended localities and demilitarised zones are two types of protected areas
whose objective is to shelter the civilian population from the effects of armed
conflict [see: Specially Protected Zones]. Non-defended localities are inhab-
ited areas that are open for occupation by an adverse party, meaning that the
controlling power will not put up any resistance. The localities are in fact un-
defended, nor used for hostile military activities. Therefore, the opposing party
must not attack them, as there is no military necessity to do so [rule 37 icrc
Customary ihl Study; art. 59(1) api]. In contrast, demilitarised zones must not
be occupied or used for military purposes by any party to the conflict, if they
have so agreed. Directing an attack against a demilitarised zone is thus prohib-
ited [rule 36 icrc Customary ihl Study; art. 60(1) api].
Procedural obligations apply to the establishment of non-defended lo-
calities and demilitarised zones, as set out in Articles 59–60 api. Failure to
meet these procedural requirements leads to loss of protection. However, the
areas in question remain under the protection of the general framework of
ihl. Thus, attacks can only be directed against military objectives, provided
that the necessary precautions to spare the civilian population are taken, and
that the civilian casualties and damage caused by the attack are not exces-
sive in relation to the concrete and direct military advantage anticipated [see:
Military Objectives; Precautions, Active; Proportionality; Attacks].
200 Attacks against Non-Defended Localities and Demilitarised Zones
The notion of non-defended localities is rooted in the traditional concept

of “open towns”, whereby towns that a belligerent unilaterally declared to be
undefended, and thus open for occupation by enemy ground forces, could not
be attacked. The prohibition to attack open towns and undefended places was
first included in Article 15 of the 1874 Brussels Declaration and Article 32(c)
of the 1880 Oxford Manual. Subsequently, it was codified in Article 25 of the
1907 Hague Regulations, which apply to international armed conflicts. Article
59 api substantially borrows the language of Article 25 Hague Regulations
and further specifies the legal regime applicable to non-defended localities.
The shift from “towns” to “localities” in api reflects the consideration that ar-
eas smaller than an entire town may be declared non-defended and thus be
entitled to immunity from attack.
The notion of demilitarised zones in Article 60 api somewhat devel-
ops Article 15 gciv on neutralised zones. Whereas neutralised zones are es-
tablished in areas close to the combat zone to shelter specific categories of
protected persons (wounded and sick, civilians not taking a direct part in
hostilities and who do not perform any work of a military character) [see:
Protected Persons], demilitarised zones need not be situated in combat areas
and are meant to protect the entire population within the agreed zone. They
can also be established in peacetime.
Articles 59–60 api, which codify pre-existing customary international law,
reaffirm the prohibition on making non-defended localities the object of at-
tack and on conducting military operations in areas that have been declared
demilitarised (which covers the prohibition on attacking these zones). api
further sets out the procedural steps for the establishment of non-defended
localities and demilitarised zones. The main difference between the two is that
non-defended localities can be established through a unilateral declaration or
by agreement of the parties to the conflict, whereas demilitarised zones rest on
the agreement of the parties.
Under Article 59(2) api, a party to the conflict may unilaterally declare a
locality situated in the immediate zone of combat and its vicinity as a non-
defended locality, provided that the following four conditions are fulfilled: (a)
all combatants, as well as weapons and military equipment have been evacu-
ated; (b) fixed military installations or establishments are not used for hostile
purposes; (c) the authorities or the population do not commit any acts of hos-
tility; and (d) no activities in support of military operations are undertaken (e.g.
factories situated in the locality should not manufacture weapons or ammuni-
tion, and infrastructure should not be used for the passage of military troops
or equipment). The declaration needs to be addressed to the adverse party to
the conflict and needs to specify the geographical limits of the non-defended
Attacks against Non-Defended Localities and Demilitarised Zones 201
locality. When establishing a non-defended locality by way of agreement, the

parties to the conflict may derogate from the above conditions [art. 59(5) api].
The conditions for establishing a demilitarised zone under Article 60 api
mirror those for unilateral declarations concerning non-defended localities.
There is, however, one important difference, in that demilitarised zones must
be entirely free not only from all military activities, but also from all activities
assisting the war effort. This is broader than what is required for non-defended
localities.
Neither Common Article 3 GCs nor apii contain analogous provisions con-
cerning non-defended localities and demilitarised zones. Under the former,
the parties to a non-international armed conflict can conclude agreements
inspired by the provisions of api. However, it has been pointed out that only
if the rebels hold territorial control can they conclude agreements on the es-
tablishment of non-defended localities and demilitarised zones. Even then, it
seems unlikely that the State party to the conflict would consent to such agree-
ments [N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.),
The 1949 Geneva Conventions: A Commentary (2015), p. 379]. Despite those
limitations in the applicable treaty law, the icrc has concluded that the pro-
hibition of attacking non-defended localities and demilitarised zones, which
originally developed in relation to international armed conflicts, nowadays
applies under customary ihl equally to non-international armed conflicts
[rules 36–37 icrc Customary ihl Study, respectively].
Making non-defended localities and demilitarised zones the object of at-
tack is a serious violation of ihl giving rise to individual criminal liability. api
lists it as a grave breach of the Protocol, if the attack was carried out wilfully
and caused death or serious injury [art. 85(3)(d) api; see: Grave Breaches]. The
icc Statute criminalises “[a]ttacking or bombarding […] towns, villages, dwell-
ings or buildings which are undefended and which are not military objectives”,
when committed in international armed conflict [art. 8(2)(b)(v) icc Statute].
No similar provision exists in relation to non-international armed conflicts or
to attacks against demilitarised zones generally. The icty Statute, however,
grants the Tribunal jurisdiction over attacks committed against non-defended
localities in any armed conflict [art. 3(c) icty Statute].
Overall, the notion of non-defended localities and demilitarised zones
has had limited practical significance in modern armed conflicts. After all,
the civilian population that these zones seek to protect should already enjoy
protection from the effects of hostilities under the general ihl framework.
Within the realm of protected areas, there has been growing practice in recent
years concerning the establishment of safe areas by the unsc, though their
effectiveness deserves further discussion.
202 Attacks against Objects Indispensable to the Survival
Bibliography
J.-M. Henckaerts, ‘Non-Defended Towns’, in R. Wolfrum (ed.), Max Planck Encyclope-
dia of Public International Law (2015).
J.P. Lavoyer, ‘International Humanitarian Law, Protected Zones and the Use of Force’, in
W. Biermann, M. Vadset (eds.), UN Peacekeeping in Trouble: Lessons Learned from
the Former Yugoslavia (1999).
N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949
Geneva Conventions: A Commentary (2015), p. 369.
Attacks against Objects Indispensable to the Survival of the Civilian Popula-

tion. Attacking objects considered indispensable to the survival of the civil-
ian population (indispensable objects), i.e. means of subsistence, is prohibited
in international and in non-international armed conflict meeting the thresh-
old of apii [art. 54 api; art. 14 apii]. The prohibition has crystallized into a
norm of customary law applicable to all armed conflicts [rule 54 icrc Cus-
tomary ihl Study]. However, the act constitutes a war crime only in interna-
tional armed conflict, as a corollary to the prohibition of starvation enshrined
in Article 54(1) api [art. 8(2)(b)(xxv) icc Statute; see: Starvation]. The need
for a regime governing the protection of indispensable objects arises from
scenarios where means of subsistence serve both combatants and civilians,
or where it is impossible to determine whether they serve either category or
both, thus making the assessment as to whether they are military objectives
difficult [A. Cassese, ‘The Geneva Protocols of 1977 on the Humanitarian Law
of Armed Conflict and Customary International Law’, 3(1–2) ucla Pac. Basin
Law J. (1984), p. 91; see: Military Objectives].
The structure of Article 54 api is complex, as it provides for several prohibi-
tions, either absolute or subject to strict exceptions. To the contrary, Article 14
apii contains only a general prohibition to attack indispensable objects, but
omits the relevant exceptions provided for in api. This has led the icrc to
conclude that there is insufficient practice to indicate that the exceptions are
part of customary ihl [J.-M. Henckaerts, L. Doswald-Beck, Customary Interna-
tional Humanitarian Law, Vol. i (2005), pp. 192–193].
Article 54 api, at paragraphs (1) and (4) respectively, provides for non-
derogable prohibitions to starve civilians as a method of warfare and to
commit reprisals against indispensable objects [see: Starvation; Reprisals
against Civilians]. It should be noted here that, for the purpose of ihl, while
Attacks against Objects Indispensable to the Survival 203
particularly cruel or indiscriminate weapons, means and methods of warfare

are outlawed as such, many others, that are legitimate by themselves (such
as the release of natural phenomena), may be equally condemned if used to
harm civilians. The reason for this extended proscription is to be found in the
necessity to forbid practices of total warfare, thereby disallowing parties to a
conflict to use otherwise lawful means and methods in such a manner so as to
harm or endanger civilians [1987 icrc Commentary api, para. 2087]. In this
sense, the prohibition of causing widespread, long-term and severe damage
to the natural environment, thereby prejudicing the health or survival of the
population, could be exemplificative [see: Environment].
Article 54(2) api then stipulates a general proscription to attack indispens-
able objects. With a view to ensuring the widest possible protection, the pro-
vision uses a catch-all formulation and forbids to “attack, destroy, remove or
render useless” indispensable objects, in order to cover all conduct (including
contamination and pollution) that may result in harm to the civilian popula-
tion [1987 icrc Commentary api, para. 2101]. Likewise, Article 54(2) api does
not contain an exhaustive list of indispensable objects, which must be defined
based on the circumstances, so as not to confine its protection to a set of specif-
ic objects. However, the provision expressly mentions foodstuffs, agricultural
areas for the production of foodstuffs, crops, livestock, drinking water installa-
tions and supplies, and irrigation works. Interestingly, Article 54(2) api refers
to civilian population, as opposed to civilians, thereby ensuring that the detri-
mental effects deriving from targeting indispensable objects affect civilians in
the vicinity and not the whole population of a country [1987 icrc Commen-
tary api, para. 2108]. There is not, however, any indication of the geographical
parameter(s) to define the immediate civilian population, which must be argu-
ably identified by establishing a link between the particular indispensable ob-
ject targeted and the number of civilians normally benefitting from that object.
According to Article 54(3) api, the prohibition in the preceding paragraph
does not apply when the objects of the opposing party are used as “sustenance
solely for the members of the armed forces” or “in direct support of military
action”. The first exception covers situations in which the opposing army is us-
ing, for example, a livestock farm or an agricultural area for its sustenance. It
does not apply, however, in case of much larger facilities or installations, which
may not be supporting solely the armed forces. The second exception, instead,
relates to situations where the objects described in Article 54(2) are directly
employed for military purposes (such as concealment in crop fields). In such
circumstances, the objects concerned may become military targets. However,
attacks and acts of destruction against them may be legitimate only as far as
they do not cause serious consequences to supplies for the civilian population,
204 Attacks against Objects Indispensable to the Survival
thereby reducing it to starvation or forcing it to flee the area [see: Deportation

or Transfer of Civilians].
Lastly, paragraph (5) of Article 54 api provides that, in case of imperative
military necessity, a belligerent power may attack and even destroy indispens-
able objects, but only in its own territory. Conversely, it may not carry out such
attacks or acts of destruction in any other part of the territory which is or may
be under enemy control. This part of the provision is a clear reflection of the
reluctance, shown by many States at the Diplomatic Conference of 1974–1977,
to limit their available means of defence against the advance of enemy forces
[1987 icrc Commentary api, para. 2116]. A notorious example of such total
defence tactics dates back to the French invasion of Russia in 1812, when Cos-
sacks were given the order to burn villages, towns and crops, with a view to
preventing or slowing down the advance of the Napoleonic troops [on the Rus-
sian campaign and war tactics, see: D. Lieven, Russia against Napoleon (2011)].
These scorched earth actions compelled the French forces to rely on a supply
system that was incapable of feeding the entire army in the field, thereby sub-
jecting them to extreme conditions and severe famine.
In case of belligerent occupation [see: Occupation], on the other hand, the
provision is more restrictive, as the occupying power withdrawing from the
occupied territory may still carry out those scorched earth strategies, in case
military operations render it absolutely necessary, but may not destroy objects
which are indispensable for the survival of the civilian population [1987 icrc
Commentary api, para. 2121].
As regards non-international armed conflicts, Article 14 apii constitutes
a simplified version of Article 54 api. Its relevant provision is, however, of
utmost importance in these scenarios, as apii does not contain any general
rule concerning protection of civilian objects, unlike api [see: Civilian Ob-
jects]. A question arises here as to whether or not the protection envisaged in
Article 14 apii only applies to those indispensable objects that are located in
the areas controlled by the enemy, or whether it also extends to the objects
situated in those parts of the territory that are still under the State’s authority
[1987 icrc Commentary apii, para. 4808]. The reason for such controversy
is that in international armed conflicts States retain freedom of action in the
territory under their effective control and may thus attack and even destroy
everything on their side [art. 54(5) api]. To the contrary, as situations covered
by apii are normally more precarious, objects in the possession of one party
may rapidly fall in the hands of the other party [1987 icrc Commentary apii,
paras. 4809–4811]. It might therefore be contended that, in non-international
armed conflict, indispensable objects may never become military targets.
Attacks against Works or Installations 205
Federica Pira, Niccolò Pons – the views expressed are those of the authors alone
and do not necessarily reflect the views of the Kosovo Specialist Chambers or any
other institution the authors are affiliated with
Bibliography
A. Cassese, ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict
and Customary International Law’, 3(1–2) ucla Pac. Basin Law J. (1984).
D. Marcus, ‘Famine Crimes in International Law’, 97(2) ajil (2003).
J. Pejić, ‘The Right to Food in Situations of Armed Conflict: The Legal Framework’,
83(843) irrc (2001).
Attacks against Works or Installations Containing Dangerous Forces. Article

56 api provides for a detailed regulation of attacks against works and installa-
tions containing dangerous forces, namely dams, dykes, and nuclear electrical
generating stations. The cornerstone of the provision is the prohibition of such
attacks, “even where these objects are military objectives, if such attack may
cause the release of dangerous forces and consequent severe losses among the
civilian population” [see: Military Objectives]. In a similar vein, it is prohib-
ited to attack other military objectives located at or in the vicinity of these
works or installations, if such an attack has the aforementioned consequences.
It is clear from the wording of the provision that two cumulative conditions
must be fulfilled for the prohibition to apply: not only must such an attack
be capable of causing the release of dangerous forces, but it must also be ca-
pable of causing, as a consequence of the release of such forces, severe losses
among the civilian population. The use of the words “may cause” in the provi-
sion indicate that it is the mere possibility of release and consequent severe
losses among the civilian population that trigger the prohibition. In other
words, it is not required that these consequences are probable, likely, or certain
[M. Boothby, The Law of Targeting (2012), p. 245]. At the same time, the adjec-
tive “severe” indicates that losses among the civilian population must reach
a high level. The prohibition does not extend to damage – whether severe or
not – to civilian objects [see: Civilian Objects].
The aforementioned prohibition is not absolute. Rather, Article 56(2) api
sets forth the conditions under which the protection against attacks shall
cease. The conditions are different, depending on whether the intended object
of attack is a dam or dyke, a nuclear electrical generating station, or another
military objective located at or in the vicinity of such a work or installation.
A dam or a dyke may only be attacked “if it is used for other than its normal
206 Attacks against Works or Installations
function and in regular, significant and direct support of military operations,

and if such attack is the only feasible way to terminate such support” [art. 56(2)
(a) api]. In contrast, the first aforementioned condition for the protection to
cease – namely the use “for other than its normal function” – does not condi-
tion the loss of protection of a nuclear electrical generating station, while the
remaining two conditions of “regular, significant and direct support of mili-
tary operations” and that “the attack is the only feasible way to terminate such
support” apply [art. 56(2)(b) api]. The conditions for the loss of protection of
other military objectives located at or in the vicinity of works or installations
containing dangerous forces mirror those for the loss of protection of nuclear
electrical generating stations.
However, even if the aforementioned conditions for ceasing the protection
are fulfilled, other protective rules continue to apply, including the precaution-
ary obligations incumbent upon parties to an armed conflict. Indeed, Article
56(5) api specifically clarifies that the passive precaution of avoiding locating
military objectives in the vicinity of protected objects also applies in the con-
text of works or installations containing dangerous forces [see: Precautions,
Passive]. The same paragraph also stipulates that “installations erected for the
sole purpose of defending the protected works or installations from attack” are
also protected from direct attack unless they are used in hostilities or equipped
with armament for offensive purposes [art. 56(5) api].
Furthermore, Article 56(4) api extends the prohibition of reprisals to works
or installations containing dangerous forces. Article 56(6) api then urges States
parties to api and parties to the armed conflict to conclude further agreements
to provide additional protection for objects containing dangerous forces. Last-
ly, Article 56(7) api provides for the possibility to mark such protected objects
with a special sign as specified in Article 16 of Annex i to api, while stressing
that “[t]he absence of such marking in no way relieves any Party to the conflict
of its obligations under [Article 56 api]”.
It is also worth mentioning that the grave breaches provision, contained in
Article 85 api, includes the “launching [of] an attack against works or installa-
tions containing dangerous forces in the knowledge that such attack will cause
excessive loss of life, injury to civilians or damage to civilian objects, as defined
in Article 57, paragraph 2(a)(iii)” [art. 85(3)(c) api; see: Grave Breaches].
As regards apii, Article 15 mirrors the first sentence of Article 56(1) api.
Accordingly, several of the aspects regulated in detail for international armed
conflicts to which api applies, such as the conditions for the loss of protection,
residual targeting obligations, the prohibition of reprisals etc., are unaddressed
in the context of non-international armed conflict that fall into the regulatory
ambit of apii.
Autonomous Weapons 207
The provisions in api and apii constituted progressive development at the

time of their adoption. Indeed, the novelty of granting absolute protection to
works and installations containing dangerous forces which are military objec-
tives under the conditions provided for in api led some States parties to enter
reservations, notably France and the United Kingdom [J.-M. Henckaerts, L. Do-
swald-Beck, Customary International Humanitarian Law (2005), Vol. 2, p. 815].
There is insufficient evidence that Article 56 api or Article 15 apii have evolved
into customary law since. Indeed, Rule 42 icrc Customary ihl Study stipu-
lates a less strict obligation of parties to international and non-international
armed conflicts, namely that “[p]articular care must be taken if works and
installations containing dangerous forces […] and other installations located
at or in their vicinity are attacked, in order to avoid the release of dangerous
forces and consequent severe losses among the civilian population” [Henck-
aerts, Doswald-Beck, Vol. 1, p. 139].
Jann K. Kleffner – the views expressed are those of the author alone and do not
Bibliography
(2005), Vol. 1, pp. 139–142; Vol. 2, pp. 814–843.
Attacks not Directed at a Specific Military Objective; see: Indiscriminate

Attacks
Attacks which Employ a Method or Means of Combat the Effects of which

Cannot be Limited; see: Indiscriminate Attacks
Attacks which Employ a Method or Means of Combat which Cannot be

Directed at a Specific Military Objective; see: Indiscriminate Attacks
Aut Dedere Aut Iudicare; see: Grave Breaches
Autonomous Weapons. There is not an internationally agreed definition of

autonomous weapons. This is in large part due to autonomy being a rela-
tive concept, the understanding of which varies across disciplines, including
science, engineering, and philosophy. But it is also because a definition would
almost certainly encompass weapon systems that have been in use for decades,
an inconvenient truth for both proponents of an autonomous weapons ban, as
well as the militaries already employing them. This entry utilizes autonomy to
208 Autonomous Weapons
refer to a machine or system that can either learn or adapt its functioning to
changing circumstances. Applying that understanding, an autonomous weap-
on is one that, once activated, can select and engage targets with lethal force
without further human involvement. It is important to resist the temptation
to conceptualize autonomy as a binary proposition that a weapon is autono-
mous or it is not. This is because of the dynamic nature of functions within a
system, some operating concurrently and others sequentially, and with varied
task allocations to computer or human.
Autonomy is a characteristic of a technology, not an object or discrete com-
ponent. As a result, referring to autonomy in levels both oversimplifies and
misrepresents. Weapon system autonomy is more accurately thought of as
simultaneously involving three different spectrums: (1) the extent by which
humans are involved in the overall operating the system; (2) the sophistication
of the system; and (3) which specific functions or tasks humans are performing
as opposed to those the machine performs. Thus, the general question about
whether a weapon is autonomous needs to be rephrased to ask about certain
functions at certain points in the systems operating cycle and whether they
are performed by man or machine. Only where a weapon system is capable
of performing the critical functions of selecting and engaging targets without
human involvement should it be considered an autonomous weapon.
The contemporary debate on autonomous weapons is grounded in, but
must be distinguished from, drones [see: Drones]. For example, the computers
and electronic control systems within aerial drones perform any number of
functions to maintain flight, speed, altitude, and heading, but a human opera-
tor determines the target to engage and fires or launches the missile. Because
a human selects and engages the targets, contemporary armed drones are not
autonomous weapons.
Yet, autonomous weapons are not speculative, future systems; they have
existed for decades and are used by the militaries of over thirty countries.
Contemporary autonomous weapons are largely defensive and anti-material,
they engage incoming rockets, missiles, aircraft, and vehicles, often as a last
resort. Where autonomous weapons engage a rocket or missile, there is often
minimal risk of humans being injured or killed. But where the weapon system
is engaging a manned aircraft, vehicle, or boat, even defensive, anti-material,
autonomous weapons can kill humans. For example, in separate incidents
during the 2003 American invasion of Iraq, a U.S. Army Patriot ground to air
missile system, operating in an autonomous mode, misidentified friendly mili-
tary aircraft as enemy, leading to the downing of a U.S. F-18 and a British Tor-
nado, killing the crews of both.
Autonomous Weapons 209
The wide range of autonomous weapons renders categorical assessments

of ihl compliance impossible. Some current systems may be permissibly em-
ployed despite little ability to distinguish between lawful and unlawful targets
[see: Distinction]. The lawfulness of such systems depends on their being used
in remote areas devoid of civilian personnel and objects. This is why current
autonomous weapons are used in the middle of the ocean and at high altitude.
And the environment in which the greatest development of autonomous
weapons is occurring is underwater, where there is a similar lack of civilians.
But it is important to recognize that IHL imposes obligations on people, not on
inanimate objects like a weapons system.
Technological advances and militaries increasing reliance on delegating
more tasks to machines and computers raise the very real possibility, if not
likelihood, that autonomous weapons will be deployed in operating environ-
ments containing civilians, notably on land and in urban areas. The humans
employing land based anti-personnel autonomous weapons would have to
make the legal determination that their use complies with the principle of dis-
tinction and is not expected to result in incidental harm that is excessive to
the concrete and direct military advantage expected to be gained [see: Propor-
tionality]. Moreover, as weapon systems become increasingly autonomous,
would that alter the application of traditional accountability norms?
Such systems do not exist, and may never. However, technology is progressing
at a faster pace than both law and ethics, leading some to suggest a moratorium
on autonomous weapon development. Indeed, current social science research
indicates that humans are increasingly uncomfortable with machines conduct-
ing moral decision-making through algorithmic cost benefit analysis.
Currently, machines are vastly superior to humans in quantitative analy-
sis, repetitive actions, and sorting at least some forms of data, while humans
remain better at qualitative judgment and reasoning. This suggests that
while there are circumstances in which lethal targeting is better left to hu-
mans, there may be other instances whereby the use of autonomous weap-
ons might lead to fewer civilian casualties. It is possible that some future au-
tonomous weapons may be unable to comply with ihl, which is why some
groups are seeking regulation. But it is also possible that future autono-
mous weapons may be able to not only comply with ihl, but to do so to a
greater degree than humans. If that is the case, not only would ihl per-
mit such weapons, the law would require that militaries consider their
employment.
Chris Jenks – the views expressed are those of the author alone and do not nec-
210 Belligerency
Bibliography
N. Bhuta, S. Beck, R. Geiss, H.-Y. Liu, C. Kress (eds.), Autonomous Weapons Systems:
Law, Ethics, Policy (2016).
R. Crotof, ‘The Killer Robots Are Here: Legal and Policy Implication’, 36(5) Cardozo L.
Rev. (2015).
M.N. Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law:
A Reply to the Critics’, Harvard National Security Journal (2013).
P. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century
(2009).
M. Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethi-
cal, and Political Implications of Autonomous Weapon Systems’, 47(5) Vand.
J. Transnat’l L. (2014).
Bacteriological Weapons; see: Biological Weapons Convention (1972); Geneva

Gas Protocol (1925)
Belligerency. In a general sense, belligerency refers to a state of war between

two or more States.
Historically, a State of Belligerency referred to a situation in a civil war,
whereby the laws of war are applied by the contending parties, and where the
insurgency has acquired the attributes of an inter-State war and has been rec-
ognized de jure or de facto by either the established government, or by third par-
ties, or by both. In order to qualify as a State of Belligerency, an insurrection had
to have reached a stage whereby it had a functioning government, had raised
armed forces under responsible command which (by and large) respected and
applied the laws of war, and which controlled a significant portion of territory.
Recognition of belligerency by the established government could either be
through an official act or result from de facto application of the laws of war, for
example, through the imposition of a naval blockade before the coast of the re-
bellious party, as was the case in the American Civil War. In such situations, the
exercise of belligerent rights led to a situation whereby the laws of war were
applied without recognizing the rebellious party as a sovereign State [K. Hall,
The Oxford Guide to United States Supreme Court Decisions (2001), p. 246]. In
situations where a third State’s interests were affected by a civil war, it could
recognize the exercise of belligerent rights in order to safeguard those interests
by, for example, claiming the rights of neutrality.
However, this definition is now primarily of historical significance. The prac-
tice of recognizing belligerency in civil wars fell into disuse in the course of the
twentieth century due to a number of factors. One of these was the reluctance
Belligerents 211
on the part of parent States to confer any degree of legitimacy upon a rebel-
lious entity. The second reason is the influence of political considerations re-
lating to the expression of approval or disapproval of a rebel movement by
third States. The latter stood in the way of open recognition of belligerency in
the Spanish Civil War by States which opposed the political alignment of Gen-
eral Franco, while the States which supported his rebellion (Nazi Germany and
Italy), instead of recognizing belligerency, which would have required neutral-
ity on their part, recognized General Franco’s Nationalist regime as the govern-
ment of Spain and openly intervened militarily on his behalf [L. Moir, The Law
of Internal Armed Conflict (2004), pp. 20–21].
Since the end of World War ii, the practice of recognizing belligerency has
been replaced by developing the regime of ihl that applies in non-interna-
tional armed conflicts [see: Non-International Armed Conflict].
Terry Gill – the views expressed are those of the author alone and do not neces-
sarily reflect the views of any institution the author is affiliated with
Bibliography
K. Hall, The Oxford Guide to United States Supreme Court Decisions (2001), p. 246.
L. Moir, The Law of Internal Armed Conflict (2004), pp. 20–21.
Belligerents. The word used as a noun refers to a party to an armed conflict.

Historically, this only applied to States and to insurrectional movements,
which had been recognized as parties to an armed conflict, to which the laws
of war applied [see: Belligerency]. Under contemporary ihl, a belligerent
can refer to either a State or any other entity which participates in an armed
conflict by engaging in hostilities with one or more opposing parties. Other
entities capable of possessing belligerent status under contemporary ihl in-
clude national liberation movements (in international armed conflicts) and
armed groups possessing a minimum degree of organization, which take
part in hostilities of a reasonably intensive and protracted nature (in non-
international armed conflicts) [see: Non-International Armed Conflict;
Armed Groups].
The applicability of ihl, and consequently the possession of belligerent
status, is governed by the threshold criteria for the existence of either an inter-
national or non-international armed conflict [see: International Armed Con-
flict; Non-International Armed Conflict]. The possession of belligerent status
applies equally to all parties to an armed conflict [see: Belligerents, Equality
of]. However, this is without prejudice to the applicability of national law to
the acts of insurrectional movements in non-international armed conflicts
212 Belligerents, Equality of
in the absence of a recognition of belligerency. International organizations

possessing a sufficient degree of international legal personality can also, in
principle, qualify as belligerents, although in general such organizations have
been reluctant to claim such status for political reasons and exercise belliger-
ent rights as an organization [see: International Organizations].
The primary consequence of possessing belligerent status is that the rel-
evant regime of ihl (international or non-international armed conflict) will
apply as a matter of treaty or customary law to all actions, undertaken in the
context of the armed conflict, which are directed against the opposing party
or parties. The applicability of ihl to such acts includes the right to engage in
hostilities against the opposing party or parties and the duty to respect all ap-
plicable rules in the conduct of hostilities and in the treatment of persons and
objects that enjoy protection under ihl. It also includes the duty to enforce
compliance with applicable ihl by persons acting on behalf of the belligerent
party and in territory under its control. This implies that a belligerent party, or
an individual acting on behalf of a belligerent, can be held to account for fail-
ure to respect and uphold ihl [see: State Responsibility; Individual Criminal
Responsibility].
Bibliography
J.K. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck
(ed.), The Handbook of International Humanitarian Law (2013).
D. Kritsiotis, ‘War and Armed Conflict: the Parameters of Enquiry’, in R. Liivoja, T.
McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (2016).
Belligerents, Equality of. The notion of equality of belligerents denotes the fact
that ihl applies fully and equally to all parties to an armed conflict. This equal-
ity is directly linked to one of the cardinal principles of ihl as set out in, inter
alia, the Preamble to api, which reaffirms the equal application of ihl to all
parties, irrespective of the causes of the conflict or the motives of the parties
[see: Ius Ad Bellum].
It can hardly be too strongly emphasized how important and fundamental
this principle is. The whole purpose of ihl is to regulate and mitigate as far as
possible the conduct of hostilities and to provide protection to all persons who
are protected from attack, to combatants rendered hors de combat as a conse-
quence of wounds, sickness, shipwreck, distress evacuation of an aircraft or
Belligerents, Equality of 213
surrender, or to any who find themselves in the power of the adversary through
detention or occupation. If the principle of equal application and the concom-
itant notion of equality of belligerents is not observed, it severely undermines
the whole basic purpose of ihl. It is a principle of long standing and, despite
the fact that attitudes about the justifiability of engaging in war have changed
radically since its emergence in the eighteenth century as a rule of customary
law, it remains a cornerstone of contemporary ihl.
Nevertheless, it is probably true that the principle fits less comfortably in re-
lation to non-international armed conflicts, than it does at the inter-State level
[see: Non-International Armed Conflict]. States are sovereign and equal enti-
ties and there has long been no doubt that international law applies equally to
them. In contrast, international law did not apply to non-State entities until
quite recently. Nor were internal conflicts subject to the law of war except in
cases of recognition of belligerency until after World War ii [see: Belligerency].
In recent years, the development of ihl has brought the two regimes of armed
conflict much closer in terms of substantive coverage and protection. However,
it cannot be ignored that alongside ihl, non-international armed conflicts are
also subject to domestic law, and the acts of insurrectional or rebel movements
are generally criminalized under that law, which is difficult to reconcile with
the notion of equality of belligerents from a more practical perspective.
Moreover, some experts have pointed out the gap between what can be ex-
pected from a State, in terms of respecting and upholding ihl, and what can
be realistically expected from many, if not all, armed groups [see e.g. M. Sassò-
li, ‘Critically Examining Equality of Belligerents in Non-International Armed
Conflicts’, hpcr Blog, 22 March 2012].
While both these factors cannot be ignored, it is nevertheless generally con-
sidered that they should not be seen as rendering the principle nugatory or
impossible to apply in non-international armed conflicts. The arguments for
its application in terms of promoting and enhancing the protection offered by
ihl are as cogent in non-international armed conflicts as in traditional inter-
State wars. Moreover, if ihl is (reasonably) observed by all parties, this can
go a long way toward making a peace settlement between parties to a non-
international conflict more likely and more durable if such an agreement is
reached. If so, a government can determine to grant amnesty or refrain from
prosecution for violations of national law, but there are significant obstacles of
both a legal and non-legal nature to granting blanket amnesty for serious viola-
tions of international law [see: Amnesty].
214 Biological Weapons Convention (1972)
Bibliography
M. Sassòli, ‘Critically Examining Equality of Belligerents in Non-International Armed
Conflicts’, hpcr Blog, 22 March 2012.
Biological Weapons Convention (1972). The 1972 Convention on the Prohi-

bition of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction (Biological Weap-
ons Convention or bwc) is a disarmament treaty that prohibits States parties
from developing, producing, stockpiling, or otherwise acquiring or retaining
biological weapons [art. i bwc]. The Convention was opened for signature at
London, Moscow, and Washington DC on 10 April 1972 and entered into force
on 26 March 1975. As at 1 June 2018, 180 States were party to the Convention and
a further six were signatories (Central African Republic, Egypt, Haiti, Somalia,
Syria, and Tanzania). Eleven States were not party to the bwc as of writing:
Chad, Comoros, Djibouti, Eritrea, Israel, Kiribati, Micronesia, Namibia, Niue,
South Sudan, and Tuvalu.
States parties undertake never in any circumstances to develop, produce,
stockpile, or otherwise acquire or retain any microbial or other biological
agents or toxins “of types and in quantities that have no justification for pro-
phylactic, protective or other peaceful purposes”, or weapons, equipment, or
means of delivery “designed to use such agents or toxins for hostile purposes or
in armed conflict” [art. i bwc]. Biological weapons include micro-organisms
such as bacteria, viruses, or fungi and toxins found in nature (poisonous com-
pounds produced by micro-organisms) that can be used to kill or otherwise
harm people. Examples of prohibited toxins are anthrax and smallpox. During
World War ii, Japan operated a biological warfare research facility in Manchu-
ria, which exposed more than 3,000 victims to plague, anthrax, syphilis, and
other biological agents.
The Convention does not explicitly prohibit use of biological weapons,
although such use is decried in its Preamble, and States parties have included,
in the declarations issued at review conferences, the statement that a prohi-
bition on use is inherent in the other prohibitions set out in Article i bwc.
For instance, in the final declaration of the sixth review conference, States
parties reaffirmed that “under any circumstances the use […] of bacteriologi-
cal (biological) and toxin weapons is effectively prohibited under Article i of
the Convention” [Sixth Review Conference, Final Document (2006), p. 8]. The
Preamble also refers to the 1925 Geneva Gas Protocol [see: Geneva Gas Pro-
tocol (1925)], which first prohibited use of biological (bacteriological) weap-
ons. But this ihl treaty was subject to reservations by more than 20 States that
Biological Weapons Convention (1972) 215
effectively restricted the prohibition to one of no first use. Today, however, it

is uncontested that the use of biological weapons is prohibited in all armed
conflicts under customary ihl, and that their intentional use amounts to
a war crime [rules 73 and 156 icrc Customary ihl Study]. The icc Statute
was amended to include these war crimes in the context of international and
non-international armed conflict in 2017 [art. 8(2)(b)(xxvii), 8(2)(e)(xvi) icc
Statute].
States are required to “destroy or divert to peaceful purposes” all biological
weapons prior to becoming party to the Convention [art. ii bwc]. States adher-
ing to the Convention shall not either transfer or in any way assist, encourage,
or induce anyone else to acquire or retain biological weapons [art. iii bwc].
States parties are required to take all necessary national measures to imple-
ment the Convention domestically [art. iv bwc].
It is claimed that, despite adhering to the Convention, the Soviet Union
established a biological warfare project that, at its height, employed more
than 50,000 people in various research and production centres. These centres
produced tons of anthrax bacilli and smallpox virus, some for use in intercon-
tinental ballistic missiles, and engineered multidrug-resistant bacteria, includ-
ing plague. In 1979, an accidental release of anthrax from a weapons facility in
Sverdlovsk killed at least 66 people. In 1992, Russian President Boris Yeltsin ad-
mitted to the accident. In addition to earlier use by States, non-State actors have
disseminated toxins. In 1995, members of the Aum Shinrikyo cult released an-
thrax in the Tokyo subway killing 13 and injuring thousands. In 2001, anthrax was
sent by mail to US media and government offices: five people died as a result.
A first review conference of the Convention was held in Geneva in March
1980, in accordance with Article xii of the Convention. The second review con-
ference in 1986 agreed on a set of confidence-building measures. These were
expanded by the third review conference in 1991. These measures included
an undertaking to submit annual reports on national biological defence re-
search and development programmes and on past involvement in offensive or
defensive biological research and development. The fifth review conference
in 2002 decided that meetings of States parties should be organised annually,
a practice that has continued ever since [Fifth Review Conference, Final Docu-
ment (2002), para. 18a]. The sixth review conference decided to establish an
Implementation Support Unit for the Convention within the Geneva branch
of the UN Office for Disarmament Affairs. The eighth review conference, held
in Geneva in November 2016, affirmed “the determination of States Parties to
condemn any use of biological agents or toxins other than for peaceful pur-
poses by anyone at any time” [Eighth Review Conference, Final Declaration
(2016), sub-para. v].
216 Blockade
The biggest challenge facing the bwc is the lack of a meaningful oversight
mechanism akin to the Organisation for the Prohibition of Chemical Weapons.
Following the failure to agree on a verification protocol in 2001, States parties
decided to hold annual meetings of experts to discuss the way forward. But
these are unlikely to lead to agreement any time soon given the need for con-
sensus among the States parties and in the face of US opposition to verifica-
tion, largely on the basis of the dual-use nature of the biosciences.
with
Bibliography
F. Frischknecht, ‘The History of Biological Warfare’, 4(1) embo Reports (2003).
E. Hooker, ‘Biological Warfare’, Emedicine Health.
O. Meier, ‘Don’t Neglect the Biological Weapons Convention’, The Blog of the Arms
Control Association.
G. Pearson, ‘Time for Structural Changes to Make the Biological and Toxin Weap-
ons Convention more Effective’, 1(1) Global Security: Health, Science and Policy
(2016).
Blockade. The practice of blockade refers to belligerent measures taken by one

side of an armed conflict to prevent vessels or aircraft from entering the ports
of the other party to the armed conflict, in order to prevent it receiving arma-
ments or material assistance from abroad. The imposition of a blockade allows
parties to an armed conflict to intercept and search vessels travelling towards a
blockaded port. Any vessels attempting to breach a legitimate blockade can be
captured or even attacked, after due warning.
Traditionally, the right of a party to an armed conflict to establish a blockade
was reserved to parties to an international armed conflict. However, the law on
belligerency recognises that a blockade can also be legitimately asserted by a
non-State actor, if it has been recognised as a belligerent [see: Belligerents].
The imposition of a blockade is a method of warfare to which the principles
and rules of international law apply. The earliest codification of the law on
blockade was the Declaration concerning the Laws of Naval Warfare of 26 Feb-
ruary 1909 (London Declaration).
Today, the San Remo Manual sets out the key requirements for parties estab-
lishing a naval blockade. It clarifies that blockades must inter alia be declared
and notified to all belligerent parties and neutral States [art. 93 San Remo
Blockade 217
Manual]. Any such declaration must specify its commencement, duration,

geographical reach and extent [art. 94 San Remo Manual]. In addition, a dec-
laration that ports are closed is not sufficient to constitute a blockade, unless
it is accompanied by an effective blockade [art. 95 San Remo Manual]. It must
also apply impartially to vessels of all States and not bar access to the ports of
neutral States [arts. 99–100 San Remo Manual].
There are several humanitarian restrictions to the circumstances in which
blockades can be imposed. For example, no blockade can be imposed if it has
the sole purpose of starving the civilian population or if the damage to the ci-
vilian population caused by the blockade will be greater than the concrete and
direct military advantage gained by its imposition [art. 102 San Remo Manual;
see: Starvation]. Likewise, a blockade can only be maintained by a party to an
armed conflict via legitimate methods and means of warfare [art. 97 San Remo
Manual]. Furthermore, the blockading party must provide free passage of es-
sential supplies and foodstuffs where the civilian population is inadequately
provided with food or other objects essential to its survival and must allow
the passage of medical supplies for the civilian population or injured mem-
bers of the armed forces, although it retains the right to set down technical
requirements for such passages, including search [arts. 103–104 San Remo
Manual].
Article 42 of the UN Charter lists blockade as one of the actions that the
unsc can take in order to maintain or restore international peace and security.
Blockades which are imposed without the unsc’s authorisation or outside the
framework of an armed conflict are viewed as a violation of the prohibition on
the use of force [art. 3(c) unga Resolution 3314 (xxix) (1974)].
Israel’s imposition of an air, land, and sea blockade on the Gaza Strip is
a controversial use of the practice of blockade and its legality is contested.
While Israel defends its blockade on the basis that it is intended to prevent
weapons being smuggled into Palestinian territory, it has been criticised
by other UN bodies and special rapporteurs as amounting to the imposi-
tion of collective punishment on the people within Gaza and a violation
of ihrl [see e.g. UN Human Rights Council, Report of the United Nations
Fact-Finding Mission on the Gaza Conflict (2009), para. 1331; see: Collective
Punishment].
Katharine Fortin – the views expressed are those of the author alone and do
not necessarily reflect the views of any institution the author is affiliated with
Bibliography
N. Klein, Maritime Security and the Law of the Sea (2013).
218 Bombardment
Bombardment. Bombardment is traditionally understood as a method of

warfare that targets an adversary’s land, sea, or air bases indiscriminately and
with heavy weaponry. Not until the nineteenth century did States attempt to
regulate bombardment, notably with the Declaration of Brussels of 1874 and
then in the Hague Convention ix of 1907. The terminology of bombardment
has now been integrated into the concept of “attack” in contemporary legal in-
struments, particularly Article 49(1) api, which embraces all “acts of violence
against the adversary” [see: Attacks].
Of particular relevance, Article 51(5)(a) api notes that an indiscriminate at-
tack includes “an attack by bombardment by any methods or means, which
treats as a single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area, containing a
similar concentration of civilians or civilian objects (emphasis added)” [see:
Indiscriminate Attacks]. What is noteworthy about this provision is that it
creates a presumption that attacks via bombardment are indiscriminate and,
thus, prohibited, as a matter of international law. Conversely, it is conceivable
that targeting an area by bombardment is lawful, provided that the whole area
contains a number of military objectives that can only feasibly be attacked to-
gether. In the final analysis, though, the legality of a bombardment will turn on
an assessment of the usual considerations in api pertaining to the protection
of civilian populations and objects, including the principles of distinction, pre-
cautions, proportionality, and the imperative to strictly limit attacks to military
objectives [see: Distinction; Precautions, Active; Proportionality; Military
Objectives].
Although api applies during international armed conflicts, the principles
regulating bombardment may also be distilled from Article 13 apii pertaining
to non-international armed conflicts, which provides for the general protec-
tion of civilians from being made the object of attack. Furthermore, Article
13(2) apii repeats verbatim the text of Article 51(2) api, including the phrase
that “[a]cts or threats of violence, the primary purpose of which is to spread
terror among the civilian population, are prohibited” [see: Terrorism (ihl)]. It
can, therefore, be said that bombardment with the primary purpose of spread-
ing terror is prohibited in both international and non-international armed
conflicts.
Warfare by means of bombardment is also necessarily limited by conven-
tions that restrict the use of certain weapons where an indiscriminate attack
will necessarily arise.
Michael Ramsden – the views expressed are those of the author alone and do
Booby-Traps 219
Bibliography
F. Kalshoven, ‘Bombardment: From “Brussels 1874” to “Sarajevo 2003”’, in J. Doria (ed.),
The Legal Regime of the International Criminal Court: Essays in Honour of Profes-
sor Igor Blishchenko (2009).
M. Roscini, ‘Targeting and Contemporary Aerial Bombardment’, 54 International and
Comparative Law Quarterly (2005), p. 411.
Booby-Traps. Under Article 2(4) Protocol ii ccw, a booby-trap is defined

as “any device or material which is designed, constructed or adapted to kill
or injure, and which functions unexpectedly when a person disturbs or ap-
proaches an apparently harmless object, or performs an apparently safe act”
[see: Convention on Certain Conventional Weapons (1980)]. Rules govern-
ing or restricting the use of booby-traps stem from the general purpose of the
ccw, which is to restrict the use of specific types of weapons which are con-
sidered to cause unnecessary or unjustifiable suffering to combatants or affect
civilians indiscriminately. More specifically, the main concern with the use of
booby-traps is that they may be inadvertently activated by and cause injury or
death to innocent civilians.
Protocol ii ccw is also known as the Protocol on Prohibitions or Restric-
tions on the Use of Mines, Booby-Traps and Other Devices. The amended
version of Protocol ii ccw was adopted on 3 May 1996, following the First
Review Conference on the ccw. This amended version sought to strengthen
the original Protocol ii ccw as regards the scope of its application and sub-
stantive prohibitions. With respect to booby-traps, the amended Protocol
ii ccw contained more specific provisions restricting the use of such weapons
in areas with a high concentration of civilians [art. 7(2), 7(3) Protocol ii ccw;
see also: rule 80 icrc Customary ihl Study].
Article 7(1) Protocol ii ccw prohibits the use of booby-traps which are “at-
tached to or associated with” objects which have a special protection under
ihl. More specifically, the booby-traps cannot be “attached to or associated
with: (a) internationally recognised protective emblems, signs or signals; (b)
sick, wounded or dead persons; (c) burial or cremation sites or graves; (d) med-
ical facilities, medical equipment, medical supplies or medical transports; (e)
children’s toys or other portable objects or products specially designed for the
feeding, health, hygiene, clothing or education of children; (f) food or drink; (g)
kitchen utensils or appliances (with an exception for military establishments,
locations or supply depots); (h) objects clearly of a religious nature; (i) his-
toric monuments, works of art or places of worship; and (j) animals or their
220 Booby-Traps
carcasses”. An example of what may amount to a lawful booby-trap would be

a device which is designed to explode when a combatant turns on the ignition
of a military vehicle or opens the door to a military supply depot.
Article 7(2) Protocol ii ccw further prohibits the use of booby-traps in the
form of apparently harmless portable objects which are specifically designed
and constructed to contain explosive material.
There is also a general prohibition against the use of booby-traps in a city,
town or village, or other area with a similar concentration of civilians, in which
combat between ground forces is not taking place or does not appear to be im-
minent. However, booby-traps can be used in such areas where they are placed
on or in the close vicinity of a military objective, or when measures are taken to
protect civilians from the effects of the weapon. Precautions that can be taken
to protect civilians from the effects of booby-traps include fencing, signs, warn-
ing, and monitoring [arts. 4(10)(b), 4(11), 7(3) Protocol ii ccw].
The indiscriminate use of booby-traps is also prohibited. The placement of
booby-traps would be indiscriminate where it is “expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a combina-
tion thereof” which would be excessive in relation to the anticipated military
advantage [art. 3(8) Protocol ii ccw].
There is an obligation to record and retain all information concerning
booby-traps and, without delay after the cessation of active hostilities, to take
“all necessary and appropriate measures” to protect civilians from the effects
of booby-traps. The information to be recorded includes the precise location
of, the type, number, and method of placement of the booby-traps. In addition,
this information is to be made available to the unsg and to the other parties
to the conflict in areas no longer under their control. The obligation to release
this information at the earliest possible time is subject to the “security inter-
ests” of each party, which allows this information to be withheld until neither
party to the conflict is in the territory of the other [art. 9 Protocol II CCW; Tech-
nical Annex Protocol II CCW].
Parties to a conflict bear the responsibility, without delay after the cessa-
tion of active hostilities, to clear, remove, or destroy booby-traps in areas under
their control [art. 10 Protocol ii ccw].
Following the Second Review Conference in 2001, Article 1 ccw was amend-
ed to clarify that the convention and its annexed protocols also extend to non-
international armed conflicts [arts. 1(2), (3) ccw]. Even when booby-traps are
employed in a lawful manner in accordance with the provisions of Protocol
ii ccw, their use is subject to the rules on proportionality and the principle
of distinction [see: Proportionality; Distinction]. In addition, booby-traps
cannot be used to cause “superfluous injury or unnecessary suffering” [art. 3(3)
Protocol ii ccw].
Camouflage 221
UN forces are absolutely prohibited from the use of booby-traps [unsg,

Bulletin: Observance by United Nation Forces of International Humanitarian
Law (1999), Section 6.2]. While the focus of international debate and attention
has often been on the use and control of landmines, there have been examples
where there has been discussion of booby-traps. For example, a Special Rap-
porteur for the UN Commission of Human Rights, in a report on human rights
in Afghanistan, described the use of booby-traps disguised as toys, pens, cakes,
and soap which caused serious injuries to children [UN Commission on Hu-
man Rights, Report on the Situation of Humans Rights in Afghanistan (1986),
paras. 88–91]. In 1996, the unsc called on the military authorities on both sides
of the armed conflict in Cyprus to clear all booby-trapped areas inside the buf-
fer zone without further delay as requested by the UN Peacekeeping Force in
Cyprus [unsc Resolution 1062 (1996)].
Despite the legal restrictions on the use of booby-traps, they continue to
be employed in the context of armed conflicts, including in Syria, where there
have been reports that Islamic State’s forces widely planted booby-traps before
withdrawing from built-up urban areas which continue to pose a threat to ci-
vilians and combatants alike.
Harshan Athureliya – the views expressed are those of the author alone and
do not necessarily reflect the views of the Extraordinary Chambers in the Courts
of Cambodia
Bibliography
W. Boothby, Weapons and the Law of Armed Conflict (2016), Chapter 13.
Review Conference of the States parties to the ccw, Final Report (1996).
Brussels Declaration (1874); see: Hague Convention (iv) Concerning the Laws
and Customs of War on Land (1907)
Camouflage. Colloquially, camouflage is the disguising of military person-

nel, equipment and installations, by painting or covering them to make them
blend in with their surroundings [Oxford Dictionary].
As part of ruses of war permitted by international law [see: Ruses of War],
camouflage is an act intended to confuse or mislead the enemy [art. 37 api].
The icrc states in this regard that “[a] combatant who takes part in an attack,
or in a military operation preparatory to an attack, can use camouflage and
make himself virtually invisible against a natural or man-made background,
but he may not feign a civilian status and hide amongst a crowd” [1987 icrc
Commentary api, p. 438; see: Perfidy]. Although it was not included in the
final text of apii, its draft Article 21(2) affirmed that camouflage was within
222 Capture Card
those acts intended to mislead the adversary, or to induce him or her to act
recklessly [J.-M. Henckaerts, L. Doswald-Beck, Customary International Hu-
manitarian Law – Vol. ii (2005), p. 1245]. States have continuously affirmed the
legality of camouflaging as a permitted ruse of war, which has been reflected in
several State military manuals, such as those of Argentina, Australia, Canada,
Croatia, France, Israel, the United Kingdom, and the United States.
Generally, the aim of camouflage is to make a combatant or military objects,
such as tanks or artillery pieces, appear to be a civilian object, such as foliage
or as a building. It has been claimed that an effective camouflage “lulls en-
emy soldiers into a false sense of security from attack, because it makes them
believe – wrongly – that they are surrounded solely by civilian objects even
when they are within the military object’s field of fire” [K. Heller, ‘Disguising
a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse
of War?’ 91 International Law Studies (2015), p. 520]. The icrc Customary ihl
Study affirmed the customary character of ruses of war in both international
and non-international armed conflicts [rule 57 icrc Customary ihl Study].
There has been some interesting analysis on the differences between the
use of camouflage by soldiers (to appear to be a civilian) and objects (such as a
tank appearing to be a civilian building). As observed by a commentator “only
the former invites the adversary to believe that ‘he is entitled to, or is obliged to
accord, protection’ under ihl” [Heller, p. 523].
Ezequiel Heffes – the views expressed are those of the author alone and do not
necessarily reflect the views of Geneva Call
Bibliography
J. K. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Per-
missible Ruse of War?’ 91 International Law Studies 517 (2015).
Capture Card. The capture card is a manifestation of a prisoner of war’s

entitlement timeously to inform his or her family of his or her capture [see:
Prisoners of War]. Its purpose is, thus, humanitarian.
Enshrined in Articles 70–71 gciii, the entitlement was previously recog-
nised in the 1929 Geneva Convention Relative to the Treatment of Prisoners of
War, relevant provisions of which were based upon the Hague Conventions of
1899 and 1907 [see: Hague Law] and lessons learned in World War i. gciii itself
draws furthermore on the lessons of World War ii.
Article 70 gciii requires that a detaining power enable every prisoner of
war to write a card “immediately upon capture”, or in any event “not later than
one week” after arrival at a camp. Detention in a mere transit camp cannot
Capture Card 223
serve to extend this time limit. The card can be addressed either directly to
the prisoner of war’s family or to the Central Prisoners of War Information
Agency [art. 123 gciii; see: Central Tracing Agency]. The rapid expedition of
the capture card is inherent to its conception. It must be dispatched as quickly
as possible and cannot be delayed.
Annex iv to gciii provides a model capture card. Its size and layout are
designed so as to: (a) minimise the administrative burden placed on the de-
taining power; (b) elicit all necessary information from the prisoner of war in
order to be efficient and effective; and (c) expedite the delivery of the card.
This model is not compulsory, but the card must be similar. While some of the
information is necessary (name(s), date and place of birth, and rank), a pris-
oner of war is not required to complete all fields on the card. Indeed, Article 70
gciii itself enables a prisoner of war to complete and send a capture card, it
does not impose an obligation, and a prisoner of war may decline to do so. The
detaining power is, however, obliged to make capture cards available, and to
send them once completed. The model capture card annexed to gciii reflects
that it must be completed by each prisoner of war upon capture and each time
his address is changed (by reason of transfer to a hospital or to another camp).
The icrc maintains that a detaining power may furthermore be obliged to en-
able prisoners of war to complete new cards in cases of ill health.
The entitlement to complete and send a capture card is without prejudice to
a prisoner of war’s entitlement to send and receive letters and cards in accor-
dance with Article 71 gciii. However, limitations may be imposed on the latter
category [see: Internment; Deprivation of Liberty, Treatment].
The purpose of the capture card is illustrated by the icrc’s 1983 Memoran-
dum to the belligerents of the Iran-Iraq War, in which the icrc referred to the
capture card system as “[o]ne of the essential provisions” of gciii, and noted
that it had “registered only 30,000 prisoners of war, leaving 15,000 to 20,000
families in the agony of uncertainty, which is precisely what the imperative pro-
visions of the Conventions are designed to avoid” (emphasis added).
Chris Black – the views expressed are those of the author alone and do not
necessarily reflect the views of the Special Tribunal for Lebanon
Bibliography
icrc, Memorandum from the International Committee of the Red Cross to the States
Parties to the Geneva Conventions of August 12, 1949 concerning the Conflict
between Islamic Republic of Iran and Republic of Iraq (1983).
S. Weil, ‘Relations with the Outside World’, in A. Clapham, P. Gaeta, M. Sassòli (eds.),
The 1949 Geneva Conventions: A Commentary (2015).
224 Casualties, Search for
Casualties, Search for. Under ihl, the expression “search for casualties”
refers to the obligation to look for those members of the armed forces who
are wounded, sick, or dead [see: Wounded and Sick; Dead Persons]. The duty
to collect the wounded and sick can be traced back to Article 6(1) of the 1864
Geneva Convention, which was expanded upon in the 1906, 1929 and 1949 Ge-
neva Conventions. It was then adapted to maritime warfare in 1899, by virtue
of the Hague Convention (iii), which was superseded in 1907 by Article 25 of
the Hague Convention x [2016 icrc Commentary gci, para. 1479].
The obligation to search for casualties is now contained in Article 15 gci,
which reinforces the provision of Article 12 gci (stating the general obliga-
tion to protect the sick and wounded under all circumstances). According to
the norm, “[a]t all times, and particularly after an engagement, Parties to the
conflict shall, without delay, take all possible measures to search for and col-
lect the wounded and sick, to protect them against pillage and ill-treatment, to
ensure their adequate care, and to search for the dead and prevent their being
despoiled”. Similar obligations can be found in Article 18 gcii, Articles 16 and
17 gciv, Article 10 api, and Article 8 apii [see also: rules 109–113 icrc Custom-
ary ihl Study].
Article 15(1) gci imposes an obligation to take steps “particularly after an
engagement”, i.e. after any kind of combat activity that may result in persons
being wounded, sick, or killed. The measures to be taken must be reasonable
in consideration of the circumstances (e.g. security issues and availability of
medical personnel). This holds especially true during engagement. This is why
Article 15 gci states that one has to act without delay, that is, as soon as the
circumstances permit to do so.
Like Article 12 gci, Article 15 gci applies only during international armed
conflict and only to the wounded and sick (and dead) who are members of
the armed forces or otherwise entitled to prisoner-of-war status. However, the
obligation to search for and collect the wounded and sick, including civilians,
is now considered to be part of customary ihl, applicable in both internation-
al and non-international armed conflict [rule 109 icrc Customary ihl Study;
for a different view, see: J.P. Benoit, ‘Mistreatment of the Wounded, Sick and
Shipwrecked by the icrc Study on Customary International Humanitarian
Law’, 11 yihl (2008)].
The same holds true for the duty to search for, collect and evacuate the dead,
to prevent them from being despoiled, and to dispose of them in a respectful
manner [2016 icrc Commentary gci, paras. 1477–1478]. This specific obli-
gation was first codified in Common Article 3 GCs and then extended with
Article 8 apii. It is now considered to be part of customary ihl, applicable
in both international and non-international armed conflicts [rules 112, 113, 115
Central Tracing Agency 225
icrc Customary ihl Study]. This rule applies without adverse distinction, i.e.
regardless to which party the dead belong and whether they have taken a di-
rect part in hostilities or not. The application of this rule can be extended to
civilians on the basis of Article 16 gciv – which applies to the whole of the
populations of the countries in conflict – and Article 8 apii, which does not
specify any distinction [rule 112 icrc Customary IH Study].
It is worth mentioning that the duty to search for casualties applies during
the entire armed conflict. According to the jurisprudence of the icj on the ap-
plication of the Genocide Convention, this duty arises at the instant that the
State learns of, or should normally have learned of, the existence of a serious
risk [Judgment, Case Concerning Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), icj, para. 431].
Lastly, the responsibility to search lies with the parties to the conflict, which
in turn delegate its execution to the armed forces. Those lacking the means to
evacuate the wounded and sick should rely on external help, for instance on
impartial humanitarian organisations, like the icrc [2016 icrc Commentary
gci, paras 1486–1491; see: International Committee of the Red Cross].
Bibliography
J.P. Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on
Customary International Humanitarian Law’, 11 yihl (2008).
Central Tracing Agency. The Central Tracing Agency (cta) is a Geneva-based

division of the icrc, established to collect information with respect to prison-
ers of war and interned civilian persons, and to transmit it to their country
of origin [see: Prisoners of War; Civilians; Deprivation of Liberty]. The cta
also acts as a technical adviser to governments and the National Red Cross and
Red Crescent Societies (National Societies) on matters pertaining to restoring
family links [icrc, Resolution 16, 25th International Conference of the Red
Cross (1986); see: Missing Persons; International Red Cross and Red Crescent
Movement].
The cta was founded in Basel pursuant to a resolution adopted at the Berlin
Conference of 1869. However, neither the creation nor the mandate of the cta
was based on any rule of international law [G. Djurović, The Central Tracing
Agency of the icrc: Activities of the icrc for the Alleviation of the Mental
Suffering of War Victims (1986), p. 27]. Subsequently, the cta assisted war
226 Central Tracing Agency
victims in various conflicts, such as the Russo-Turkish war (1877), the Balkan
wars (1912–1913), and World War i (1914–1918), at times exceeding its mandate
by not only assisting civilians and the wounded and sick, but also the able-
bodied [Djurović, pp. 33, 35, 54, 245]. The 1929 Geneva Convention on Prison-
ers of War provided a legal basis for a “Central Agency of information”, but only
in relation to Prisoners of War and not civilians [art. 79]. As soon as World War
ii erupted, the Central Prisoners of War Agency, the predecessor of the current
cta, officially opened. It was set up on the basis of the 1929 Convention to
relieve victims’ mental distress and, although it lacked a solid legal ground for
its activities on behalf of civilians, it provided assistance in this regard as well.
The 1949 GCs created the long-awaited legal framework. First, it was stated
that the creation of a cta is obligatory in armed conflict, regardless of the par-
ticipation of the icrc [art. 123 gciii; art. 140 gciv]. This implicitly means that,
as a matter of law, belligerents are free to turn down the offer of the icrc,
provided that a substitute agency is created in a neutral country. In practice,
however, the icrc has always carried out this role, given its unique experience
[Djurović, p. 2]. Additionally, unlike the previous Geneva Conventions, the
Agency’s assistance to civilians was recognized for the first time. The GCs fur-
ther improved the regulations of the 1929 Convention concerning the Agency’s
services pertaining to prisoners of war.
In 1960, however, the Agency adopted its current name, the cta. This change
indicated that the organization also took account of new categories of persons,
such as the victims of armed conflicts of non-international character, as well
as those of natural disasters [icrc, icrc Central Tracing Agency: Half a Cen-
tury of Restoring Family Links (2010)]. The cta found itself also involved in
activities in relation to internal disturbances and tensions that are not covered
by ihl [see: Internal Disturbances and Tensions]. In such extra-conventional
situations, the cta may still offer its services, grounded on the icrc’s right of
humanitarian initiative and its position as a neutral intermediary actor [com-
mon art. 3(2) GCs; see: International Committee of the Red Cross]. Yet, the
consent of States is indispensable in such situations.
Today, the cta, as a department of the icrc, is accorded permanent sta-
tus in api [arts. 33(3), 78(3) api]. It performs various activities, with the assis-
tance of the National Societies. For instance, people who are uncertain about
the fate of their relatives due to a situation of emergency may file a tracing
request. Once they have been found, the cta helps separated family members
collect the necessary documentation for traveling so that they may be reunited
[F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2013), p. 39].
Finally, it should be noted that the success of cta is in large part due to a
distinctive rule of conduct of the icrc: discretion. Since day one, the Agency
Chemical Weapons Convention (1992) 227
has made it clear that the information it handles is only accessible to the vic-
tims and their families. What is more, in cases where such transmission might
be detrimental to the persons concerned, no information is passed on at all.
This rule is particularly significant in the event of non-international conflict or
internal disturbances and tensions [Djurović, p. 247].
Omar Mekky – the views expressed are those of the author alone and do not
engage the International Committee of the Red Cross in any way
Bibliography
F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2013).
G. Djurović, The Central Tracing Agency of the icrc (1986).
icrc, icrc Central Tracing Agency: Half a Century of Restoring Family Links (2010).
icrc, History of the Central Tracing Agency of the icrc (2002).
Chemical Weapons Convention (1992). The 1992 Chemical Weapons Conven-

tion (cwc), formally known as “Convention on the Prohibition of the Devel-
opment, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction”, is the world’s most widely ratified disarmament treaty, with 193
States parties. It was adopted in Geneva on 3 September 1992 by the Confer-
ence on Disarmament, opened for signature in Paris on 13 to 15 January 1993,
and entered into force on 29 April 1997. Palestine became the most recent State
to adhere when it acceded in May 2018. Only Egypt, Israel (a signatory), the
Democratic People’s Republic of Korea and South Sudan were not party to the
Convention as at June 2018.
The cwc outlaws the development, production, stockpiling, transfer of
chemical weapons, and, in contrast to the Biological Weapons Convention
[see: Biological Weapons Convention (1972)], also explicitly their use. While
the obligations in the first paragraph of Article i cwc are still of a purely disar-
mament nature [“never under any circumstances […] (a) to develop, produce,
otherwise acquire, stockpile or retain chemical weapons, or transfer, directly
or indirectly, chemical weapons to anyone”], paragraph (b) contains an un-
equivocal prohibition on use of the weapons. This was necessary because of
reservations by more than 20 States to the 1925 Geneva Gas Protocol [see:
Geneva Gas Protocol (1925)], which had effectively reduced that treaty prohi-
bition to an undertaking of no first use. No reservations are thus allowed to the
cwc’s provisions [art. xxii cwc].
Today, largely as a result of the cwc, use of chemical weapons as a method
of warfare in armed conflict is prohibited under customary international law,
while intentional use amounts to a war crime, with the crime of “Employing
228 Chemical Weapons Convention (1992)
asphyxiating, poisonous or other gases, and all analogous liquids, materials or

devices” falling under the jurisdiction of the icc [rules 74, 156 icrc Customary
ihl Study; arts. 8(2)(b)(xviii) and (e)(xiv) ICC Statute].
Some use of chemical agents by the State outside the conduct of hostilities
in an armed conflict may, however, be lawful. Thus, the cwc explicitly prohib-
its use of riot control agents as a method of warfare [art. I(5) cwc], but allows
chemical agents to be used in law enforcement, including for domestic riot con-
trol purposes [art. II(9)(d) cwc], “as long as the types and quantities are con-
sistent with such purposes” [art. II(1)(a) cwc]. When these Convention rules
are respected, riot control agents are not to be considered chemical weapons.
Chemical weapons are identified in the Convention as “toxic chemicals”,
which are defined as: “[a]ny chemical which through its chemical action on
life processes can cause death, temporary incapacitation or permanent harm
to humans or animals” and which “includes all such chemicals, regardless of
their origin or of their method of production, and regardless of whether they
are produced in facilities, in munitions or elsewhere” [art. II(2) cwc].
As the Organisation for the Prohibition of Chemical Weapons (opcw) notes,
the toxic chemicals that have been used as chemical weapons, or have been
developed for use as chemical weapons, can be categorised as choking, blister,
blood, or nerve agents. The most widely known agents are as follows: chok-
ing agents – chlorine and phosgene, blister agents (or vesicants) – mustard
and lewisite, blood agents – hydrogen cyanide, nerve agents – sarin, soman, vx
[opcw, Brief Description of Chemical Weapons].
As part of the disarmament obligations under the Convention, States par-
ties are required to destroy all chemical weapons they own or possess, or which
are located in any place under their jurisdiction or control, or which they aban-
doned on the territory of another State party [arts. I(2)-(3) cwc]. Under the
terms of the Convention, all States parties were required to have destroyed all
of their stockpiles of chemical weapons by 2007 or, for those granted exten-
sions, no later than 2012. The United States failed to meet this deadline, having
destroyed only 90% of its total stockpile by April 2012. In March 2015, it began
destroying 2,611 tons of World War ii-era mustard agent in southern Colorado,
its largest remaining stockpile of chemical weapons. A year later, it was pro-
jected that destruction would be completed by the summer of 2020. The work
was being conducted with the help of remotely controlled robots. Russia, too,
failed to meet its final treaty deadline for stockpile destruction. In late October
2017, however, it announced that it had completed destruction.
Responsibility for oversight of the implementation of the Convention was
given to the opcw, specially created for the purpose. Despite the opcw’s
involvement in Syria, though, following that State’s accession to the cwc in
Child Soldiers 229
October 2013, chemical weapons have been used on many occasions during
the different armed conflicts that were ongoing as of writing. In March 2016, it
was claimed that some 1500 people had been killed by chemical attacks during
the five years of armed conflict. The report by the Syrian-American Medical
Society documented 161 chemical attacks in Syria on the basis of testimony
from doctors operating in the areas that had borne the brunt of chemical at-
tacks, leading to the deaths of 1491 people and injuries to 14581 others. More
than a third of the attacks used chlorine gas [K. Shaheen, Almost 1,500 Killed
in Chemical Weapons Attacks in Syria, The Guardian (2016)].
Bibliography
W. Krutzsch, E. Myjer, R. Trapp, The Chemical Weapons Convention: A Commentary,
(2014).
Child Soldiers. Child soldiers is a generic term without any legal definition.
Various provisions of treaty and customary international law prohibit the re-
cruitment of children and/or their use in hostilities by parties to international
armed conflict and non-international armed conflict. The prohibition is com-
plex, as these provisions refer to different standards and even (in one case)
distinguish between States and armed groups. Age restrictions range from 15
to 18 years and, along with other standards, vary depending on the applicable
instrument, the type of entity (State or non-State), and/or the form of liability
(entity or individual). A number of related international policy instruments
also exist. Generally, standards are more stringent in non-international armed
conflict than international armed conflict, and for armed groups than States.
Neither the 1949 GCs nor their predecessors address child soldiering. The
first prohibition appears in the 1977 APs [art. 77(2) api; art. 4(3)(c) apii].
Then, in a partially successful attempt to raise the age standard, the Optional
Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict (opac) was adopted in 2000 [see: Convention on
the Rights of the Child (1989) and its Protocols]. Furthermore, international
criminal liability is codified under the Rome Statute [art. 8(b)(xxvi), 8(e)(vii)
icc Statute].
The age standard of 15 applies under both APs and the Rome Statute. The
opac employs a differentiated system wherein armed groups [see: Armed
Groups] are addressed separately from States and subjected to an absolute age
limit of 18 years [art. 4 opac]. For States, age limits depend on the prohibited
230 Child Soldiers
act. The age limit for direct participation in hostilities by members of a State’s
armed forces and compulsory recruitment is 18 years [art. 1 opac]. For vol-
untary recruitment, State parties must raise the minimum age of recruitment
beyond 15, and deposit a binding declaration stating its minimum age [art. 3
opac]. This has generally been interpreted as a minimum age of voluntary re-
cruitment at 16. According to the icrc, while there is no uniform State practice
on minimum age for recruitment and use of children, it is at least 15 years of
age [rules 136, 137 icrc Customary ihl Study].
The scope of the prohibition on use of children in hostilities also varies from
use [art. 4 opac (regarding armed groups)] to participation [4(3)(c) apii; rules
136, 137 icrc Customary ihl Study], to direct participation [77(2) api, art. 1
opac (regarding States)] to active participation [art. 8(b)(xxvi), 8(e)(vii) icc
Statute]. Some commentators have been concerned that a wide interpretation
of the scope of the prohibition may lead to an equally wide interpretation of
what constitutes direct/active participation in hostilities for targeting pur-
poses [see: Direct Participation in Hostilities]. The unintended consequence
would be that, while more children are protected against use in hostilities, they
are then by definition also legitimate military objectives. A solution, as applied
by the icc with respect to “active participation”, is to recognize that these are
two distinct determinations even though the terminology may be effectively
the same. The icc Appeals Chamber in Lubanga abandoned the risk-based
definition of the trial court, where the determining factor was whether the
support provided by the child “exposed him or her to real danger as a potential
target” [Judgment, Lubanga, icc, Trial Chamber i (2012), para. 628]. Rather,
the Appeals Chamber found that active participation requires a link between
the activity and the hostilities, and should be determined on a case by case
basis, guided by examples enumerated in the icrc Commentaries to the APs,
and the Preparatory Committee’s Draft Statute [Judgment, Lubanga, icc, Ap-
peals Chamber (2014), paras. 333–335].
The prohibition on recruitment covers both formal and informal initiation,
the latter being particularly relevant to non-State parties that do not have for-
mal mechanisms of recruitment. Prohibited recruitment need not only be for
participation in hostilities, but it does require a link to military activity, such
that “recruitment’ into political or humanitarian wings of an armed group as
such would not be proscribed [Child Soldiers International, A Law unto Them-
selves? Confronting the Recruitment of Children by Armed Groups (2016),
p. 13]. As such, armed forces or groups that claim to be merely protecting chil-
dren who come to them, in the absence of other options, may comply with
international standards by ensuring such children are not linked to military
activities. In most cases, both voluntary and forced recruitment is prohibited
(noting that many question the notion of volition in such circumstances).
Child Soldiers 231
However, as seen above, a State party to opac (as opposed to armed groups)
may voluntarily recruit children above the age of its declaration, conditioned
on a number of safeguards [art. 3(2), 3(3) opac]. Furthermore, State parties to
Convention 182 of the International Labour Organization (ilo) must secure
the prohibition and elimination of forced recruitment of persons under 18 for
use in armed conflict [art. 3(a) ilo Convention 182]. While the Rome Statute
uses the terms conscripting and enlisting, these have been interpreted as equiv-
alent to recruitment, which is used in most other instruments [Lubanga (2012),
para. 607].
There are also differences in the duty of care. In international armed con-
flict, States must only take “feasible measures” to ensure that children do not
take a direct part in hostilities [art. 77(2) api], while armed groups must not
use children under any circumstances [art. 4(3)(c) apii]. Yet this also com-
pares apples and oranges, as in some instruments the restriction is on use by
own forces, while others create a duty to care regardless of affiliation of the
child.
Despite its advances in child protection, several criticisms have been lev-
elled at the opac. First, many of those who advocated the need for a new
instrument were dissatisfied that a straight -18 prohibition was not adopted
across the board. Second, while the opac is not an ihl instrument, it neverthe-
less runs contrary to the established principle of equality of belligerents [see:
Belligerents, Equality of]. At least one armed group has criticized and rejected
the opac for its bias [art. iv ndfp Declaration and Program of Action for the
Rights, Protection and Welfare of Children]. Third, there is controversy as to
whether it creates legal obligations on armed groups, although the Internation-
al Commission of Inquiry on Syria has applied the opac standard to armed
groups based on Syria being party to it [Child Soldiers International, p. 9]
Children who are members of State or non-State armed forces, or who par-
ticipate directly in hostilities, may be targeted according to the rules of ihl
[see: Combatants]. Once captured, children must be treated humanely and
additionally as prisoners of war, if they qualify as such [see: Prisoners of War].
The death penalty may not be pronounced on a person for an act committed
while under the age of 18 [art. 77(5) api; art. 6(4) apii]. While child soldiers may
commit international crimes, the icc does not have jurisdiction over persons
under 18 years [art. 26 icc Statute]. Recent commentary and jurisprudence
indicates that child members of armed forces and groups should be protected
against ihl violations of their own troops, particularly with respect to sexual
violence [2016 icrc Commentary gci, para. 547; Judgment on the Appeal of
Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the
Jurisdiction of the Court in respect of Counts 6 and 9”, Ntaganda, icc, Appeals
Chamber].
232 Child Soldiers
Beyond the legal prohibitions, policy instruments have been adopted by the
international community. The 2007 Paris Principles and Guidelines on Chil-
dren Associated with Armed Forces and Armed Groups (replacing the 1997
Capetown Principles) distinguish between unlawful recruitment and children
associated with armed forces and armed groups (cafaag), with the latter
referring to the category of persons under 18 years that should be eligible for
assistance. It is therefore not surprising that this definition goes beyond the
international legal prohibition to include the notion of association, encom-
passing a range of activities broader than use in hostilities, such as cooking and
sexual use. However, the cafaag definition is often conflated with that of the
legal prohibition.
The unsc has included recruiting and using of children in armed forces or
groups as one of its six grave violations against children [unsc Resolution
1261 (1999)]. Through its Monitoring and Reporting Mechanism (mrm), these
violations can trigger listing of violating parties on what the UN has referred
to as the “list of shame”. While the series of unsc Resolutions refer to “the
international law obligations applicable to [the party to the conflict]”, the mrm
rather applies the caafag definition [Office of the Special Representative
of the Secretary-General for Children and Armed Conflict (osrsg-caac),
unicef and dpko, mrm on Grave Violations against Children in Situations of
Armed Conflict – Field Manual (2014), Section D].
In 2017, The Canadian Armed Forces issued a Joint Doctrine Note on Child
Soldiers, billed as a precedent in specifically addressing the unique challenges
faced by military members confronted by child soldiers while deployed on op-
erations [Canadian Armed Forces, Joint Doctrine Note 2017-01]. The doctrine
gives direction on, inter alia, mrm reporting, child detainee handling, and en-
countering child soldiers. In the latter case, while the doctrine includes “clear
direction that when child soldiers are armed and presenting a valid threat,
caf personnel may be authorized to engage against them”, it also states that
caf personnel should seek to de-escalate confrontations with child soldiers
to the extent consistent with rules of engagement and the need for self-de-
fence. The doctrine also prioritises pre-deployment training and professional
education.
Jonathan Somer – the views expressed are those of the author alone and do not
necessarily reflect the views of the Canadian Red Cross or any other institution the
author is affiliated with
Bibliography
Child Soldiers International, A Law unto Themselves? Confronting the Recruitment of
Children by Armed Groups (2016).
M. Happold, Child Soldiers in International Law (2005).
Children 233
T. Vandewiele, A Commentary on the United Nations Convention on the Rights of the

Child – Optional Protocol: The Involvement of Children in Armed Conflict (2006).
Children. Children face severe risks associated with armed conflicts. They are
exposed to physical harm and psychological trauma like adults and, because of
their vulnerability, children are also comparatively even more affected by war
than adults. In some situations, children may be preyed upon for recruitment
or use by armed forces or groups. The colossal suffering of children in armed
conflict is in striking contrast to the theoretical protection given to them under
ihl: indeed, in addition to being protected as civilians [see: Civilians], they
also benefit from special protection as children.
1. The Protection of Children during Armed Conflicts

All the rights granted to children by the Convention on the Rights of the Child
(crc) [see: Convention on the Rights of the Child (1989) and its Protocols]
and other international human rights treaties continue to apply in war. In
particular, it stipulates that States parties must “take all feasible measures to
ensure protection and care of children who are affected by an armed conflict”,
according to their obligations under ihl [art. 38(4) crc]. In addition, both ihl
treaties and customary ihl protect children in all conflicts, whether they are
international or non-international.
gciv requires special protection for children in international armed con-
flict, notably with respect to the provision of food, clothing and tonics, and
education; care of children who are orphaned or separated from their fami-
lies; treatment during deprivation of liberty; the distribution of relief consign-
ments; the exemption from the death penalty, and the evacuation of children
from besieged and encircled areas [arts. 17, 23–26, 38, 49, 50–51, 68, 76, 82, 85,
89, 94, 119, 132 gciv; art. 77(5) api; art. 6(4) apii]. Article 14 gciv specifically
foresees the creation of safety zones and localities to protect children under
the age of 15 from the effects of war, underlining the particular emphasis of
ihl on the protection of children from the effects of attacks [see: Specially
Protected Zones].
api states that children should be provided with respect, care, and the aid
they require, including relief, education, protection from assault and recruit-
ment into armed forces, family reunification, and the exemption from the death
penalty [arts. 70, 74, 76, 77 api]. It also specifically regulates the evacuation of
children, providing that children can only be evacuated by their own nation-
als and with the written consent of their caretakers, and that they should be
provided with identification cards and education during their relocation [art.
78 api; see: Evacuation].
234 Children
In non-international armed conflicts, apii guarantees that children shall be

provided with the care and aid they require, including education, family re-
unification, evacuation, and protection from recruitment by armed forces and
from the death penalty [arts. 4(3), 6(4) apii].
As per Rule 135 icrc Customary ihl Study, State practice establishes that
“children affected by armed conflict are entitled to special respect and protec-
tion” in both international and non-international armed conflicts. According
to the icrc, State practice indicates that this special respect and protection
extend, in particular, to: protection against sexual violence; access to educa-
tion, food and health care; evacuation from areas of combat for safety reasons;
and reunification of unaccompanied children with their families. Rules 55, 80,
93–94, 105, 117, 120, 131, 136–137 icrc Customary ihl Study directly concern
children and cover a wide range of issues, including rapid and unimpeded pas-
sage of humanitarian aid to children [see: Humanitarian Relief]; prohibition
of booby-traps [see: Booby-Traps]; protection from sexual violence [see: Rape
and Sexual Violence], slavery [see: Slavery], recruitment into armed forces;
and guarantees of family reunification and unity. Children’s education is also
particularly protected [see: Education].
2. Children and Participation in Hostilities

Recruiting children or using them to participate in hostilities is prohibited
and criminalized under international law [art. 77(2) api; art. 4(3)(c) apii; see;
Child Soldiers]. The ihl provisions were reiterated in the crc and reinforced
by the Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict (opac): using non-binding lan-
guage, its Articles 1–2 seek to have States raise the minimum age for participa-
tion in hostilities and for compulsory recruitment to 18.
The prohibitions of child recruitment into armed forces or armed groups,
and of participation of children in hostilities are also deemed to be norms of
customary ihl, applicable in both international and non-international armed
conflicts [rules 136, 137 icrc Customary ihl Study].
The recruitment and use of children in hostilities is not only prohib-
ited by international law, but also criminalized notably under the icc Stat-
ute, according to which conscripting or enlisting children under 15 into
armed forces or groups or using them to participate actively in hostilities
constitutes a war crime in both international and non-international armed
conflicts [art. 8(2)(b)(xxvi), 8(2)(e)(vii) icc Statute]. The icc, following the
jurisprudence of the scsl, has notably helped clarify the difference between
conscription and enlistment, and the meaning of “active participation in
hostilities”.
Children 235
3. Detention of Children during Armed Conflicts

ihl offers a number of special protections to children detained during conflict
[see: Deprivation of Liberty, Treatment]. api prescribes that, when arrested,
detained, or interned for reasons related to the armed conflict, children should
be held in the same place and accommodated as family units [art. 75(5) api],
while those not accompanied by their families should be held in quarters sepa-
rate from adults [art. 77(4) api]. These special protections apply to children
under 15 who take direct part in hostilities, whether or not they are considered
to be prisoners of war [art. 77(3) api; see: Prisoners or War].
gciv requires, inter alia, that child internees be lodged together with mem-
bers of the same family, with some exceptions, and be provided with suitable
sleeping quarters and bedding, additional food, schooling, and playgrounds
[arts. 82(2)-(3), 85(2), 89(5), 94(2)-(3) gciv]. The age of a child internee must
also be taken into account while applying disciplinary penalties to internees
[art. 119(2) gciv].
apii also provides minimum guarantees by prescribing that children shall
be provided with the care and aid they require, including education, family
reunification, evacuation, and protection from recruitment by armed forces
and from the death penalty. These guarantees also apply when children are
deprived of their liberty, including those who have been taking a direct part in
hostilities [arts. 4(3), 6(4) apii].
State practice compiled under Rules 120 and 135 icrc Customary ihl Study
indicates that children deprived of their liberty must be held in quarters sepa-
rate from those of adults, except where families are accommodated as family
units.
Last but not least, it is important to note that the ihrl protections provided
by the crc continue to apply during armed conflict, and that detaining chil-
dren therefore remains a measure of last resort [art. 37(b) crc].
Cécile Aptel – the views expressed are those of the author alone and do not
necessarily reflect the views of the United Nations High Commissioner for Human
Rights or any other institution the author is affiliated with
Bibliography
C. Aptel, The Protection of Children in Armed Conflicts, International Children’s Right
Law (2018).
icrc, Legal Protection of Children in Armed Conflict (2003).
J. Kuper, International law concerning Child Civilians in Armed Conflict (1997).
G. Maquel, The Impact of War on Children: A Review of Progress since the 1996 United
Nations Report on the Impact of Armed Conflict on Children (2001).
A.-C. Nilsson, Children and Youth in Armed Conflict (2013).
236 Civil Defence
Civil Defence. Civil defence refers to “humanitarian tasks intended to protect

the civilian population against the dangers, and to help it to recover from the
immediate effects of hostilities or disasters and also to provide the conditions
necessary for its survival” [art. 61 api].
gciv initially provided specific legal protection to civil defence organisa-
tions in situations of occupation, stipulating that “special organisations of a
non-military character, which already exist or which may be established, for
the purpose of ensuring the living conditions of the civilian population by the
maintenance of the essential public utility services, by the distribution of re-
lief and by the organisation of rescues” must be permitted to continue their
humanitarian activities in the same way that National Red Cross Societies are
entitled to [art. 63(2) gciv].
Throughout the 1960s and until 1972, the icrc convened several meetings of
experts, which led it to introduce detailed proposals for rules on civil defence
in the two draft additional protocols to the GCs. During the negotiations of
api, States adopted seven articles defining the status of civil defence, its duties,
and its tasks. However, in the final version of apii, the provisions proposed by
the icrc were not embraced. Accordingly, ihl rules on civil defence apply
exclusively to international armed conflicts.
The list of tasks provided for in api is exhaustive and covers: warning, evac-
uation, management of shelters and blackout measures, rescue, medical ser-
vices, fire-fighting, detection and marking of danger areas, decontamination
and similar protective measures, provision of emergency accommodation and
supplies, emergency assistance in the restoration and maintenance of order in
distressed areas, emergency repair of indispensable public utilities, emergen-
cy disposal of the dead, assistance in the preservation of objects essential for
survival, and complementary activities necessary to carry out any of the tasks
mentioned. The international distinctive sign of civil defence is an equilateral
blue triangle on an orange background [art. 66 api, Annex i].
Despite the above tasks being clear, challenges to the implementation of this
legal protection and status are numerous and practice continues to show that
civil defence status and protection are not well understood and applied in con-
flict zones. The complexities of the legal framework (for instance the fact that
the law defines civil defence tasks, but does not afford legal protection to civil
defence organisations themselves) give rise, to some extent, to problems of rec-
ognition of civil defence organisations under international law and continue
to hinder the dissemination and mainstreaming of ihl rules on civil defence.
Aurélie Roche-Mair – the views expressed are those of the author alone and do
not necessarily reflect the views of the International Bar Association or any other
institution the author is affiliated with
Civilian Objects 237
Bibliography
H.-P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck, M. Bothe (eds.),
The Handbook of International Humanitarian Law (2008), pp. 263–268.
S. Jeannet (ed.), Civil Defence 1977–1997 – from Law to Practice (1997).
Civil War; see: Non-International Armed Conflict
Civilian Objects. In keeping with the fundamental principle of distinction,

military attacks may not be directed against civilian objects [see: Distinction;
Indiscriminate Attacks; see: Protected Objects]. As is the case with the defi-
nition of civilians [see: Civilians], ihl defines civilian objects in the negative:
a civilian object is any object that is not a military objective [see: Military
Objectives].
Special care must be taken to protect certain categories of civilian objects,
notably places of worship, civilian hospitals, schools and historic monuments,
though the singling out of these objects is largely symbolic or has historical
reasons [see: Hostilities, Conduct of; Attacks against Historic Monuments,
Works of Art or Places of Worship; Hospitals]. If civilian objects are likely to
be damaged as a result of an attack that is directed against a military objec-
tive (so-called “collateral damage”), the principle of proportionality has to be
respected [art. 57(2) api; see: Proportionality].
A civilian object loses its protection if, and for as long as, it has become
a military objective – namely because it is being used for military action or
purposes. Whether a civilian object has lost its protection is a fact-sensitive
assessment. Nevertheless, according to Article 52(3) api, in case of doubt, ob-
jects that are normally dedicated to civilian purposes shall be presumed not to
have lost their protection.
Intentionally directing attacks against civilian objects is a war crime under
Article 8(2)(b)(ii) icc Statute, although only in the context of international
armed conflicts and not in non-international armed conflicts. Also, only in the
context of international armed conflicts, it is a war crime under Article 8(2)(b)
(iv) icc Statute to launch an attack in the knowledge that it will lead to clearly
excessive incidental damage to, inter alia, civilian objects. In this regard, the
icc Statute arguably lags behind the current status of customary law. By con-
trast, intentionally directing attacks against “buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected” amounts to a war crime
in both international and non-international armed conflict [art. 8(2)(b)(ix),
(e)(iv) icc Statute].
238 Civilian Population
Volker Nerlich – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Criminal Court or any other in-
stitution the author is affiliated with
Bibliography
(2016), pp. 139–163.
M. Sassòli, L. Cameron, ‘The Protection of Civilian Objects. Current State of the Law
and Issues de Lege Ferenda’, in N. Ronzitti, G. Venturini (eds.), Current Issues in the
International Humanitarian Law of Air Warfare (2005).
C. Wuerzner, ‘Mission Impossible? Bringing Charges for the Crime of Attacking
Civilians or Civilian Objects before International Criminal Tribunals’, 90(872) irrc
(2008).
Civilian Population. According to Article 50(2) api, the “civilian population

comprises all civilians” [also: rule 5 icrc Customary ihl Study]. Thus, the
term is closely linked to one of the central concepts of ihl, that of civilians
[see: Civilians]. The expression civilian population refers to a collective of in-
dividuals. The relevant legal instruments of ihl contain specific obligations
that the warring parties have to respect vis-à-vis civilian populations: Part iv of
api and Part ii of apii contain a set of rules for the protection of the civilian
population. Similarly, Part ii of gciv contains rules for the protection of the
“populations of the countries in conflict” [art. 13 gciv].
The collective character of a civilian population leads to a potential chal-
lenge: how to address situations in which, among the civilian population,
there are individuals who do not qualify as civilians, for instance soldiers
on home leave. Article 50(3) api provides in this regard that “[t]he presence
within the civilian population of individuals who do not come within the defi-
nition of civilians does not deprive the population of its civilian character”.
As a result, individual non-civilians may exceptionally be protected by the
rules regarding the protection of the civilian population, even though they do
not have civilian status. Nevertheless, should the number of soldiers within
a civilian population be significant, they may be considered separately as a
military objective that may be made the object of an attack [see: Combat-
ants; Military Objectives]. Whether this is the case requires a fact-sensitive
assessment.
necessarily reflect the views of the International Criminal Court or any other
Civilians 239
Bibliography
K. Watkin, ‘The Notion of Combatant, Armed Group, Civilians and Civilian Population
in International Armed Conflicts’, in G.L. Beruto (ed.), The Conduct of Hostilities.
Revisiting the Law of Armed Conflict: 100 Years after the 1907 Hague Conventions
and 30 Years after the 1977 Additional Protocols (2008).
Civilians. The principle of distinction lies at the heart of modern ihl. As the
only legitimate objective of warfare is the weakening of the opposing party’s
military capacity, attacks may only be directed against combatants and other
military objectives. Civilians, in contrast, are to be protected and may not be
made the object of an attack, unless they directly participate in hostilities [see:
Distinction; Military Objectives; Direct Participation in Hostilities]. The
principal instruments of present-day ihl afford civilians special protection
and rights that go beyond those afforded to members of armed forces. As a
result, determining who is, or is not, a civilian is of pivotal practical and legal
importance.
Civilian status is often juxtaposed against combatant status. This is, how-
ever, not entirely precise: combatants are, in principle, members of an armed
force who are entitled to participate directly in hostilities [see: Combatants].
Nevertheless, there are also members of armed forces, notably medical and
religious personnel, who do not have combatant status, yet are not considered
civilians either [see: Medical Personnel; Religious Personnel]. Generally, the
determining factor for whether or not an individual has civilian status is lack
of membership in an armed force and not lack of combatant status: as put by
the jurisprudence of the icty, civilians are “persons who are not, or no longer
members of the armed forces” [Judgment, Blaškić, icty, Trial Chamber, para.
180; also: rule 5 icrc Customary ihl Study]. However, participants in a levée
en masse (i.e. “[i]nhabitants of a non-occupied territory, who on the approach
of the enemy spontaneously take up arms to resist the invading forces, without
having had time to form themselves into regular armed units, provided they
carry arms openly and respect the laws and customs of war”) are not consid-
ered members of the armed forces but are nonetheless not entitled to the sta-
tus of civilians [art. 4(a)(6) gciii].
Article 50(1) api also contains a negative definition of civilian status: broadly
speaking, a civilian is anyone who does not fall under the definition of protect-
ed persons under Article 4 gciii (and is therefore entitled to prisoner of war
status) or that of members of armed forces under Article 43 api. Article 50(2)
api stipulates that “[i]n case of doubt whether a person is a civilian, that per-
son shall be considered to be a civilian” until further information is available
240 Civilians
and, accordingly, should not be made object of attack [1987 icrc Commentary
api, para. 1920].
Similarly, but slightly more restrictively, Article 4(1) gciv defines as pro-
tected persons, in terms of this convention, individuals who are not protected
under any of the other three Conventions and who “find themselves, in case of
a conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals” [see: Protected Persons]. It must be
underlined, however, that status as a civilian and status as a protected per-
son under gciv are not entirely identical: while it is safe to say that all those
who have protected person status under this instrument are civilians, the op-
posite is not true. This is because, as seen above, Article 4(1) gciv stipulates
that the individuals in question must find themselves in the hands of the en-
emy. Civilians who are not in the hands of the enemy therefore do not qualify
as protected persons under gciv, even though they enjoy certain protections
under ihl.
Although conventional definitions of the term civilian exist only in respect
of international armed conflicts, the concept and the fundamental principle
of distinction are applicable to non-international armed conflicts as well. The
term civilian is used in, for example, apii [arts. 13, 14, 15, 17, 18 apii]. Also in
non-international armed conflicts, civilians generally are defined as individu-
als who are not members of an armed group. Questions arise, however, as far as
membership in non-State armed groups is concerned. The fundamental pro-
tection of civilians, namely not to be made the object of an attack, ceases to
exist when the individuals concerned are no longer passive by-standers to the
conflict. If civilians directly participate in hostilities, the protections under ihl
resulting from their civilian status no longer apply [see: Direct Participation
in Hostilities].
necessarily reflect the views of the International Criminal Court or any other
Bibliography
E. Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (2015).
C. Garbett, The Concept of the Civilian: Legal Recognition, Adjudication and the Trials
of International Criminal Justice (2015).
F. Kalshoven, ‘Civilian Immunity and the Principle of Distinction: Introduction’, 31(4)
Am. U. L. Rev. (1982), pp. 855–859.
I. Primoratz, Civilian Immunity in War (2007).
R. Schütte, Civilian Protection in Armed Conflicts: Evolution, Challenges and Imple-
mentation (2015).
Collective Punishment 241
A. Van Engeland-Nourai, Civilian or Combatant?: A Challenge for the Twenty-First

Century (2011).
Cluster Munitions; see: Convention on Cluster Munitions (2008)
Coastal Rescue Craft. Article 27 gcii provides that “[u]nder the same con-
ditions as those provided for in Articles 22 [notification and protection of
military hospital ships] and 24 [hospital ships utilised by relief societies and
private individuals of parties to the conflict], small craft employed by the
State or by the officially recognized lifeboat institutions for coastal rescue
operations, shall also be respected and protected, so far as operational require-
ments permit […]”. The effect of this provision is that coastal rescue craft are
accorded similar (but not in every respect identical) ihl protections and obli-
gations as hospital ships [see: Hospital Ships].
An example of expressly correlative rights and obligations is found in Ar-
ticles 30–32 gcii, relating to, inter alia, the stay of hospital ships in neutral
ports and their liability to the right of control and search, which apply equally
to coastal rescue craft. Other rights and obligations applicable to hospital ships
also apply to coastal rescue craft, albeit with some nuances and, in some in-
stances, as an implication drawn from interpretation of the treaty text, rather
than express words. One example is the cumulative conditions that must be
met before a coastal rescue craft loses its protection [2017 icrc Commentary
gcii, paras. 2372, 2384]. On the other hand, one example of a hospital ship
obligation that does not apply to coastal rescue craft is the prohibition, con-
tained in Article 34 gcii, on hospital ships employing “secret code for their
wireless or other means of communication” [2017 icrc Commentary gcii,
para. 2390].
Robert McLaughlin – the views expressed are those of the author alone and
Code of Conduct; see: Military Manuals; Armed Groups
Collateral Damage; see: Proportionality; Distinction; Civilian Objects; Indis-

criminate Attacks
Collective Punishment. Collective punishment is a form of sanction imposed

on persons or a group of persons in response to a crime committed by one of
them [P. Rabbat, S. Mehring, ‘Collective Punishment’, in R. Wolfrum (ed.), Max
242 Collective Punishment
Planck Encyclopedia of Public International Law (2015)]. Because conventional

ihl neither defines what a collective punishment is nor provides examples of
such punishment, the range of measures that could be encompassed by this
notion is not subject to a unanimous agreement. It may comprise, inter alia,
property destruction, murder of civilians, detention, prolonged curfews, and
inhuman treatment.
The prohibition of collective punishment has been included in different
provisions. Article 50 of the 1907 Hague Regulations provides that “[n]o gen-
eral penalty, pecuniary or otherwise, shall be inflicted upon the population on
account of the acts of individuals for which they cannot be regarded as jointly
and severally responsible”. As may be noticed, this definition did not exclude
the possibility of collective sanctions for individual acts for which populations
might be considered collectively responsible. In order to remove any uncer-
tainty, Article 33(1) gciv prohibits collective penalties and affirms that “[n]o
protected person may be punished for an offence he or she has not personally
committed”. The prohibition of collective punishment is also found in gciii
in relation to prisoners of war [arts. 26(6), 87(3) gciii] and the APs [art. 75(2)
(d), (4)(b) api; arts. 4(2)(b), 6(2)(b) apii]. Furthermore, according to the icrc,
the rule against collective punishment attained customary international law
status for both international and non-international armed conflicts [rule 103
icrc Customary ihl Study].
This prohibition was expressly excluded from violations considered to be
grave breaches of the GCs [see: Grave Breaches] on the grounds that they
“could be of varying degrees of gravity and would not be considered to be a
grave breach if committed in their less serious form” [Fourth Report Drawn
up by the Special Committee of the Joint Committee (1949), p. 118]. Nowadays,
however, the Statutes of the ictr and the scsl contain the prohibition of col-
lective punishment [art. 4(b) ictr Statute; art. 3(b) scsl Statute], although
it has been omitted from the icc Statute. It may be noted that, considering
the reality of contemporary armed conflicts, the lack of a specific definition
of collective punishment and its exclusion as an international crime from the
icc Statute may raise some concerns with respect to the future of criminal
prosecutions of such conduct.
Bibliography
S. Darcy, ‘The Prohibition of Collective Punishment’, in A. Clapham, P. Gaeta, M. Sassòli
(eds.), The Geneva Conventions: A Commentary (2015).
S. Darcy, ‘Prosecuting the War Crime of Collective Punishment’, 8 jicj (2010).
Combatants 243
P. Rabbat, S. Mehring, ‘Collective Punishment’, R. Wolfrum (ed.), Max Planck Encyclo-

pedia of Public International Law (2015).
Combatants. A combatant is, first and foremost, a member of the armed forces
of a party to an international armed conflict [art. 13(1) gci; art. 13(1) gcii; art.
4(A)(1) gciii; see: Armed Forces], who must respect ihl, including the obliga-
tion to distinguish oneself from the civilian population [see: Distinction]. In
addition, a member of another armed group that meets the further require-
ments of Article 4(A)(2) gciii or Articles 43–44 api is also a combatant. Those
further requirements are the following:
– Members of another armed group (militias and other volunteer corps, in-
cluding organised resistance movements) belonging to a party to an inter-
national armed conflict, provided that they distinguish themselves from
the civilian population, and: (i) are under responsible command; (ii) have a
fixed distinctive sign; (iii) carry arms openly; and (iv) act in accordance with
the laws and customs of war [art. 4(A)(2) gciii].
– Members of another armed group (i) that is under the responsible com-
mand of a party to an international armed conflict; (ii) that is subject to
an internal disciplinary mechanism; and (iii) who respect, individually,
the obligation to distinguish themselves from the civilian population in a
manner consistent with api [arts. 43–44 api]. Distinction in a manner con-
sistent with api means that, while combatants are obliged to distinguish
themselves from the civilian population, api recognises situations in armed
conflicts where, owing to the nature of the hostilities, combatants cannot
always do so but nevertheless retain combatant status if, in such situations,
they carry their arms openly.
Unlike api, gciii itself does not use the term combatant, but it is now a cus-
tomary norm applicable in international armed conflicts that “all members
of the armed forces of a party to the conflict are combatants, except medi-
cal and religious personnel” [rule 3 icrc Customary ihl Study]. It should
be borne in mind that medical and religious personnel in the armed forces
are not considered as combatants, as long as they do not participate directly
in hostilities [art. 33 gciii; art. 43(2) api; see: Religious Personnel; Medical
Personnel].
Furthermore, it is important to stress that combatant status does not exist
in non-international armed conflicts. While persons who participate directly
in non-international armed conflicts are occasionally referred to as combat-
ants, this practice should be avoided as it fails to uphold the legal rigour fun-
damental to the term.
244 Combatants
The most significant privilege arising out of combatant status is that com-
batants may participate directly in hostilities [art. 43(2) api; see: Direct Par-
ticipation in Hostilities]. They may lawfully attack legitimate objectives, and
may themselves be attacked as legitimate targets. A combatant’s function is
irrelevant to his status as combatant: frontline combat troops and rear ech-
elon cooks are, for instance, both combatants so long as they are members
of the armed forces. Likewise, members of the armed forces, even when not
actually fighting or on leave, remain combatants. Only when a combatant is
demobilised and assumes civilian status, or is hors de combat [see: Attacks
against Civilians and Persons Hors de Combat], is he no longer subject to
lawful attack. A logical corollary is that a combatant cannot be prosecuted for
direct participation in hostilities, although a combatant can be prosecuted for
violations of ihl, but this does not necessarily entail loss of combatant status
[art. 44(2) api]. Another important consequence of combatant status is that,
upon falling into the power of the enemy or of an adverse party, a combatant
is entitled to prisoner of war status, and enjoys the protections deriving from
that status [see: Prisoners of War].
The primary obligation imposed on combatants is that they must respect
ihl, and most notably the principle of distinction that infuses it. This prin-
ciple recognises the legitimacy of participating in hostilities to weaken one’s
adversary, but limits that legitimacy to those who distinguish themselves from
civilians. Furthermore, it prohibits them from attacking civilians or civilian
objects.
Seemingly a simple subject, the term combatant has become the subject of
some controversy following the proliferation and evolution of asymmetrical
warfare in the twenty-first century [see: Asymmetric Warfare].
While the terms “unlawful combatant” and “unprivileged combatant” are
alien to conventional and customary ihl, persons who directly participate
in hostilities, without combatant status, have increasingly been referred to
as “unlawful” combatants in both jurisprudence and State practice. There
are diverging views as to the status of such persons. On the one hand, “un-
lawful combatants” are considered protected by gciv as civilians based
on the plain wording of Article 50 api, which states that a “civilian is any
person who does not belong to one of the categories of persons referred
to in Article 4(A)(1), (2), (3) and (6) of [gciii] and in [art. 43 api]” and,
“[i]n case of doubt whether a person is a civilian, that person shall be con-
sidered to be a civilian” [see: Civilians]. On the other hand, those who do not
fulfil the combatant criteria, but, nevertheless, participate directly in hos-
tilities, are considered to belong to an undefined category that is deprived of
the protections of the GCs and their APs, and may be detained without due
process.
Combatants 245
Whilst it is undisputed that those participating directly in hostilities with-

out being entitled to do so cannot assume prisoner of war status once they fall
under the power of the enemy, determining the protections to which they are
entitled, if any, nevertheless remains a highly debated issue. However, to sug-
gest that “unlawful combatants”, to the extent that the term itself has meaning
in ihl, are deprived of any/all protections would appear to be untenable. gciv
may provide some measure of protection to “unlawful combatants” provided
that they meet the requirements of its Article 4, notably with respect to nation-
ality. Failing that, certain minimum guarantees do apply. First, Article 45(3) api
explicitly states that “[a]ny person who has taken part in hostilities, who is not
entitled to prisoner-of-war status and who does not benefit from more favour-
able treatment in accordance with [gciv] shall have the right at all times to
the protection of [art. 75 api]” [see: Fundamental Guarantees]. Furthermore,
there is Common Article 3 GCs, which, as customary ihl, provides minimum
protections to those affected by armed conflicts, both international and non-
international [see: Common Article 3].
There have been some important decisions by senior courts that illustrate
some of the challenges that arise when attempting to elucidate the ihl appli-
cable to alleged “unlawful combatants”. In the Hamdan case, the U.S. Supreme
Court at least recognised that Common Article 3 GCs is applicable to “unlawful
combatants”, as that term was used in that case. And, where Hamdan failed to
recognise the customary status of Article 75 api, the Supreme Court of Israel
did so in the Targeted Killings case, finding that nobody is beyond the protec-
tion of ihl, and that “unlawful combatants” are in fact civilians participating
directly in hostilities, who thus lose their protections while so participating.
Neither of these decisions can be considered declaratory of ihl of course; in-
deed, both contain disturbing weaknesses in their understanding and appli-
cation of ihl. But they are indicative both of some rare State practice in this
area, and of the difficulties in interpreting ihl in a manner that is faithful to its
spirit in the context of modern asymmetrical conflict.
Bibliography
G. Aldrich, ‘The Taliban, Al Qaeda, and the Determination of Illegal Combatants’, 96(4)
ajil (Oct. 2002).
K. Dörmann, ‘The Legal Situation of Unlawful/Unprivileged Combatants’, 85 irrc 45
(2003).
C. Garraway, ‘“Combatants” – Substance or Semantics?’, in M.N. Schmitt, J. Pejić (eds.),
International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour
of Yoram Dinstein (2007).
246 Command Responsibility
Command Responsibility. Command responsibility is a mode of liability by

which a superior can be held criminally responsible for failure to prevent or
punish unlawful conduct of a subordinate, of which he or she had knowledge,
or had reason to have knowledge of. Drawn from the military system of chain
of command, “command responsibility” is a military term. The more general
term “superior responsibility” indicates that the concept may also be applied to
non-military superiors, yet the more commonly used term “command respon-
sibility” will be employed here. The rationale behind command responsibility
is threefold: (i) ensuring adherence to ihl; (ii) preventing the commission of
international crimes; and (iii) providing for accountability through individual
criminal responsibility [see: Discipline].
1. Development
While command responsibility dates back to the fifteenth century, it was intro-
duced in international criminal law in the post-World War II-trials, especially in
the Yamashita case [Law Reports of Trials of War Criminals, Vol. iv (Yamashita),
US Military Commission]. In particular, Japanese General Yamashita was tried
by a US military commission for “unlawfully [disregarding] and [failing] to
discharge his duty as commander to control the operations of the members
of his command, permitting them to commit brutal atrocities and other high
crimes” [Yamashita, pp. 3–4]. The concept was further developed in the US
Nuremberg Military Tribunal’s High Command case [Judgment, von Leeb
et al., US Military Tribunal] and Hostage case [Judgment, List et al., US Military
Tribunal].
Although undoubtedly part of customary ihl, the concept was codified in
Article 86(2) api. Article 87 api establishes affirmative duties for superiors
with respect to unlawful acts by subordinates. Several national military manu-
als have recognized the concept. It was further codified in Article 7(3) icty
Statute, Article 6(3) ictr Statute, and Article 28 icc Statute. As a rule of cus-
tomary ihl, the concept applies in both international and non-international
armed conflicts [rule 153 icrc Customary ihl Study].
2. Elements
Command responsibility consists of several elements which were first estab-
lished by the icty in Čelebići [Judgment, Delalić et al. (“Čelebići”), icty, Trial
Chamber, 1998, para. 346] and later confirmed by other icty and ictr Cham-
bers. The icc Statute clarified the applicable elements in its Article 28.
First, a precondition for command responsibility is that an international
crime was or was about to be committed by another, as explicitly required by
Article 86(2) api.
Command Responsibility 247
Second, a superior-subordinate relationship must have existed. Within a

military structure, a superior may be located on every level of the chain of
command. It neither has to be an immediate superior, nor the highest-level
leader of command and the fact that there have been multiple superiors does
not eliminate responsibility. Further, the relationship is not limited to military
structures, but can also encompass “political leaders and other civilian supe-
riors in positions of authority” [Čelebići (1998), para. 356; see also: Judgment,
Akayesu, ictr, Trial Chamber, paras. 704–707]. The position as a superior may
arise de jure (for example, as direct military commander) or de facto (for exam-
ple, by way of effective control over the other person). Effective control can be
defined as “having the material ability to prevent and punish the commission
of the offences” [Čelebići (1998), para. 378]. The mere appointment as com-
mander does not suffice.
Third, the mens rea standard for command responsibility is that the supe-
rior knew or had reason to know that the criminal act was about to be or had
been committed. The US Military Tribunal already established that “[c]rimi-
nality does not attach to every individual in this chain of command from that
fact alone. There must be a personal dereliction” [High Command case, p. 543].
Strict liability by position of command was, thus, rejected. Rather, evidence of
actual knowledge or a situation in which the superior had reason to know “in
the circumstances at the time” [art. 86(2) api] is required. In cases where the
superior had actual knowledge of acts being committed, proof can be estab-
lished through circumstantial evidence, such as the number or type of unlaw-
ful acts, when and where these were committed, the perpetrators involved, or
the location of the superior at the time of commission. More problematic is
finding whether a superior had reason to know that unlawful acts were com-
mitted or, in terms of Article 28(a)(i) icc Statute, should have known. It is re-
quired that reliable, concrete, and relevant information was available to the
superior from which he could have drawn the relevant conclusion but did not
[Čelebići (1998), para. 393]. In differentiating between military and other supe-
riors, Article 28(b)(i) icc Statute requires of civilian superiors that they must
have “consciously disregarded information which clearly indicated the unlaw-
ful act”. However, the burden of proof for this becomes more exigent and it
may be more difficult to prosecute civilian superiors.
Fourth, upon acquiring knowledge that crimes were or were about to be
committed by a subordinate, the superior must have failed to take the nec-
essary and reasonable measures to prevent the criminal act or punish the
perpetrator. Yet the two are not alternatives. The superior cannot evade re-
sponsibility for not preventing an unlawful act which he had knowledge of
by subsequently punishing the perpetrator [Judgment, Blaškić, ICTY, Trial
248 Command Responsibility
Chamber, para. 336]. A superior has a duty under ihl to intervene as soon as
he or she learns that unlawful acts may be or have been committed by his or
her subordinates. Subsequently, the superior has a duty to punish subordinate
perpetrators of crimes and prevent the commission of further crimes. Mea-
sures of prevention are, inter alia, the provision of adequate training in ihl,
the institution of an effective reporting system, the suspension of violent sub-
ordinates, the withdrawal of troops, or the postponement of military opera-
tions. In most military structures, measures to punish subordinates cannot be
taken by the superior him- or herself. Rather, the superior will have to initiate
the disciplinary process and ensure that his or her subordinate is reprimanded
by authorities responsible for disciplinary measures or criminally prosecuted.
This is explicitly foreseen in Article 28 icc Statute. Clearly, in order to be crimi-
nally responsible, the measures must be “within [the superior’s] power” [art.
86(2) api]. The superior must thus have the competence and material ability
to take either measure.
In this regard, in a landmark ruling, the ICC Appeals Chamber clarified that
“the scope of the duty to take ‘all necessary and reasonable measures’ is intrin-
sically connected to the extent of a commander’s material ability” to intervene
[Judgment, Bemba, ICC, Appeals Chamber, 2018, para. 167]. Indeed, according
to the Chamber, a commander is not required to take “each and every possible
measure at his or her disposal”, but only those measures that are necessary and
reasonable under the specific circumstances of the case [Bemba (2018), para.
169]. Thus, in assessing command responsibility, it is not enough to juxtapose
the fact that certain crimes were committed by the subordinates of a com-
mander with a list of measures that the commander could hypothetically have
taken; it must be specifically identified what the commander should have done
in concreto, taking into account the operational realities on the ground [Bemba
(2018), para. 170]. On this basis, the Appeals Chamber overturned a conviction
imposed by the Trial Chamber, primarily considering that the latter had paid
insufficient attention to the fact that the troops concerned were operating in
a foreign country and, consequently, had failed to properly appreciate the at-
tendant difficulties on the accused's ability, as a remote commander, to take
measures [Bemba (2018), para. 171].
Fifth, Article 28 icc Statute adds a causal element in that a commander
is responsible for crimes by his forces committed “as a result of his or her
failure to exercise control properly”. An icc Trial Chamber rejected a strict
“but for” causation even though the standard to be applied was not further
elaborated on [Judgment, Bemba, icc, Trial Chamber, 2016, para. 213]. The re-
quired causal link, which was introduced as early as the High Command case,
but subsequently omitted, could strengthen the focus on the individual’s
culpability.
Commissions of Inquiry and Fact-Finding Missions 249
3. Outlook
The icc Statute introduced some changes to the customarily recognized con-
cept which have re-opened discussion on aspects of command responsibility.
It remains controversial whether command responsibility imposes criminal
liability for a separate offence, namely an act of omission on the part of the su-
perior who failed to intervene or punish [Judgment, Orić, icty, Trial Chamber,
paras. 292–293; Judgment, Halilović, icty, Trial Chamber, para. 54], or whether
it entails a, possibly sui generis, mode of criminal responsibility by which the
superior is held responsible for the principal crime as committed by the sub-
ordinate [Čelebići (1998), para. 333]. The icc Statute declares a superior “re-
sponsible for crimes […] committed by subordinates” which could support the
latter approach [Bemba (2016), paras. 173–174].
Moreover, through the introduction of a should-have-known standard in Ar-
ticle 28 icc Statute, the required mens rea for military commanders is lowered
to a legal fiction. This form of liability by negligence had been rejected by lit-
erature and international tribunals since Yamashita [Judgment, Delalić et al.
(“Čelebići”), icty, Appeals Chamber, 2001, paras. 238–240] and should not
have been resurrected.
On a practical level, the introduction of increasingly autonomous weapon
systems poses new challenges to the concept [see: Autonomous Weapons].
Questions arise as to whether there actually is a person in command and what
he or she can control and whether that person can actually step in to prevent
international crimes. All elements of the concept may have to be re-evaluated.
Sigrid Mehring, Federica Pira – the views expressed are those of the authors
alone and do not necessarily reflect the views of any institution the authors are
affiliated with
Bibliography
K. Ambos, ‘Superior Responsibility’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.),
The Rome Statute of the International Criminal Court: A Commentary (2002).
G. Mettraux, The Law of Command Responsibility (2009).
W.H. Parks, ‘Command Responsibility for War Crimes’, in 62 Mil. L. Rev. (1973).
Commissions of Inquiry and Fact-Finding Missions. Commissions of inquiry

and fact-finding missions are ad hoc mechanisms of a non-judicial nature,
tasked with investigating allegations of violations of ihl, ihrl, and/or interna-
tional criminal law, and making recommendations for corrective action based
on their factual and legal findings. These mechanisms can be established at
the international level, typically under the auspices of the UN or other interna-
tional organizations, or at the domestic level.
250 Commissions of Inquiry and Fact-Finding Missions
Inquiry and fact-finding mechanisms are increasingly being used to respond

to situations of serious violations of ihl and ihrl, whether protracted or re-
sulting from sudden events, with a view to clarifying events and promoting
accountability. Over the last couple of decades, such mechanisms have been
established, for instance, in the former Yugoslavia, Darfur, Timor-Leste, Leba-
non, Georgia, the Occupied Palestinian Territories, the Syrian Arab Republic,
the Democratic People’s Republic of Korea, Sri Lanka, and the Central African
Republic.
Inquiry and fact-finding mechanisms typically operate for a limited period
of time. Indeed, these bodies are usually set up in response to allegations of
serious violations of ihl and human rights that require urgent reaction, and
in most cases they work under very tight time limits to complete their assess-
ments and report back to the mandating authority. To date, the only fact-finding
mechanism with a permanent character is the International Humanitarian
Fact-Finding Commission. However, this body, which was created by virtue of
Article 90 api, has never been activated with a concrete inquiry to pursue and,
as stated by some prominent scholars, remains a “sleeping beauty” with some
unattractive birthmarks.
At the same time, inquiry and fact-finding mechanisms can have very nar-
row scopes of inquiry. In some cases, they may only inquire into one particular
event that occurred within the broader context of an armed conflict that took
place over the course of many months or even years. The most critical example
in this respect is The Bloody Sunday Inquiry, which was established by the U.K.
House of Commons to inquire into the events of one day (30 January 1972)
when 13 people were killed by military forces in Londonderry, Northern Ire-
land. In other cases, these mechanisms may have broader mandates, either in
terms of temporal or spatial scope (e.g. the Independent International Fact-
Finding Mission on the Conflict in Georgia focused its investigations more
broadly on the origins and the course of the conflict in the country).
Interestingly, inquiry and fact-finding mechanisms may also constitute a pre-
liminary step towards the establishment of transitional justice mechanisms [see:
Transitional Justice] and involve the collection of first-hand information. While
the outcome of their work is also a report that includes conclusions and recom-
mendations, as opposed to truth commissions [see: Truth Commissions], inqui-
ry and fact-finding mechanisms often operate within tighter time constraints.
Consequently, they place less emphasis on the participation of victims and more
emphasis on providing a general overview of the events that took place.
While variations in the formulation of the mandate play a critical role in
the determination of the scope of inquiry and fact-finding mechanisms, re-
cent practice shows another reshaping of the nature and functions of these
mechanisms.
Commissions of Inquiry and Fact-Finding Missions 251
First of all, while contemporary inquiry and fact-finding mechanisms are

not only tasked with clarifying events, but also with making legal assessments
of the concerned facts, they may go beyond purely identifying violations of ihl
and other bodies of law and may make in fact quite detailed determinations on
points of international law, which, in some cases, has provided significant de-
velopments to the law. For instance, the Independent Commission of Inquiry
on the Syrian Arab Republic engaged in detailed discussions on whether par-
ticular acts amounted to violations of ihl or ihrl [UN Human Rights Council,
Report of the Independent Commission of Inquiry on the Syrian Arab Repub-
lic (2011), paras. 84–100].
Second, inquiry and fact-finding mechanisms may exercise discretion in
deciding the relevant body of norms to be applied in the situations they are
investigating. For instance, although the mandate of the Commission of Inqui-
ry for Libya referred only to ihrl, this body interpreted its mandate to include
ihl when the situation in these countries reached the level of non-interna-
tional armed conflict [UN Human Rights Council, Report of the International
Commission of Inquiry to Investigate all Alleged Violations of International
Human Rights Law in the Libyan Arab Jamahiriya (2011)]. Similarly, specific
aspects of the mandate, such as the inclusion of expressions as “crimes” or
“identifying those responsible”, has also been interpreted in such a way to en-
compass international criminal law norms in the fact-finding work of many
commissions.
Third, and connected with the point above, inquiry and fact-finding mecha-
nisms have progressively been tasked with mandates oriented, inter alia, to-
wards criminal prosecution, by including for instance international criminal
law as the applicable law or by explicitly providing these mechanisms with the
task to identify individual perpetrators with a view to holding them account-
able for their violations, including those that may amount to crimes against
humanity and war crimes [e.g. UN Human Rights Council, Resolution S-17/1:
Situation of Human Rights in the Syrian Arab Republic (2011), para. 13].
The tendency of fact-finding mechanisms to perform functions traditionally
associated with more formal and permanent legal adjudicative bodies, as well
as their orientation towards the further prosecution of war crimes and other
serious crimes, like crimes against humanity and genocide, which may be com-
mitted in times of armed conflict, has not gone unnoticed, particularly due to
some challenges arising from the process. As a result, there is an ongoing de-
bate with regard to, inter alia, the role of fact-finding mechanisms in selecting
and applying the law (e.g. specifically, about whether their activities eventually
represent a new form of adjudication), their methodology and practices (e.g.
relationship between ihl and international criminal law standards, such as
252 Common Article 1
the standard of proof), their relationships with other adjudicative bodies (e.g.
collection and transfer of evidence and documentation), and ultimately how
their progressive institutionalization may be reconciled within the contempo-
rary international law framework.
Valentina Cadelo – the views expressed are those of the author alone and do
not necessarily reflect the views of the International Commission of Jurists
Bibliography
T. Boutruche, Selecting and Applying Legal Lenses in Monitoring, Reporting, and Fact-
Finding Missions (2013).
C. Henderson, ‘Commissions of Inquiry: Flexible Temporariness or Permanent Predict-
ability?’, 45 Netherlands Yearbook of International Law (2014).
F. Kalshoven, ‘The International Humanitarian Fact-Finding Commission: A Sleeping
Beauty?’, 4 Humanitäres Völkerrecht (2002).
ohchr, Commissions of Inquiry and Fact-Finding Missions on International Human
Rights and Humanitarian Law – Guidance and Practice (2015).
Common Article 1. Common Article 1 GCs provides that “[t]he High Contract-
ing Parties undertake to respect and to ensure respect for the present Conven-
tion in all circumstances”. An identical provision is found in Articles 1(1) api
and apiii. Although apii, regulating non-international armed conflicts, does
not contain such a provision, it is possible to fashion such an obligation from
Article 1(1) apii, which provides that apii “develops and supplements Article
3 common to the Geneva Conventions”. It is widely accepted that Common
Article 1 GCs reflects customary international law [rule 139 icrc Customary
ihl Study].
At a minimum, Common Article 1 GCs requires contracting parties to en-
sure that the humanitarian principles underpinning the GCs are applied. This
provision is not merely hortatory or recognising discretionary powers. The
phrase “to undertake”, on a plain meaning, implies an obligation. The obliga-
tion is directed at the “High Contracting Parties”, and thus does not impose
direct obligations on non-State entities, such as organised armed groups and
international organisations. The obligation arises whether the State party was
engaged in an armed conflict at the time or not, and thus “in all circumstanc-
es”. However, there remains disagreement over the scope and effect of this
obligation.
The obligation “to respect” restates the principle of pacta sunt servanda:
member States are under a duty to respect the GCs irrespective of this phrase.
This is a negative obligation, in that it requires the State and its organs not
Common Article 1 253
to violate the GCs. Pursuant to the icrc Customary ihl Study, attribution is
broader than State organs and reflects the laws of State responsibility: armed
forces and other persons or groups acting in fact on its instructions, or un-
der its direction or control [rule 139 icrc Customary ihl Study; see: State
Responsibility]. It also includes an obligation not to encourage, aid, or assist
violations of the GCs by others.
More controversial is the phrase “to ensure respect”. One construction is
that it merely requires contracting States to adopt positive measures to ensure
the Conventions are respected within its jurisdiction by State and private ac-
tors. On this basis, the obligation is of means rather than result, the relevant
question being whether such States have taken all reasonable steps, and thus
exercised due diligence, to prevent violations of the GCs.
A more expansive interpretation of “to ensure respect” is that contracting
States are required to also ensure external compliance in response to trans-
gressions of the GCs by other contracting States. It is difficult to draw a conclu-
sion that the original intention behind Common Article 1 GCs was to secure
the more expansive interpretation. However, it is an interpretation available in
contemporary times, based on the erga omnes character of most norms con-
tained within the GCs and APs, as well as the purposive approach to treaty
interpretation, where such treaties have a humanitarian dimension.
In assessing what breaches trigger States taking measures “to ensure respect”,
the literature is divided, which will probably turn on the character and impor-
tance of the rights involved and the gravity of the breach. The obligation “to
ensure respect” on this more expensive reading is one of conduct rather than
result, with contracting States under a duty to do what they can to ensure the
transgressor State respects the GCs. The measures that must be taken, and
the criteria applicable to determine this, are not clear and will probably vary
depending on the respective States’ material capabilities to act. They might
include measures such as inducing States to ratify the GCs and assisting States
to build capacity in the field of ihl where this is absent, as well as diplomatic
measures such as public denunciation of a State’s conduct, to the exertion of
pressure through the imposition of (non-forcible) countermeasures.
Finally, the phrase “in all circumstances” embodies several legal meanings.
It speaks to the non-reciprocal nature of the obligation and the invalidity of
justifications by States for not observing their obligations. It also has a tempo-
ral and geographical dimension, applying at all times and in all territories in
which the GCs apply.
Bibliography
L. Boisson de Chazournes, L. Condorelli, ‘Common Article 1 of the Geneva Conven-
tions Revisited: Protecting Collective Interests’, 82 irrc (2000).
C. Focarelli, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?’, 21
ejil (2010).
U. Palwankar, ‘Measures Available to States for Fulfilling their Obligation to Ensure
Respect for International Humanitarian Law’, 34 irrc 298 (1994).
Common Article 2. Common Article 2 GCs sets down the circumstances in

which the 1949 Conventions apply. In addition to clarifying that the GCs apply
to all situations of declared war, international armed conflict and belligerent
occupation [see: International Armed Conflict; Occupation], it underlines
that some obligations must be implemented already in peacetime. Further-
more, it outlines the circumstances in which the GCs can become applicable
even if one of the belligerent States is not a party to them. Common Article 2
GCs appears in each of the four Conventions, underscoring that the circum-
stances for their applicability are identical. It is one of a number of “Common
Articles”, including ten other provisions of general application at the begin-
ning of each Convention, in addition to articles on repression of violations of
the GCs and a number of “Final provisions”.
Common Article 2 GCs reads: “[i]n addition to the provisions which shall be
implemented in peacetime, the present Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not recognized
by one of them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention
in relation to the said Power, if the latter accepts and applies the provisions
thereof”.
Common Article 2 had no equivalent in the earlier GCs (1864, 1906 and 1929),
nor in the Hague Conventions of 1899 or 1907. The need for it became apparent
during the 1930s, when States involved in large-scale armed conflicts refused
to apply the 1929 Geneva Convention, arguing that they had not declared war
and that ihl was therefore not applicable. It was deemed necessary to specify
unequivocally that the GCs applied not only to situations of declared war, but
also to armed conflicts existing de facto, as well as to situations of belligerent

occupation [2016 icrc Commentary gci, paras. 197–198].
The first part of the first sentence of Common Article 2 GCs affirms that
some of the obligations in the GCs must be implemented in peacetime. This
includes, for example, the adoption of legislation to ensure that the State is
able to repress grave breaches and to institute legislative or regulatory mea-
sures to be able to suppress abuses and violations of the GCs should they
arise. States also have an obligation in peacetime to disseminate the GCs
(and Protocols) and to ensure that their armed forces are trained in ihl [see:
Dissemination].
The second part of the first sentence makes clear that the GCs apply not
only to situations of declared war but also to all situations of international
armed conflict existing de facto. Its significance must not be underestimated:
it means that the GCs apply depending on the facts and according to whether
a situation meets objective criteria. Conversely, their application does not de-
pend on legal formalism, such as a declaration of war [2016 icrc Commentary
gci, paras. 202, 211].
The second paragraph of Common Article 2 provides that the GCs apply
to all situations of belligerent occupation, even if the presence of the foreign
forces is not resisted with military force. This provision was added in 1949, to
ensure that situations such as the occupation of Norway by Nazi Germany
during World War ii (when Norway offered no resistance, aware that it could
not prevail militarily) would be recognized as a situation of occupation [see:
Occupation]. It thus complements the first part of Common Article 2, which
covers situations of occupation arising in the course of armed hostilities be-
tween two States.
The last paragraph of Common Article 2 addresses the application of the
GCs to armed conflicts between States when one or more of them is not a
party to the Conventions. First, it affirms the abolition of the si omnes clause
that was present in the 1864 and 1906 GCs. That clause meant that, technically,
the earliest ihl Conventions ceased applying to a conflict as soon as one State
not a party to the treaty became a party to the conflict. It was abolished in
the revision of the 1906 Convention following World War i. Thus, even if one
State is party to a conflict but not party to the Conventions, the Conventions
continue to apply between those States that are parties. Secondly, the last para-
graph affirms that if a State is not party to the Conventions, but nevertheless
accepts and applies the provisions thereof, the other State parties to the con-
flict are bound by the Conventions vis-à-vis that State. This acceptance does
not require a formal declaration by the non-party State [2016 icrc Commen-
tary gci, paras. 344–350]. The universal ratification of the 1949 GC means that
the importance of this paragraph is somewhat limited, but it can be relevant

when conflicts arise in relation to the creation of new States.
Lindsey Cameron – the views expressed are those of the author alone and do
not engage the International Committee of the Red Cross in any way
Common Article 3. Article 3 common to the four GCs, which regulates con-
flicts “not of an international character” occurring on the territory of a High
Contracting Party [see: Non-International Armed Conflict], is a landmark pro-
vision of ihl. It sets out the minimum humanitarian guarantees that apply in
all armed conflicts, whether they are international or non-international. These
guarantees comprise the principle of humane treatment (including judicial
guarantees), non-discrimination, and the obligation to collect and care for the
wounded and sick [see: Inhuman Treatment; Fair Trial; Non-Discrimination;
Wounded and Sick]. As the icj put it, Common Article 3 represents a “mini-
mum yardstick” applicable in all armed conflicts and the rules contained
therein are a reflection of “elementary considerations of humanity” [Judg-
ment, Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), icj, para. 218]. Although Common Article
3 does not regulate the conduct of hostilities, it is accepted that, when this
provision applies, a number of rules on the conduct of hostilities also apply as
a matter of customary ihl and, to a lesser extent, treaty law [see: Hostilities,
Conduct of].
Historically, the inclusion of Common Article 3 in the GCs marked the
recognition that civil strife is a matter of humanitarian law concern, and not
something falling exclusively within a State’s domestic jurisdiction. This rep-
resents a considerable advance in the protection of victims of armed conflict.
Previously, violence involving non-State actors was only regulated at the will of
the parties to the conflict, most notably through ad hoc agreements, or through
instructions spontaneously adopted by States for their armed forces [see e.g.
the 1863 Lieber Code]. If a State recognized a non-State actor leading an in-
surrection on its territory as a belligerent (through the so-called recognition
of belligerency), the laws and customs regulating international armed conflict
and the law of neutrality applied to that conflict. However, recognition of bel-
ligerency was discretionary, and generally it only occurred if the insurgents
met certain requirements of organizational nature and territorial control that
would enable them to wage a war of a certain scale. Moreover, recognition of
belligerency by third States did not bring about the applicability of the laws of
war between the warring parties [2016 icrc Commentary gci, paras. 360–361;
L. Oppenheim, International Law (Vol. ii) (1912), para. 76].
The text of Common Article 3 reflects the delicate compromise that was
reached during the Geneva Diplomatic Conference between three main views.
Some States opposed any regulation of non-international armed conflicts. Oth-
ers advocated for a text that would only make a few humanitarian law provi-
sions applicable in all situations of non-international armed conflict, whereas
some delegations were in favour of making the whole Conventions applicable,
but in a more limited set of strictly defined circumstances. Once agreement
was reached on the need to address non-international armed conflicts in the
new conventions, the option of applying only certain provisions while giving
them the widest possible scope of application prevailed. This is why Common
Article 3 is considered a mini-convention within the Conventions, because it
contains a catalogue of minimum humanitarian rules in the Conventions that
apply to all non-international conflicts. States also agreed to leave open the
possibility that the parties to the conflict may decide to bring into force other
provisions of the Conventions by way of special agreements, as stated in the
last paragraph of Common Article 3 [see: Special Agreements]. This would
enhance the protection of victims of armed conflict, in keeping with the object
and purpose of ihl.
In any event, the last clause of Common Article 3 specifies that its applica-
tion does not affect the legal status of the parties to the conflict. Without en-
tering into detailed discussions on how ihl binds non-State armed actors, this
means that there is an inherent tension in Common Article 3 [S. Sivakuma-
ran, ‘The Addressees of Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli
(eds.), The 1949 Geneva Conventions: A Commentary (2015), pp. 425–426]. On
the one hand, non-State armed groups are bound by the humanitarian guar-
antees in Common Article 3, as is the State party to the conflict. On the other,
members of the non-State armed groups do not enjoy combatant immunity
[see: Combatants]; hence, States retain their prerogative to prosecute them
under their domestic law for committing belligerent acts.
Regarding its scope of application, Common Article 3 applies to “a
situation in which organized Parties confront one another with violence of
a certain degree of intensity” [2016 ICRC Commentary GCI, para. 387; see:
Non-International Armed Conflict]. The determination of the existence of
an armed conflict is significant, as it entails the application of ihl, alongside
the relevant rules of ihrl. Specifically, Common Article 3 regulates armed
violence involving at least one non-State armed group and either a State or
another non-State armed group. As such, Common Article 3 has a broader
scope of application than apii, which only applies in relation to States party
to the Protocol, and to conflicts involving a State and organized armed groups
exercising a degree of territorial control [see: Additional Protocol ii].
Once the threshold for the application of Common Article 3 is met, it ap-
plies to the whole territory of the State concerned. There is some controversy
regarding the geographical scope of application of Common Article 3 in situa-
tions where hostilities cross the borders of a State [see: Transnational Armed
Conflict]. Several factual scenarios are possible [J. Pejić, ‘The Protective Scope
of Common Article 3: More than Meets the Eye’, 93 irrc (2011), pp. 193–197].
Common Article 3 states that it applies to armed conflicts that occur “in the ter-
ritory of one of the High Contracting Parties”. Yet, it is generally accepted that
confrontations between a State and a non-State armed group are governed by
Common Article 3 even if the conflict has spillover effects onto the territory of
other States (typically, neighbouring States), if they consent to the use of force
on their territory [2016 icrc Commentary gci, paras. 474–476; Pejić, pp. 199–
203]. The more difficult question – to which there is no firm answer – is how far
the spillover effect may extend. The so-called global war on terror has drawn
considerable attention to this issue, especially in relation to targeted killings of
individual fighters who are located in the territory of States where there are no
active hostilities. In the US view, the war on terror – which, according to the
US Supreme Court, is governed by Common Article 3 [Opinion of the Court,
Hamdan v Rumsfeld, US Supreme Court, p. 6] – is fought on a global scale. In
contrast, the icrc takes a case-by-case approach to characterizing the use of
force in the fight against terrorism [see: Terrorism (ihl); Terrorism (Interna-
tional Law)]. The question remains whether ihl applies to the targeting of
fighters in the territory of States that are not involved in a conflict, or whether
the law enforcement paradigm applies in such circumstances. The matter has
considerable practical relevance, as the rules on the use of force under ihrl
are more restrictive than the ihl rules [see: Targeted Killing; International
Human Rights Law].
Importantly, the only requirement for protection under Common Article 3
is that the person or persons in question do not take active part in the hostili-
ties [see: Direct Participation in Hostilities]. Thus, protection is based on ac-
tual conduct, and not on the status of the victim. Defining the contours of the
notion of “active participation in hostilities” is thus of central importance to
determining whether a person enjoys protection under Common Article 3 [J.K.
Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, in
A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Com-
mentary (2015), pp. 435–439]. Moreover, there is no requirement that the vic-
tim has fallen in the hands of the enemy, or is in the power of the adverse
party to the conflict [2016 icrc Commentary gci, para. 545]. The icc Appeals
Chamber has recognized that “Common Article 3 provides for unqualified
protection against inhumane treatment irrespective of a person’s affiliation,
Compelling a Protected Person to Serve in the Forces 259
requiring only that the persons were taking no active part in hostilities at the
material time” [Judgment on the Appeal of Mr Ntaganda against the “Second
Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect
of Counts 6 and 9”, Ntaganda, icc, Appeals Chamber, para. 60]. Thus, the pro-
tective scope of Common Article 3 may extend to victims of unlawful conduct
perpetrated by persons affiliated with the same party to the conflict. This has
important implications, for example, for the criminalization of intra-party vio-
lence in non-international armed conflicts. Thus, serious violations of Com-
mon Article 3 committed by a party to the conflict against its own members (for
example, sexual violence perpetrated by members of an armed group against
child soldiers enlisted to fight in the same group; the extra-judicial killings of
members of a party to the conflict that are suspected of having collaborated
with the enemy, or detention by a party to the conflict of its own members)
could constitute war crimes, if they are committed with a nexus to the
conflict.
Overall, it can be argued that the broad wording of Common Article 3 is its
strength, and its weakness. On the one hand, the lack of detail in the text of
Common Article 3 has allowed for its application in the broadest possible set
of circumstances. On the other, it leaves something to be desired, both in terms
of substance of the relevant protections and the categories of beneficiaries.
Bibliography
J.K. Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, in A.
Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary
(2015).
J. Pejić, ‘The Protective Scope of Common Article 3: More than Meets the Eye’, 93 irrc
(2011).
S. Sivakumaran, ‘The Addressees of Common Article 3’, in A. Clapham, P. Gaeta, M.
Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).
Compelling a Protected Person to Serve in the Forces of the Hostile Power.

The prohibition to compel a protected person to serve in the forces of the hos-
tile power is one of the oldest in ihl [see: Protected Persons]. Article 44 of the
1899 Hague Regulations provides that “any compulsion of the population of
occupied territory to take part in military operations against its own country
is prohibited”. Article 52 of the same Regulations also prohibits “requisitions
in kind or services” if they involve obliging the population in taking part in
260 Compelling a Protected Person to Serve in the Forces of the Hostile Power
military operations against their country. Similarly, according to Article 23(h)

of the 1907 Hague Regulations, “a belligerent is […] forbidden to compel the
nationals of the hostile party to take part in the operations of war directed
against their own country, even if they were in the belligerent’s service before
the commencement of the war”. Furthermore, Article 51 gciv provides that
“the Occupying Power may not compel protected persons to serve in its armed
or auxiliary forces”. This rule may also be classified as customary ihl [rule 95
The icrc has clarified that such conduct “is a specific type of forced labour”
and that “[t]he reasoning behind the rule is the distressing and dishonourable
nature of making persons participate in military operations against their own
country – whether or not they are remunerated” [J.-M. Henckaerts, L. Doswald-
Beck, Customary International Humanitarian Law (2005), Vol. 1, pp. 333–334].
However, other forms of labour performed by prisoners of war and other pro-
tected persons may be permissible in ihl [see: Deprivation of Liberty, Treat-
ment; Workers].
While “[u]ncompensated or abusive forced labour” is, in general, prohibited
in both international and non-international armed conflicts under customary
ihl, compelling protected persons to serve in the forces of a hostile power, as a
variant of such labour, is, by its nature, prohibited in international armed con-
flicts only [Henckaerts, Doswald-Beck, pp. 333–334]. Violating the prohibition
to compel a protected person to serve in the forces of the hostile power may
attract individual criminal responsibility. According to Article 130 gciii, com-
pelling a prisoner of war to serve in the forces of the hostile power is a grave
breach of that Convention [see: Grave Breaches]. Similarly, Article 147 gciv
sets out that “compelling a protected person to serve in the forces of a hostile
Power” is a grave breach. The prohibition is also included in Article 8(2)(a)(v)
and 8(2)(b)(xv) icc Statute and Article 2(e) icty Statute.
Even though the modern international courts and tribunals have not dealt
with this issue in their cases, there are some legal precedents from the war
crimes trials following World War ii. In the Ministries case, conducted pur-
suant to Control Council Law No. 10, the US Military Tribunal held that “it is
not illegal to recruit prisoners of war who volunteer to fight against their own
country, but pressure or coercion to compel such persons to enter into the
armed services obviously violates international law” [Judgment, The United
States of America vs. Ernst von Weizsäcker et al., Nuernberg Military Tribunal
iv A, p. 549]. In the Wagner et al. case, Robert Wagner and others were found
guilty of recruiting French nationals to fight for German armed forces [Judg-
ment, Trial of Robert Wagner and Six Others, Permanent Military Tribunal at
Strasbourg, pp. 40–41].
Conciliation 261
Amir Čengić – the views expressed are those of the author alone and do not
Bibliography
(2005), Vol. 1, pp. 333–334.
Conciliation. Conciliation is one method of peaceful settlement of disputes

between States available in international law [art. 33(1) UN Charter].
Conciliation is a non-compulsory procedure available in treaties or on
which States agree ad hoc. It is usually conducted by a commission composed
by an uneven number of conciliators, who are appointed by the conflicting
parties and tasked with elucidating, within a reasonable time, the questions
in dispute, and with assisting the parties in reaching an amicable and mutu-
ally acceptable agreement. If no such settlement can be reached during the
consideration of the dispute, the commission may draw up and present rec-
ommendations for the consideration of the parties. Such recommendations
are not binding, unless the parties accept them [differently, art. 14(3) Treaty
Establishing the Organisation of Eastern Caribbean States]. Conciliation com-
missions adopt their own rules of procedure [UN Model Rules for the Concili-
ation of Disputes between States annexed to A/Res/50/50]. These may include
hearings, requesting documentation, summoning witnesses and experts, and,
with the parties’ approval, visiting the localities in question.
Under ihl, Articles 11 gci-iii and 12 gciv foresee conciliation proceedings.
These common provisions derive from and combine elements of Articles 83(3)
(encouraging meetings between representatives of belligerent parties) and 87
of the 1929 Geneva Convention on Prisoners of War, which established a formal
procedure for settling disputes [see also: 2016 icrc Commentary gci, para.
1268]. They provide that the protecting powers, whenever “they deem it advis-
able in the interests of protected persons, particularly in cases of disagreement
between the Parties to the conflict as to the application or interpretation” of the
GCs provisions, offer their “good offices” to the opposing parties [see also: art. 8
GCI; art. 8 GCII; art. 8 GCIII; art. 9 gciv; Protecting Powers]. The term par-
ticularly makes clear that the initiation of conciliation is not contingent upon
the existence of a dispute [2016 icrc Commentary gci, para. 1261]. Protect-
ing powers are presumed to act independently and not necessarily as agents
of the party whose interests they seek to protect [arts. 8(1) gci-iii; art. 9(1)
gciv].
262 Convention on Certain Conventional Weapons (1980)
The good offices may involve various measures, including the proposal of
convening a meeting among the parties concerned, in particular the authori-
ties responsible for the protected persons, possibly on neutral territory [see:
Protected Persons]. Each of the protecting powers may propose this measure
“either at the invitation of one Party or on its own initiative”. If necessary, the
protecting powers may propose that a “person belonging to a neutral Power” or
appointed by the icrc be invited to take part in the meeting. The conflicting
parties “shall be bound to give effect to the proposals made to them” for the
purpose of holding the meeting. This does not extend, however, to other pro-
posals made by the protecting powers, in particular any recommendations for
the settlement of the question in dispute. Although conciliation is only regu-
lated in provisions applicable to international armed conflict, an argument can
be made that this mechanism is available also in non-international armed con-
flict. In fact, the institution of conciliation is instrumental to ensuring respect
and implementation of ihl, which constitutes a paramount responsibility of
States [rule 144 icrc Customary ihl Study; see: Common Article 1].
The GCs differ from conciliation as understood traditionally, insofar as they
combine elements of good offices [arts. 2–8 1907 Hague Convention on Pacific
Settlement of International Disputes] and conciliation. They do not foresee the
institution of a commission of conciliators or the submission of a report, and
the working methods are rudimentary. Importantly, the GCs allow the initia-
tion of conciliation in the absence of any disagreement between the parties,
but whenever the protecting powers “deem it advisable in the interests of
protected persons”. To date, the conciliation mechanism has never been used.
Eleni Chaitidou – the views expressed are those of the author alone and do not
Bibliography
T. Boutruche, ‘Good Offices, Conciliation and Enquiry’, in A. Clapham, P. Gaeta, M.
Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).
UN Office of Legal Affairs/Codification Division, Handbook on the Peaceful Settle-
ment of Disputes between States (1992), pp. 45–55.
Continuous Combat Function; see: Direct Participation in Hostilities
Convention on Certain Conventional Weapons (1980). The 1980 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, also known as the Inhumane Weapons Convention, gives expression
Convention on Certain Conventional Weapons (1980) 263
to the principle of ihl that the right of parties to an armed conflict to choose
methods or means of warfare is not unlimited. The ccw aims at: (i) protect-
ing combatants from superfluous injury or unnecessary suffering and civil-
ians from indiscriminate effects of weapons; and (ii) pursuing a disarmament
objective [Preamble ccw]. The ccw is an umbrella treaty to which protocols
containing weapon-specific provisions are annexed.
The ccw grew out of a series of governmental expert meetings on the reaf-
firmation and development of ihl, which took place in the 1970s and fed into
the Diplomatic Conference (1974–1977) that negotiated the APs. In the course
of these processes, several categories of weapons that may cause unnecessary
suffering or have indiscriminate effects were identified: among them, incen-
diary weapons and certain explosive (“delayed-action”, “blast and fragmenta-
tion”) weapons [icrc, Weapons that May Cause Unnecessary Suffering or Have
Indiscriminate Effects: Report on the Work of Experts (1973); F. Kalshoven,
‘Arms, Armaments and International Law’, in Collected Courses of the Hague
Academy of International Law (1985), pp. 251–265]. However, the final version
of api contained only general rules on methods and means of warfare [e.g.
art. 35 api], but no weapon-specific provisions. Thus, with a view to reaching
agreements on prohibitions or restrictions of the use of specific conventional
weapons, a follow-on conference was held under the auspices of the UN in Ge-
neva, from 10 to 28 September 1979 and from 15 September to 10 October 1980.
This conference adopted the ccw, as well as three protocols.
Protocol i ccw (1980) prohibits the use of “any weapon the primary effect
of which is to injure by fragments, which in the human body escape detection
by X-rays” [see: Non-Detectable Fragments]. Protocol ii ccw (1980) places
limited restrictions on the use of landmines, booby-traps and other (explo-
sive) devices [see: Landmines; Booby-Traps; Explosive Weapons]. Protocol
iii ccw on Prohibitions and Restrictions on the Use of Incendiary Weapons
(1980) prohibits the use of air-delivered incendiary weapons to attack military
objectives located within a concentration of civilians [art. 2(2) Protocol iii
ccw; see: Incendiary Weapons]. In 1995, a fourth Protocol prohibiting the use
of blinding laser weapons was adopted [see: Laser Weapons, Blinding Weap-
ons] and, in 1996, Protocol ii was revised with a view to strengthen its pro-
visions. Protocol v on Explosive Remnants of War, adopted in 2003, seeks to
prevent and remedy the post-conflict humanitarian problems caused by unex-
ploded and abandoned explosive ordnance [see: Explosive Remnants of War].
Although some ccw Protocols contain provisions on the transfer of weap-
ons [e.g. art. 1 Protocol iv ccw] or their post-use effects [e.g. art. 3 Protocol v
ccw], the focus is on the regulation of the use of weapons as means of warfare.
Initially, the ccw and its Protocols applied only in situations of international
264 Convention on Cluster Munitions (2008)
armed conflict [art. 1 ccw; see International Armed Conflict]. An amend-

ment adopted in 2001 expanded the scope of application to non-international
armed conflict. Unless indicated otherwise [e.g. in art. 7(2) ccw; art. 8(1)(c)
Amended Protocol ii ccw; or art. 1 Protocol iv ccw], States parties are not
bound by the ccw in relation to States not parties. However, each party to a
non-international armed conflict, State and non-State actors alike, are bound
to apply the ccw and its Protocols if the State on whose territory the conflict
takes place has ratified the 2001 Amendment [amended art. 1(3) ccw].
ccw States parties meet annually to review the status and operation of the
Convention and every five years for a Review Conference. They can mandate
a Group of Governmental Experts (gge) to consider new issues relating to
conventional weapons. In the past, the gge has considered explosive rem-
nants of war, mines other than anti-personnel mines, small-calibre weapons
and ammunition, cluster munitions, improvised explosive devices and, most
recently, “emerging technologies in the area of lethal autonomous weapons
systems” [ccw, Final Document of Fifth Review Conference (23 December
2016)]. Not all of these discussions have yielded tangible results.
Maya Brehm – the views expressed are those of the author alone and do not
necessarily reflect the views of Article 36
Bibliography
J. Goldblat, Arms Control: The New Guide to Negotiations and Agreements (2002),
pp. 279–293.
F. Kalshoven, ‘Arms, Armaments and International Law’, Collected Courses of the
Hague Academy of International Law (1985).
D. Kaye, S.A. Solomon, ‘The Second Review Conference of the 1980 Convention on Cer-
tain Conventional Weapons’, 96(4) ajil (2002).
Weapons Law Encyclopedia, ‘1980 Convention on Certain Conventional Weapons’.
Convention on Cluster Munitions (2008). The Convention on Cluster Muni-

tions (ccm) is a disarmament treaty that outlaws most conventional cluster
munitions in existence. The Convention was adopted on 30 May 2008 by 107
States at a specially convened diplomatic conference in Dublin and entered
into force on 1 August 2010. As at June 2018, 103 States were party to the Conven-
tion, the latest to adhere being Sri Lanka.
Under Article 1(1) of the Convention, States parties undertake never un-
der any circumstances to use, develop, produce, acquire, stockpile, retain, or
transfer cluster munitions, as defined under its Articles 1 and 2. The definitions,
taken together, mean that a cluster munition encompasses both explosive
Convention on Cluster Munitions (2008) 265
submunitions and their parent container or dispenser. As provided in Ar-

ticle 2(3) ccm, explosive submunitions are munitions weighing less than 20
kilogrammes, that are designed to explode prior to, on, or after impact with a
target. Depending on the type and model, the number of submunitions dis-
persed or released by a cluster munition container or dispenser can vary from
several dozen to several hundred. Cluster munitions can be dropped from the
air or dispersed by artillery [see: Artillery].
The Convention’s general prohibitions also apply to “explosive bomblets
that are specifically designed to be dispersed or released from dispensers af-
fixed to aircraft” [art. 1(2) ccm]. While such munitions are not formally defined
as cluster munitions for the purposes of the Convention, the general prohibi-
tions on use, development, production, acquisition, stockpiling, retention, and
transfer in its Article 1 apply to these bomblets.
The Convention explicitly does not apply to landmines [art. 1(3) ccm], even
when they are dispersed from a parent container when they would otherwise
be classified as cluster munitions. The Convention also does not deem con-
tainers with fewer than 10 explosive submunitions to be cluster munitions fall-
ing within its purview as long as each submunition: weighs more than four
kilogrammes; can detect and engage a specific target object; and is equipped
with electronic self-destruct and self-deactivating features. This is, to date, the
only weapons treaty in which such autonomous sensor-fuzed weapons are spe-
cifically addressed (and allowed). But while the ccm neither prohibits nor re-
stricts such weapons, their use in the conduct of hostilities is still governed by
the general ihl rules of distinction, proportionality, and precautions in attack
[see: Distinction; Proportionality; Precautions, Active; Precautions, Passive].
Each State is required, within eight years of becoming party to the Con-
vention, to destroy all stockpiled cluster munitions that are under both its ju-
risdiction and its control [art. 3(1) ccm]. Thus, it differs materially from the
corresponding provisions in the 1992 Chemical Weapons Convention and the
1997 Anti-Personnel Mine Ban Convention, both of which apply to weapons
under a State party’s jurisdiction or control [see: Chemical Weapons Conven-
tion (1992); Anti-Personnel Mine Ban Convention (1997)]. In August 2016, the
civil society monitoring network Cluster Munition Monitor reported that 40
States parties had stockpiled cluster munitions at some point in time, of which
29 had completely destroyed their stockpiles, collectively destroying nearly 1.4
million cluster munitions containing almost 173 million submunitions. This
represents destruction of 97% of the total number of submunitions declared
by States parties [Cluster Munition Monitor 2016, p. 40].
The treaty deadline can be extended for an additional four years by either
a meeting of States parties or a review conference, and further extensions of
266 Convention on Cluster Munitions (2008)
four years may also be granted “in exceptional circumstances” [art. 3(3) ccm].
States may, though, retain a limited number of cluster munitions and explosive
submunitions for development of and training in detection, clearance, or de-
struction techniques, or to develop countermeasures [art. 3(6) ccm].
Each State must also clear its own territory (and other territory it controls)
of cluster munition remnants (cmr) within ten years of becoming party to
the Convention. cmr comprise abandoned cluster munitions, failed cluster
munitions, or unexploded submunitions or bomblets [art. 2(7) ccm]. As at
May 2016, 14 States parties (Afghanistan, Bosnia and Herzegovina, Chad, Chile,
Colombia, Croatia, Germany, Iraq, Laos, Lebanon, Montenegro, Mozambique,
Somalia, and the United Kingdom) and two signatories (Angola and the Demo-
cratic Republic of Congo) were confirmed or strongly suspected to be contami-
nated with cluster munition remnants [Mine Action Review, Clearing Cluster
Munition Remnants (2016)]. In accordance with Articles 4(5) to 4(8) ccm, if a
State party believes it is unable to complete clearance in time, it may request
extensions from a meeting of States parties or a review conference for addi-
tional periods of up to five years at a time. The first such requests are expected
at a meeting of States parties in 2019, at least from Laos, the world’s most heav-
ily cluster-munition-contaminated nation.
Detailed provisions are included on assistance for victims. Each State party
that has cluster munition victims on its own, or other territory under its con-
trol, must provide for their medical care and physical rehabilitation, psycho-
logical support, and social and economic inclusion [art. 5 ccm]. Not only those
who are killed or injured by cluster munitions are defined as “cluster munition
victims”; the term also extends to families and communities that have suffered
socio-economic or other harm [art. 2(1) ccm].
The ccm sets out mechanisms and obligations to promote its effective
implementation, including by requiring “all appropriate legal, administrative,
and other measures” at domestic level [art. 9 ccm]. This may include penal
sanctions to prevent and suppress violations by individuals or on territory un-
der each State party’s jurisdiction or control. States parties are required to re-
port annually to the UN Secretary General on the types and numbers of cluster
munitions destroyed, the extent and location of areas contaminated by cluster
munitions, the status of clearance programmes, measures taken to provide risk
education and warnings to civilians, programmes for victim assistance, and
measures taken domestically to implement the Convention [art. 7 ccm].
Annual meetings of States parties and five-yearly review conferences are
held to review adherence to, and implementation of, the Convention, in con-
formity with Articles 11 and 12 ccm. The first meeting of States parties was
held in Vientiane (Laos) in November 2010 and the first review conference
Convention on the Rights of the Child (1989) and Its Protocols 267
was held in Dubrovnik (Croatia) in September 2015. The work of implement-

ing the ccm is supported by an Implementation Support Unit, formally estab-
lished within the Geneva International Centre for Humanitarian Demining in
May 2015.
States parties are generally prohibited from assisting, encouraging, or induc-
ing anyone to undertake any activity prohibited by its provisions. However, Ar-
ticle 21 ccm, which deals with relations between States parties and States not
party, allows the former to engage in military operations or cooperation with
other States that may stockpile, transfer, and/or use cluster munitions prohib-
ited under the Convention.
with
Bibliography
G. Nystuen, S. Casey-Maslen (eds.), The Convention on Cluster Munitions: A Commen-
tary (2010).
Convention on the Rights of the Child (1989) and Its Protocols. The Con-
vention on the Rights of the Child (crc), adopted on 20 November 1989 and
entered into force on 2 September 1990, is an international treaty that contains
a set of legally binding international standards for the promotion and protec-
tion of children’s rights.
1. The Convention
The rights contained in the crc can be grouped into four main categories.
First, survival rights are the most basic rights, including the child’s rights to
life [art. 6(1) crc], adequate nutritious foods and clean drinking-water [art.
24(2)(c) crc], an adequate standard of living [art. 27 crc], and enjoyment of
the highest attainable standard of health [art. 24 crc]. Second, the crc cov-
ers development rights, including the rights to education [art. 28 crc], leisure
and participation in recreational and cultural activities [art. 31 crc], access
to information [art. 17 crc], and freedom of thought, conscience and religion
[art. 14 crc]. Third, it spells out protection rights, intended to safeguard chil-
dren against all forms of violence, abuse, neglect and exploitation [art. 19 crc],
including the right to special protection in times of war [arts. 38–39 crc].
Fourth, specific participation rights are also recognized for children, such as
the freedom to express their views freely in all matters affecting them [art. 12
crc] and the right to freedom of expression [art. 13 crc]. It is noteworthy that,
268 Convention on the Rights of the Child (1989) and Its Protocols
whilst the crc is generally construed as an international human rights treaty,

no derogations are permissible.
Many, but not all, of these rights are also enshrined in other international
human rights legal instruments, and as such apply to all human beings, includ-
ing children. But the crc consolidates and sometimes pushes further some
of the rights as far as children are concerned. For example, Article 10 iccpr
provides general protection to persons deprived of their liberty, including ju-
veniles, while Article 37 crc contains more specific protection concerning
detained or imprisoned children, such as a requirement that the detained or
imprisoned child maintains contact with his or her family through correspon-
dence and visits.
The crc sets out four general overarching principles. First, every child has
the right to life and States parties have the obligation to ensure the child’s sur-
vival and development [art. 6 crc]. Second, all rights guaranteed by the crc
have to be respected and ensured by States parties without discrimination [art.
2 crc]. Third, the best interests of the child shall be a primary consideration
in all actions concerning children [art. 3 crc]. Fourth, in all matters affecting
the child, the child’s own views have to be considered and given due weight in
accordance with age and maturity [art. 12 crc].
A key issue in this context is to define to whom the crc applies, namely
who is deemed to be a child. According to Article 1 crc, “[f]or the purposes
of the present Convention, a child means every human being below the age
of eighteen years unless, under the law applicable to the child, majority is at-
tained earlier”.
Two provisions of the crc explicitly refer to armed conflict: Articles 38 and
39. Article 38 broadly requires States to undertake to respect and ensure re-
spect for ihl rules relevant to children, and to take all feasible measures to
ensure protection and care of children who are affected by an armed conflict.
As such, the crc reiterates the importance of ihl, but is not as specific as the
GCs, in particular gciv and its provisions on particular issues, for example the
transfer or evacuation of children [arts. 17, 24(2), 49(3), 132(2) gciv] or family
reunification [arts. 24(1), 25, 26, 49(3), 82 gciv] [see: Children]. Article 38 crc
also covers the recruitment and participation in hostilities of children under
the age of 15 [see: Child Soldiers]. It reiterates the provisions of the APs [art.
77(2) api; art. 4(3)(c) apii] and has been reinforced by the Optional Protocol
to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict (opac). Article 39 crc concerns the physical and psychologi-
cal recovery, as well as the social reintegration, of children victims of armed
conflicts.
Convention on the Rights of the Child (1989) and Its Protocols 269
2. The Optional Protocols

Three optional protocols to the crc have been successively adopted, further-
ing child rights in specific domains.
First, opac, which was adopted by unga Resolution 54/263 of 25 May 2000
and entered into force on 12 February 2002, focuses on the prohibition of the
recruitment and use of children as soldiers in armed conflicts, furthering the
provisions of Article 38 crc. It seeks to have States ensure that members of
their armed forces under the age of 18 do not participate in hostilities, and that
persons under that age are not compulsorily recruited [arts. 1–2 opac]. States
are also required to raise the minimum age for voluntary recruitment [art. 3
opac]. opac also provides that non-State armed groups should not, under
any circumstances, recruit or use in hostilities children under 18, and requires
States parties to take all feasible legal measures to prohibit and criminalize
such practices [art. 4 opac].
Second, the Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution and child pornography (opsc),
which was adopted by unga Resolution 54/263 of 25 May 2000 and entered
into force on 18 January 2002, prohibits and defines the sale of children, child
prostitution and child pornography [arts. 1–2 opsc], and requires States par-
ties to criminalize these offences and, where appropriate, to establish the li-
ability of offenders in their domestic legal order [arts. 3–4 opsc].
Finally, the Optional Protocol to the Convention on the Rights of the Child
on a Communications Procedure, which was adopted by unga Resolution
66/138 of 19 December 2011 and entered into force on 14 April 2014, creates an
international complaints procedure for child rights violations, allowing chil-
dren from States parties to bring complaints about violations of their rights
directly to the UN Committee on the Rights of the Child if no remedy was
found at the national level.
3. Practical Application
The crc and its Protocols have helped to change the way children are viewed
and treated: as human beings with a distinct set of rights and their own agency,
instead of passive objects of care and charity. Moreover, the quasi-universal
acceptance of the crc (all States except one are parties to it) underlines the
global commitment to advance children’s rights, at least theoretically.
However, the reality in terms of application and the gaps thereof show that
much more remains to be done to protect the rights of all children in the con-
text of armed conflicts.
270 Customary International Humanitarian Law
Bibliography
S. Detrick, A Commentary to the Convention on the Rights of the Child (1999).
T. Liefaard, J. Sloth-Nielsen, The United Nations Convention on the Rights of the Child:
Taking Stock after 25 Years and Looking Ahead (2016).
ohchr and Save the Children Sweden, Legislative History of the Convention of the
Rights of the Child (2007).
E. Verhellen, Convention on the Rights of the Child: Background, Motivation, Strate-
gies, Main Themes (2000).
Conventional Arms; see: Arms Trade Treaty (2014); Convention on Certain

Conventional Weapons (1980); Small Arms and Light Weapons
Counter-Terrorism; see: Anti-Terrorist Operations; Terrorist Organizations
Cruel Treatment; see: Inhuman Treatment
Cultural Property; see: Hague Convention for the Protection of Cultural Prop-
erty (1954) and its Protocols
Customary International Humanitarian Law. Customary ihl fulfils an im-

portant role in the legal framework of ihl for several reasons. It applies uni-
versally, regardless of whether States are party to the relevant ihl treaties. For
example, even though the 1949 GCs − of which the majority of the rules are
considered to be customary ihl − have been ratified by 196 States, not all States
are party to the APs. Accordingly, in situations covered by the APs, States not
party to these treaties would have to see if customary law provides for rights
and obligations. Furthermore, besides the difference in the applicable rules
depending on which State is party to the conflict, a considerable gap exists in
the application of treaty law in non-international armed conflicts where only
Common Article 3 GCs applies and apii for States party to it [see: Common
Article 3; Additional Protocol ii]. Customary ihl is therefore of utmost im-
portance and partly fills this gap, with regard to the essential rules on the pro-
tection of civilians, conduct of hostilities, and means and methods of warfare,
where State practice shows acceptance by States of these customary rules as
Customary International Humanitarian Law 271
applicable in non-international armed conflict [Decision on the Defence Mo-

tion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber,
paras. 126–127]. Customary ihl also can be used to interpret the rights and
obligations stemming from treaties, detailing how a certain treaty rule should
be applied through subsequent practice in the application of such rule by the
parties.
Customary ihl was revived during the last decades due to the case law of the
international (criminal) courts and tribunals, in particular the icty, as well as
the customary ihl study conducted by the icrc [see: International Criminal
Tribunals; Hybrid or Internationalised Tribunals]. These actors are not direct-
ly involved in the creation of customary law, but are involved in the collection
of practice and the identification of customary rules. Nevertheless, the impact
of identifying rules by such actors should not be underestimated and in some
instances it is argued (or criticized) that their findings also contribute to a cer-
tain extent to the creation or crystallization of customary rules of ihl.
Two elements are required in order to determine whether a rule of custom-
ary international law exists in general: general practice which is accepted as
law [see: Customary International Law]. These elements are no different for
the determination of a rule of customary ihl. However, establishing whether
a rule is custom in the field of ihl poses particular difficulties for several rea-
sons. First, the practice would be limited to that of belligerents, which makes it
difficult to establish that there is a nearly universal or at least widespread gen-
eral practice, and even more so to prove that there is opinio iuris. Second, ihl
contains many prohibitions requiring States to abstain from certain behaviour.
In such cases, it is often difficult to discern the opinio iuris, because it is not
always clear whether a State is abstaining from such acts out of a sense of legal
obligation or other reasons.
The icrc, when identifying practice, assessed, amongst others, the follow-
ing elements: (i) physical acts (including battlefield behaviour, use of certain
weapons, and treatment provided to different categories of persons); (ii) ver-
bal acts (including military manuals, national legislation, national case-law);
(iii) practice of executive, legislative and judicial organs of a State (practice
should be public or communicated to some extent, including -confidential-
communications to the icrc which counts as State practice); (iv) claims made
by States before international courts, as well as findings of customary law by
those courts which have been considered by the icrc as persuasive evidence
of the existence to that effect; (v) practice of international organisations,
whereby the icrc also includes its own official statements as relevant prac-
tice and the official reactions to these statements; and (vi) to a certain extent,
272 Customary International Humanitarian Law
the negotiation and adoption of resolutions by international organisations

or conferences (as they are in most cases not binding but can be reflective of
State practice) [J.-M. Henckaerts, L. Doswald-Beck, Customary International
Humanitarian Law, Vol. i (2005), pp. xxxviii–xlv].
With regard to opinio iuris, the icrc explains that depending on the type
of rule (prohibition, obligation or a right to behave in a certain manner)
the assessment could differ [Henckaerts, Doswald-Beck, pp. xlv–xlviii]. For
example, in case of a prohibition, statements that such behaviour is pro-
hibited and condemnations when such behaviour takes place are impor-
tant, along with justifications or excuses from the State involved in the act,
as well as abstention from such behaviour. With regard to an obligation, be-
haviour in conformity with such an obligation is examined, including expres-
sions in favour of such behaviour or criticism by other States in the absence
of such behaviour. Finally, with regard to a right, opinio iuris can be found
where other States do not protest when a State exercises such a right. The
icrc furthermore refers to the difficulties in separating the two elements of
practice and opinio iuris, as often the act reflects both elements. Where prac-
tice is ambiguous, especially with regard to omissions, opinio iuris is likely to
be explicitly assessed separately (or at least that there is no clear evidence
of contrary opinio iuris) in order to ascertain whether a customary rule
exists.
The icty, in order to respect the nullum crimen sine lege principle, had to
verify on several occasions whether a customary ihl rule exists. In such as-
sessments, it referred, inter alia, to official pronouncements of States, military
manuals, and judicial decisions [Tadić, para. 99]; the drafting history of the
APs, previous conventions, and soft law norms [e.g. Judgment, Galić, icty, Ap-
peals Chamber, paras. 87–90]; it also referred to the customary ihl rules as
identified by the icrc in its Customary ihl Study, imt case law and its own
jurisprudence as well as to the Hague Conventions and Regulations, GCs, the
Aps and other ihl treaties as declaratory of customary law.
Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his
feedback) – the views expressed are those of the author alone and do not neces-
sarily reflect the views of the Institut de Droit International or the United Nations
High Commissioner for Refugees
Bibliography
J.M. Henckaerts, Study on Customary International Humanitarian Law: A Contri-
bution to the Understanding and Respect for the Rule of Law in Armed Conflict,
87(857) irrc (2005).
Customary International Law 273
Customary International Law. International custom is one of the primary

sources of international law, defined in Article 38(1)(b) icj Statute as “evi-
dence of a general practice accepted as law”. This wording has been taken
literally from the text of Article 38(2) pcij Statute. Customary international
law (cil), as opposed to international conventions, is unwritten and can be
deduced from the practice and behaviour of States. A customary rule is bind-
ing on all States even though a State does not necessarily have to participate
in its creation or show that it accepts it, as long as a State did not persistent-
ly object to the formation of the rule. The formation of such a rule does not
necessarily have to take a long time [Judgment, North Sea Continental Shelf
Cases (Denmark/The Netherlands v. Federal Republic of Germany), icj, paras.
73–74].
There are many views on what cil precisely entails, as it is not a straight-
forward concept but one that is influenced by social and political aspects.
However, it is well established that, in order to determine the existence, scope,
and content of a rule of cil, it is necessary to ascertain whether the follow-
ing two constituent elements are present: a general practice (State practice);
and whether this practice is accepted as law (opinio iuris) [e.g. Judgment, Asy-
lum Case (Colombia v. Peru), icj, pp. 14–15; Judgment, Fisheries Case (United
Kingdom v. Norway), icj, p. 131; North Sea Continental Shelf Cases (Denmark/
The Netherlands v. Federal Republic of Germany), para. 77; Judgment, Con-
tinental Shelf Case (Libya v. Malta), icj, para. 27; Judgment, Case Concern-
ing Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States), icj, paras. 183 et seq; Judgment, Jurisdictional Immunities of
the State (Germany v. Italy), icj, para. 55; Judgment, Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), icj, para. 99]. This
so-called “two-elements test” has been endorsed by the ilc.
1. The Objective Element: “General Practice”

Practice by States (conduct of the State in the exercise of its executive, leg-
islative, judicial and other functions) is primarily to be considered in the
assessment of evidence of the existence of a custom. In certain cases, prac-
tice by international organizations can also contribute to the formation of
cil [Advisory Opinion, Legal Consequences for States of the Continued Pres-
ence of South Africa in Namibia (South West Africa) Notwithstanding Security
Council Resolution 276 (1970), icj, para. 22].
Practice includes both acts and, to a certain extent, omissions. The prac-
tice by States (or international organizations) must be general, which can
be shown by three interlinked conditions: sufficiently widespread character,
representativeness and consistency. To which degree these three conditions
274 Customary International Law
are relevant depends on the subject and specific circumstances of a situation.

There should be geographical spread (which is not necessary for regional or
local custom) and the majority of States should be following the practice of
certain States or should not object or resist such practice (i.e. practice should
be “extensive and virtually uniform”) [North Sea Continental Shelf Cases, para.
74]. Some States could have more influence than others. There is also the view,
despite criticism, that the practice of “specially affected” States should have
more importance [North Sea Continental Shelf Cases, para. 73].
2. The Subjective Element: “Accepted as Law”

The State, in conducting the practice, must have a general belief that this
practice is necessitated by a legal obligation. The opinio iuris element dis-
tinguishes customary law from mere usage or habit. Opinio iuris can be de-
duced from both acts and omissions as under certain circumstances failure
to react to a certain practice may serve as evidence of opinio iuris [Judgment,
S.S. “Lotus” (France v. Turkey), pcij, p. 28; North Sea Continental Shelf Cases,
para. 78].
Sometimes, establishing opinio iuris is complicated, for example with regard
to norms imposing an abstention for which it has to be ascertained whether a
State refrained from committing such an act out of a legal belief or for differ-
ent reasons. Other examples include issues of ihl and hrl, as the practice in
those areas is not always exemplary, because more emphasis will be attached
to what is said than what is done, e.g. a State denies certain practice, justifies its
behaviour or condemns other States [Nicaragua Case, para. 186; see: Custom-
ary International Humanitarian Law].
3. Forms of General Practice and Opinio Iuris

The ilc explains that, in the assessing whether the two elements are present,
“regard must be had to the overall context, the nature of the rule, and the par-
ticular circumstances in which the evidence in question is to be found” [ilc,
Draft Conclusion 3 and Commentary – Fourth Report of the International Law
Commission on Identification of Customary International Law (ilc Report)
(2016), pp. 84–87].
Evidence of State practice and opinio iuris can take many forms, such as dip-
lomatic correspondence, decisions of national courts, and conduct in connec-
tion with the making of treaties of the adoption of resolutions by international
organizations. Those examples are not necessarily evidence for both State
practice and opinio iuris. Both elements have to be ascertained individually,
for which in some cases the same material could be used but “the existence of
one element may not be deduced merely from the existence of the other […]”
Customary International Law 275
[ilc Report, p. 87]. It also has to be taken into account that not all material
can be considered of equal value, as this depends on the nature and origin
of such evidence of conduct [Judgment, Case Concerning Rights Of Nation-
als of the United States of America in Morocco (France v. United States), icj,
p. 200].
4. Persistent Objector
When a new customary rule is in the making, it cannot be instantly obligatory.
A State objecting to the rule in formation will not be able to hinder the forma-
tion of the rule, but can be considered as opting out of it and thus the rule will
not be applicable to that dissenting State. The objection made by the State
“must be clearly expressed, made known to other States, and maintained per-
sistently” as articulated by the ilc [ilc Report, p. 79]. Nevertheless, there is
not much precedence on the persistent objector rule and it has been argued by
many that in case of emergence of a ius cogens rule, the persistent objector will
not be able to maintain its stance.
5. Relationship with Treaty Law

One of the other primary sources of international law is treaty law. The drafting,
ratification, accession, interpretation, and implementation of a treaty could be
used as evidence of practice and opinio iuris to assess whether a customary
rule exists. The ilc, in its Draft Conclusion 11(2), explains furthermore that
“the fact that a rule is set forth in a number of treaties may, but does not nec-
essarily, indicate that the treaty rule reflects a rule of customary international
law” [ilc Report, p. 102]. Three situations can be distinguished with regard to
the relationship between treaty law and cil:
– There is an existing rule of cil first, followed by a treaty: the rule of cil
is codified in the treaty, the treaty has a “declaratory effect” and the cus-
tomary rule remains in effect. Unless the customary rule is ius cogens, it
is also possible to conclude a treaty against the existing rule of customary
law;
– There is a rule of custom and a treaty evolving at the same time: the adop-
tion of the treaty may have a “crystallizing effect”, bringing the customary
rule into existence;
– A treaty is concluded first, followed by the emergence of a rule of cil on
the same subject matter: in this case the behaviour of States not party to the
treaty should be assessed in order to see if and what the content of the rule
of customary law is. The relations between a State party to the treaty and a
State that is not party to the treaty will be governed by customary law as will
be the relations among non-State parties.
276 Cyber Warfare
Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his feed-
back) – the views expressed are those of the author alone and do not necessarily
reflect the views of the Institut de Droit International or the United Nations High
Commissioner for Refugees
Bibliography
J. Crawford, Brownlie’s Principles of Public International Law (2012), pp. 20–47.
Cyber Warfare. Cyber operations during armed conflict employ cyber capa-
bilities in order to achieve objectives in, or by the use of, cyberspace [M.N.
Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare
(2013), p. 258]. Such operations are directed against, or sent via a computer or
computer system, through a data stream. Once the computer system concerned
has been infiltrated, it is possible to collect, export, destroy, alter, or otherwise
manipulate processes controlled by the targeted structure [C. Droege, ‘Get off
My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection
of Civilians’, 94(886) irrc (2012), p. 538].
The general principles of ihl, such as military necessity, distinction,
proportionality and the prohibition of unnecessary suffering [see: Interna-
tional Humanitarian Law, General Principles of] apply to cyber operations
[Schmitt, p. 105]. For the purposes of the law on the conduct of hostilities, a
“cyber attack is a cyber operation, whether offensive or defensive, that is rea-
sonably expected to cause injury or death to persons or damage or destruction
to objects” [Schmitt, p. 106]. For example, one form of cyber weapon, known
as a “botnet”, permits belligerent parties to launch coordinated attacks against
adversaries by asserting “command and control” over the enemy’s computer
servers [K.W. Hamlen, ‘Stealthy Software: Next-Generation Cyber-Attacks
and Defenses’, ieee International Conference on Intelligence and Security
Informatics: Big Data, Emergent Threats, and Decision-Making in Security In-
formatics (2013), pp. 109–112].
In 1977, at the time of the adoption of api and apii, cyber warfare did not ex-
ist, and it was assumed that the notion of attack only related to kinetic means
of conducting hostilities. However, a progressive interpretation of the concept
of attack in ihl can also be understood in a non-kinetic context, including
military operations (whether offensive or defensive) utilising computers
[D. Turns, ‘Cyber War and the Concept of “Attack” in International Humanitar-
ian Law’, in D. Saxon (ed.), International Humanitarian Law and the Changing
Technology of War (2013), pp. 221–225; see: Attacks]. Indeed, it is the degree
of consequential harm intended or resulting from a cyber operation, includ-
Cyber Warfare 277
ing the loss of functionality of computer infrastructure and other objects, that
distinguishes a cyber attack from a cyber operation [Schmitt, pp. 106–110]. To
qualify as an attack, a cyber operation against an object should make that
object unusable for its intended purpose, at least until it can be repaired [M.N.
Schmitt, ‘Rewired Warfare: Rethinking the Law of Cyber Attack’, 96(893) irrc
(2014), p. 199].
The question of attribution for a cyber attack is of vital importance for
international law [P. Marguiles, ‘Sovereignty and Cyber Attacks: Technol-
ogy’s Challenges to the Law of State Responsibility’, 14 Melbourne Journal of
International Law (2013), p. 496]. Nevertheless, in addition to their technical
complexity, one starkly evident quality of cyber weapons is (ironically) their
invisibleness. This characteristic of software code, combined with the vast
anonymity and interconnectivity of cyber space, presents profound chal-
lenges for determining whether the executors of cyber attacks are combatants,
civilians, or civilians directly participating in hostilities [see: Combatants;
Civilians; Direct Participation in Hostilities]. In addition to State armed
forces, for example, adversaries in cyber warfare can be individuals, loosely-
organised groups of anonymous hackers, as well as other non-State actors [H.
Harrison Dinnis, ‘Participants in Conflict – Cyber Warriors, Patriotic Hackers
and the Laws of War’, in D. Saxon (ed.), International Humanitarian Law and
the Changing Technology of War, pp. 251–252].
The rights and obligations accorded to each category of cyber operator
under ihl must remain robust before, during, and after cyber attacks. Conse-
quently, re-interpretation of, inter alia, the requirements for combatant status
provided in Article 4(A)(2) gciii – drafted in a period when warfare still in-
volved a degree of physical proximity between adversaries – will be necessary
to meet the new reality of cyber warfare. For example, the duty of combatants
to distinguish themselves from the civilian population could translate into an
obligation for State armed forces to launch cyber attacks from “a designated
military IP address” [Harrison Dinnis, p. 256] or a military network clearly
separate from civilian cyber infrastructure [see: Combatants]. Similarly, in the
context of non-international armed conflicts, the use of similar electronic em-
blems could apply to determinations of whether particular non-State actors
constitute an organised armed group [see: Armed Groups].
The challenge of attribution and identification of lawful targets in cyber
space relates directly to the api obligations to take feasible precautionary
measures to reduce injury to civilians and damage to civilian objects during
attack [see: Precautions, Active; Precautions, Passive]. In cyberspace, “every
component of the cyber infrastructure is a dual-use object” and armed forces
generally use the same cyber infrastructure that is intended for civilian pur-
278 Cyber Warfare
poses [R. Geiß and H. Lahmann, ‘Cyber Warfare: Applying the Principle of
Distinction in an Interconnected Space’, 45(3) Israel Law Review (2012), p. 383;
see: Military Objectives; Civilian Objects]. Accordingly, the duty to take fea-
sible precautions requires commanders preparing a cyber attack to study their
enemy’s networks to discern how to target only military objectives, and to
reduce potential damage to civilian objects [E. Talbot Jensen, ‘Cyber Attacks:
Proportionality and Precautions in Attack’, 89 International Law Studies (2013),
p. 210]. Failure to do so would constitute an indiscriminate attack [see: Indis-
criminate Attacks]. Moreover, given the complexity of cyber warfare, the high
probability of affecting civilian networks, and the sometimes limited under-
standing of the nature and effects of cyber operations on the part of those
planning and approving cyber attacks, commanders should, where feasible,
have technical experts available to them to determine whether appropriate
precautionary measures have been used [Schmitt, p. 138].
Conversely, the advent of precise cyber weapons capable of disabling en-
emy objects and infrastructure without kinetic force creates opportunities to
achieve military goals, while minimizing damage to civilian objects and inju-
ries to civilians [Y. Dinstein, ‘The Principle of Distinction and Cyber War in
International Armed Conflicts’, 17(2) Journal of Conflict & Security Law’ (2012),
pp. 274–275]. Thus, a decision to launch a cyber attack on a military objec-
tive, rather than a conventional kinetic attack, may by itself constitute a pre-
cautionary measure to avoid or reduce civilian casualties. In addition, cyber
weapons may constitute an important means to comply with the principle of
military necessity, namely to employ only the degree of force required to ac-
complish the submission of the enemy at the earliest possible moment with
the least expenditure of life and resources [see: Military Necessity].
Furthermore, the interconnectivity of military and civilian cyber infrastruc-
ture raises significant challenges for commanders who must conduct propor-
tionality assessments when they plan cyber attacks [see: Proportionality]. The
potential (although not necessarily the likelihood) for incidental damage is
enormous, even when employing the most sophisticated malware. Some cyber
weapons such as the “Stuxnet” worm are extraordinarily discriminate and pre-
cise [W. Broad, ‘Israel Test on Worm Called Crucial in Iran Nuclear Delay’, The
New York Times (2011)]. Nevertheless, even the “Stuxnet” malware eventually
found its way into the internet, where it autonomously infected thousands of
computer systems around the world with far less precision than its designers
intended [G. Keizer, ‘Why Did Stuxnet Spread?’, Computer World (2010)].
In the future, the dominance of cyberspace will become a strategic goal for
the military as important as achieving control over land, airspace or the sea has
been in traditional conflicts [Geiß, Lahmann, p. 384]. As the technology of cy-
Dead Persons 279
ber weapons develops, interpretation and application of the rules of ihl must
also advance to ensure the law’s ability to limit the suffering caused by warfare.
Dan Saxon – the views expressed are those of the author alone and do not nec-
Bibliography
Y. Dinstein, ‘The Principle of Distinction and Cyber War in International Armed Con-
flicts’, 17(2) Journal of Conflict & Security Law (2012).
R. Geiss, H. Lahmann, ‘Cyber Warfare: Applying the Principle of Distinction in an In-
terconnected Space’, 45 Israel Law Review 3 (2012).
D. Saxon (ed.), International Humanitarian Law and the Changing Technology of War
(2013).
M.N. Schmitt, ‘Rewired Warfare: Rethinking the Law of Cyber Attack’, 96(893) irrc
(2014).
E. Talbot Jensen, ‘Cyber Attacks: Proportionality and Precautions in Attack’, 89 Inter-
national Law Studies (2013).
Dead Persons. The protection of the dead under ihl refers to the duty of the
parties to the conflict to protect and treat respectfully bodies, remains, and
graves in both international and non-international armed conflicts. The ratio-
nale of this duty is to preserve the dignity and memory of the dead, to ensure
the right of the families to know the fate of their relatives [art. 32 api], and
therefore to facilitate families’ and society’s healing.
The respectful treatment of the dead in times of war has been a concern for
humans since ancient times, as acknowledged in Homer’s Iliad about Achilles’
treatment of Hector’s body. In modern ihl, the interdiction to rob or mutilate
the dead on the battlefield has been laid down in the 1880 Oxford Manual.
Furthermore, the obligation of the parties to examine and identify the bodies
of the dead prior to their interment or cremation was already foreseen in the
first Geneva Convention of 1906.
The 1949 GCs and their APs contain the following obligations for the par-
ties to the conflict with respect to the dead: (i) search for the dead and prevent
their bodies from being despoiled [arts. 15(1) gci; 18(1) gcii; 16(2) gciv; 33(4)
api; art. 8 apii]; (ii) record information on the dead of the adverse party who
have fallen into their hands or who died while detained by them, with a view to
their identification, and transmit the information (including certificates and
personal items) to the adverse party, through the Information Bureaux with
regard to protected persons, the protecting power, and the Central Agency
[arts. 16 gci; 19 gcii; 120(2) gciii; arts. 129(2)-(3), 136(2) gciv]; (iii) ensure in-
280 Dead Persons
dividual and honourable burial or cremation after careful examination [arts. 17

gci; 20(1) gcii; 120(3)-(5) gciii; art. 130(1–2) gciv]; (iv) ensure that gravesites
are properly maintained, respected, and marked to permit possible return of
the remains or ashes to the home country [arts. 17(3) gci; 120(4), (6) gciii;
130 gciv; art. 34 api]; and (v) investigate into violent or suspicious deaths of
protected persons held in their power (prisoner of war or civilian internee),
forward the information to the protecting power, and prosecute the person(s)
found responsible [arts. 121 gciii; art. 131 gciv]. It is worth noting that the
obligation to search for the dead is a prerequisite for nearly all remaining obli-
gations with regard to the dead [see: Casualties, Search for]. Accordingly, the
extent to which this obligation must be undertaken by the parties to the con-
flict has to be interpreted in light of this consideration.
Some of these obligations are applicable only in reference to dead protect-
ed persons [see: Protected Persons], namely the duty to record and forward
information or the duty to investigate and prosecute. Most of the other ob-
ligations listed are, however, applicable to both the party’s own civilians and
combatants. Moreover, when written ihl does not provide for protection of
the party’s own deceased, ihrl fills the gap [see: International Human Rights
Law]. Indeed, human rights monitoring bodies and courts inferred from the
right to life a procedural obligation on the part of the State to conduct an ef-
fective investigation into the alleged violations of the right to life occurring
during an armed conflict [Judgment, Al-Skeini et al. v. UK, ECtHR, Grand
Chamber, para. 164]. The duty to record information on the dead for identifica-
tion purposes may be seen as the prerequisite for the obligation under ihrl
to undertake effective investigations into the deaths occurring in the State’s
jurisdiction.
Most of the aforementioned obligations under the ihl of international
armed conflict are applicable in non-international armed conflict as well,
either by virtue of the interpretation of the written rules of ihl applicable
to non-international armed conflict [art. 8 apii; common art. 3 GCs, which
forbids “outrages upon personal dignity” of persons “hors de combat”], or by
virtue of customary ihl [rules 112–116 icrc Customary ihl Study], ihrl, and
international criminal law. As for the latter, the icc Statute lists for instance
outrage upon personal dignity as a war crime in non-international armed con-
flicts [art. 8(2)(c) icc Statute], which applies to dead persons [footnote 57 icc
Elements of Crimes; see: Outrage upon Personal Dignity].
ihl obligations with regard to the dead are mainly positive. The extent to
which they have to be carried out by the parties to the conflict is thus of para-
mount importance. There may be some uncertainty as to the temporal scope
of these obligations, since, for instance, the search for the dead must be carried
Deportation or Transfer of Civilians 281
out “at all times” [art. 15(1) gci]. The possibility of limitations pursuant to mili-
tary considerations [see: Military Necessity] or other circumstances such as
hygiene or weather conditions may generate further uncertainty [see: Public
Health and Hygiene]. For example, the obligation to bury a person individu-
ally is not absolute since mass graves are not completely prohibited. Similarly,
the obligation to search for the dead is applicable to all the persons fallen on
the battlefield, without distinction, but the wording “shall […] take all possible
measures” and “as far as military considerations allow” indicates that this is an
obligation of means, not of result [art. 15(1) gci; art. 16(2) gciv].
Nevertheless, it is questionable whether parties to a conflict might not be
tempted to eschew this obligation due to the realities of war, such as because
of permanent hostilities in certain zones. It is noteworthy that, even when a
party is not required to search itself for the dead, it must at least facilitate the
access of humanitarian organizations to the areas under its control. This may
imply the need to accept or negotiate a cease-fire [see: Armistice].
Anne-Laurence Graf-Brugère – the views expressed are those of the author
alone and do not necessarily reflect the views of any institution the author is af-
filiated with
Bibliography
D. Gavshon, ‘Chapter 14. The Dead’, in Clapham, A., Gaeta, P., Sassòli, M. (eds.), The
1949 Geneva Conventions – A Commentary (2015).
Deportation or Transfer of Civilians. Displacement of civilians is, deplor-

ably, a common feature of all armed conflicts. From an ihl perspective, how-
ever, it is extremely important to distinguish between the voluntary fleeing
or relocation of persons, on the one hand, and the deportation or forcible
transfer of civilians, on the other. The first is a regrettable, but unavoidable,
occurrence of war, determined by the “natural tendency of people to seek
refuge away from the battlefield” [G. Acquaviva, ‘Forced Displacement and
International Crimes’, in unhcr, Legal and Protection Policy Research Series
(2011), p. 13]. The second can be defined as the coercive and unlawful uproot-
ing of the inhabitants of a territory, which is, as such, generally prohibited
under ihl.
The relevant proscription dates back to the 1863 Lieber Code [art. 23 Li-
eber Code]. Nowadays, three main sets of rules are applicable, depending on
whether forced movement of civilians takes place in a situation of occupation
[see also: Transfer by the Occupying Power of its Own Population], in an in-
ternational armed conflict not involving occupation, or in a non-international
282 Deportation or Transfer of Civilians
armed conflict [V. Chetail, ‘The Transfer and Deportation of Civilians’,

in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions:
A Commentary (2015), p. 1186].
In the first scenario (occupation), the prohibition is set forth in Article
49(1) gciv, which provides that “individual or mass forcible transfers, as well
as deportation of protected persons from occupied territory to the territory
of the Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive”. The scope of the norm is broad and is
intended to embrace any type of forcible transfer and deportation (whatever
the distinction may be), irrespective of their purpose, the number of displaced
persons, and their destination (be it outside or within the occupied territory,
as confirmed by Article 85(4)(a) api and Article 8(2)(b)(viii) icc Statute). As
repeatedly stated by the icty, both deportation and forcible transfer refer to
the involuntary and unlawful displacement of individuals from the territory
in which they reside [Judgment, Krstić, icty, Trial Chamber, para. 521]. How-
ever, while for some the two notions relate to the same reality, others consider
that transfer and deportation are two distinctive concepts with two autono-
mous meanings. In this regard, “deportation” presumes movement beyond
State borders, whereas “forcible transfer” relates to relocation within national
boundaries [Krstić, para. 521; J.-M. Henckaerts, ‘Deportation and Transfer of
Civilians in Times of War’, 26 Vand. J. Transnat’l L. (1993), p. 472].
There have been longstanding debates among scholars as to whether Article
49 gciv corresponds to a rule of customary international law and, as such, is
binding on all States [Chetail, p. 1195]. These discussions have, however, lost
their pertinence, and the icrc is now of the view that the prohibition of mass
and individual displacement is part of customary international law, applicable
in both international and non-international armed conflicts [rule 129(A), (B)
In the second scenario (international armed conflict not involving occupa-
tion), the protection accorded by ihl is defined by reference to the State of
destination. In particular, Article 45 gciv proscribes any transfer to a State
which is not party to the Convention (or is unwilling or unable to apply it), or
to a country which may persecute protected persons [see: Protected Persons].
The rationale of the norm is to prevent any party to the conflict from evading
its own obligations arising from gciv, by transferring protected persons to a
State which does not respect the basic standards endorsed therein [1958 icrc
Commentary gciv, p. 266].
It should be noted here that, contrary to what is provided in Article 49 gciv,
deportation is not explicitly mentioned in Article 45 gciv. However, it is also
important to stress that the concept of transfer, for the purpose of Article 45
gciv, is intended to refer to relocations of persons beyond State boundaries,
Deportation or Transfer of Civilians 283
like deportations in Article 49 gciv and unlike transfers in Article 49 gciv. In

this regard, the icrc Commentary confirms that the concept of transfer under
Article 45 gciv is to be interpreted in a very broad sense, as including “any
movement of protected persons to another State, carried out by the Detain-
ing Power on an individual or collective basis […]” [1958 icrc Commentary
gciv, p. 266]. Nonetheless, by arguing that nothing in Article 45 gciv seems
to suggest that deportation – in the sense of expulsion – is to be regarded as
a form of transfer, the icrc Commentary also considers that this provision
would allow States to simply evade their obligations under gciv, by claiming
their right to expel individuals in those cases where State security so requires
[1958 icrc Commentary gciv, p. 266]. Although the terminology used at the
international level is not always uniform and may, sometimes, lead to some
confusion, such a restrictive interpretation contradicts the rationale of Article
45 gciv and should, therefore, be abandoned. Accordingly, mass expulsions
may be permissible in very exceptional circumstances, such as where the exis-
tence of a State is otherwise seriously endangered and, in any case, they must
not be discriminatory or violate fundamental rights.
In the third scenario (non-international armed conflict), while Common
Article 3 GCs is silent on forced displacement, Article 17 apii, at paragraphs
(1) and (2) respectively, distinguishes between internal and external displace-
ments. Furthermore, the different wording used to describe the two scenarios
(“ordered” on the one hand and “compelled” on the other) seems also to differ-
entiate between the modalities of displacement. In this respect, whereas para-
graph (1) refers to some sort of direct relocation, paragraph (2) seems to cover
indirect forms of displacement, such as those determined by destruction of
the environment or exhaustion of living resources [see: Environment; Attacks
against Objects Indispensable to the Survival of the Civilian Population].
If compared to Article 49 gciv, the proscription of apii is characterised
by some peculiarities. In particular, Article 17(1) apii provides that: “[t]he dis-
placement of the civilian population shall not be ordered for reasons related
to the conflict […]”. Apart from the difference in wording (the notion of “pro-
tected persons” in gciv is replaced by the expression “civilian population” and
the concepts of “transfer” and “deportation” are reduced to the indefinite term
“displacement”), the extent of paragraph (1) appears narrower, as the prohibi-
tion is on “ordering” displacement, rather than the displacement itself. Howev-
er, practice seems to support the interpretation that no order is necessary for a
violation of Article 17 apii to materialize [J. Willms, ‘Without Order, Anything
Goes? The Prohibition of Forced Displacement in Non-International Armed
Conflict’, 91(875) irrc (2009)]. Furthermore, the proscription only entails dis-
placements “ordered for reasons related to the conflict”, thereby questionably
tolerating relocation of civilians for any other economic, political, or demo-
284 DEPORTATION OR TRANSFER OF CIVILIANS
graphic motivations that are not (apparently) connected with the conflict (the
removal of civilians from areas rich in minerals or oil could be an example)
[Chetail, p. 1206].
As for paragraph (2), the provision prohibits the act of compelling civilians
to leave their own territory for reasons connected with the conflict. Although
the icrc Commentary suggests that the expression “their own territory” has
to be understood as referring to the territory under the control of belligerents,
the latter interpretation appears redundant in view of the protection already
enshrined in paragraph (1). Accordingly, the provision would better serve its
purpose if considered as relating to the territory of the State [Chetail, p. 1208].
ihrl has considerably integrated and reinforced the protection of persons
from being unlawfully displaced [arts. 12–13 iccpr; art. 20–22 Arab Charter on
Human Rights; art. 22 achr; arts. 2–4 Protocol 4 echr; art. 12 achpr]. The
same holds true for international refugee law [arts. 26, 32–33 Refugee Conven-
tion; see: Refugee Law; Non-Refoulement].
Deportation or transfer of civilians are also included among the grave
breaches of the GCs [art. 147 gciv; art. 85(4) api; see: Grave Breaches] and
they have been defined as war crimes and crimes against humanity under in-
ternational criminal law [arts. 7(1)(d), 8(2)(a)(vii), 8(2)(b)(viii), 8(2)(e)(viii)
icc Statute; arts. 2(g), 5(d) icty Statute; art. 3(d) ictr Statute; art. 2(d) scsl;
arts. 13(1)(d), 14(1)(a)(vii), 14(1)(b)(viii) Law on the Specialist Chambers and
Specialist Prosecutor’s Office]. In this respect, it is worth mentioning that de-
portation, as crime against humanity, has been the subject of an unprecedent-
ed request filed by the ICC Chief Prosecutor under Article 19(3) ICC Statute. In
her motion of 9 April 2018, the Prosecutor, focusing on the cross-border nature
of deportation, has asked the Pre-Trial Chamber to rule on whether the Court
has jurisdiction "over the alleged deportation of the Rohingya people from
Myanmar to Bangladesh" [Prosecution's Request for a Ruling on Jurisdiction
under Article 19(3) of the Statute, ICC, Office of the Prosecutor, para. 1]. The is-
sue is of utmost importance, as it revolves around the fundamental question of
whether the ICC may exercise territorial jurisdiction over actions committed
by a non-State party to the Rome Statute - Myanmar - and carried over onto the
territory of a State Party - Bangladesh.
Lastly, it should be noted that forced displacement is not necessar-
ily a crime under international law. Indeed, in both international and non-
international armed conflicts, State practice establishes an exception to the
prohibition of displacement, in cases where “the security of the civilians
involved or imperative military reasons” require the total or partial evacua-
tion of a given area [rule 129 icrc Customary ihl Study]. This exception is
contained in Article 49(2) gciv and Article 17(1) apii. It is also provided for
Deprivation of Liberty 285
in numerous military manuals, as well as in the legislation of many States. In

such circumstances, evacuation must be temporary and must be carried out
in such a manner as to ensure the return of protected persons as soon as the
situation allows [see: Evacuation]. This exception, however, does not apply to
Article 49(6) gciv [see: Transfer by the Occupying Power of its Own Popula-
tion], as the rule contained therein is couched in strict terms and admits no
derogations.
Federica Pira – the views expressed are those of the author alone and do not
Bibliography
V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta, M.
Sassòli, The 1949 Geneva Conventions: A Commentary (2015).
M. Jacques, Armed Conflict and Displacement – The Protection of Refugees and
Displaced Persons under International Humanitarian Law (2012).
Deprivation of Liberty. Under customary ihl, arbitrary deprivation of liberty

is prohibited [rule 99 icrc Customary ihl Study]. In general terms, this means
that a person may only be deprived of his or her liberty pursuant to a legal basis
to do so and by application of such basis in a non-arbitrary manner. Determin-
ing the authority to deprive persons of their liberty in armed conflict requires
clear distinctions to be made between international versus non-international
armed conflicts, as well as between combatants and civilians [see: Interna-
tional Armed Conflict; Non-International Armed Conflict; Protected Per-
sons; Combatants; Civilians].
Deprivation of liberty in international armed conflict is regulated by gciii,
gciv, and api. gciii authorizes internment of prisoners of war until the
end of active hostilities (unless their earlier release is imperative on medi-
cal grounds) [arts. 21(1), 109(1), 110, 118 gciii; see: Prisoners of War; Release].
gciv, on the other hand, regulates (security) detention of protected civilians,
through internment or assigned residence [see: Internment; Assigned Resi-
dence]. In this respect, it should be noted that the language adopted by gciv
seems to differentiate between internment occurring in the territory of a party
to the conflict – permissible “only if the security of the detaining power makes
it absolutely necessary” [art. 42(1) gciv], and internment enforced in occu-
pied territory – admissible only “for imperative reasons of security” [art. 78(1)
gciv]. Notwithstanding the difference in wording, the provisions establish
two common parameters that have to be present in order to justify recourse
to internment: first, the existence of a threat to the security of the detaining
286 Deprivation of Liberty
power, second, the ineffectiveness of any other, less restrictive, measure

[L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016),
p. 42].
A comparison of the texts of gciii and gciv reveals that both prisoners of
war and civilians are deprived of their liberty on the same basis, that is for se-
curity reasons. However, the difference between these internment regimes re-
volves around the concept of individual threat, which “must be established on
a case-by-case basis” in relation to civilians (threat-based internment), but, in
respect of combatants, such threat “is assumed to exist by virtue of their status,
given that they may re-join hostilities if released” (status-based internment)
[Hill-Cawthorne, p. 49]. This difference is reflected in the rights assigned to
these categories. Civilian internees have the right to have their internment
reviewed initially and periodically by “an appropriate court or administra-
tive board” (or by a “competent body”, in occupied territory) [arts. 43(1), 78(2)
gciv] and the right to be released as soon as the reasons necessitating intern-
ment no longer exist or, at the latest, after the close of hostilities [arts. 132(1),
133(1) gciv]. Yet, prisoners of war do not enjoy such rights, considering that
internment is presumed necessary for the entire duration of active hostilities
[arts. 21(1), 118 gciii]. This legal framework is completed by api, which pro-
vides certain guarantees applicable to all persons deprived of their liberty [art.
75 api; see: Fundamental Guarantees].
Furthermore, the question of deprivation of liberty in international armed
conflict may also touch on the relationship between ihl and ihrl [see: In-
ternational Human Rights Law]. While the precise interplay between these
two branches of law remains unsettled [K. Dörmann, ‘Detention in Non-
International Armed Conflicts’, 88 International Law Studies, p. 348; see
also: Hill-Cawthorne, pp. 147, 183], it is generally accepted that ihrl (absent
derogation) continues to apply in international (and non-international)
armed conflict alongside ihl, including extraterritorially. In this regard, the
ECtHR, by relying on Articles 31(3)(b) and (c) vclt, read an implied ground
for deprivation of liberty into Article 5 echr derived from gciii and gciv
[Judgment, Hassan v. UK, ECtHR, Grand Chamber, paras. 96–107]. In this
manner, it provided, in comparison with the lex specialis maxim, a more so-
phisticated approach to the interrelationship between ihl and ihrl, which
must be assessed on a case-by-case basis [L. Hill-Cawthorne, ‘The Grand
Chamber Judgment in Hassan v. UK’, ejil: Talk! (2014)]. It remains doubtful
whether the same approach applies in relation to non-international armed
conflict [A. Clapham, Detention by Armed Groups under International Law,
93 International Law Studies (2017), pp. 7–8].
Deprivation of Liberty 287
Whilst the law is relatively clear in relation to deprivation of liberty in inter-

national armed conflict, it remains a matter of controversy in non-international
armed conflict.
On the one hand, it has been contended that a legal basis for the deprivation
of liberty may be distinguished in the law of non-international armed conflict.
In this regard, it has been primarily advanced that, although “domestic law, in-
formed by the State’s human rights obligations, and ihl, constitutes the legal
framework” for deprivation of liberty in a traditional non-international armed
conflict (that is, the conflict occurring in the territory of a State between govern-
ment armed forces and one or more non-State armed groups), ihl provides an
implicit legal basis for deprivation of liberty with regard to a non-international
armed conflict with an extraterritorial element [icrc, Internment in Armed
Conflict: Basic Rules and Challenges – Opinion Paper (2014), p. 7]. This posi-
tion is, more specifically, based on the propositions that “internment is a form
of deprivation of liberty which is a common occurrence in armed conflict, not
prohibited by Common Article 3, and that Additional Protocol ii […] refers ex-
plicitly to internment” [icrc, p. 7]. The reason for the distinction between the
legal frameworks applicable to these types of non-international armed con-
flict could be that “States have traditionally relied on their own law to justify
detention” [Clapham, p. 6]. In addition, it has been argued, more generally,
that a legal basis for deprivation of liberty in non-international armed conflict
arises from an analogy with the law of international armed conflict. Thus, “ihl
is uniformly less restrictive in internal armed conflicts than in international
armed conflicts” and, hence, “if ihl permits states to detain civilians in the”
latter domain, ihl surely permits states to pursue those actions in the” former
domain [R. Goodman, ‘The Detention of Civilians in Armed Conflict’, 103(1)
ajil (2009), p. 50].
On the other hand, it is claimed that ihl does not impliedly authorise
deprivation of liberty in non-international armed conflict. This viewpoint is
mainly based on the position that, “if the GCs and their APs had intended
to provide a power to intern in […] [non-international armed conflict], such
authority would have been expressly provided” [International Commission of
Jurists, Legal Commentary on the Right to Challenge the Lawfulness of Deten-
tion in Armed Conflict (2015), p. 18; see also: Judgment, Serdar Mohammed v.
Ministry of Defence, The High Court of Justice Queen’s Bench Division, ewhc
1369 (QB) (2014), para. 242]. Accordingly, the only purpose of Common Article
3 GCs and apii is “to guarantee a minimum level of humanitarian treatment
for people who are in fact detained” in such situations [International Commis-
sion of Jurists, p. 17; Serdar Mohammed, para. 243]. However, the proponents
288 Deprivation of Liberty, Treatment
of this viewpoint do not assert that deprivation of liberty is not permissible in

non-international armed conflict, but that, as opposed to ihl, the authorisa-
tion to do so must be found either in domestic law or in other branches of
international law [L. Hill-Cawthorne, D. Akande, ‘Locating the Legal Basis for
Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari’,
ejil: Talk! (2014)].
The controversy surrounding the legal basis for deprivation of liberty in
non-international armed conflict cannot be solved by customary ihl. The
icrc has confirmed that the prohibition of arbitrary deprivation of liberty in
non-international armed conflict is established by State practice in the form
of military manuals and national legislation, as well as on the basis of ihrl
[rule 99 icrc Customary ihl Study; see also: rule 128(c) icrc Customary ihl
Study]. However, as observed by some, beyond this basic prohibition, little
more may be confidently claimed [Hill-Cawthorne, p. 98].
Besides the legal basis for deprivation of liberty, the question of whether ihl
allows armed groups to deprive persons of their liberty in non-international
armed conflict is mired in controversy too [see: Armed Groups]. It may, on
the one hand, be contended that depriving armed groups of such an entitle-
ment runs counter to the idea of belligerent equality [Clapham, pp. 2–3; see
also: 2016 icrc Commentary gci, para. 692; see: Belligerents, Equality of]. It
has, on the other hand, been noted that authorising deprivation of liberty by
dissident and rebel armed groups would be contrary to the intention of States
[Serdar Mohammed, para. 245].
Alex Conte, Federica Pira – the views expressed are those of the authors alone
and do not necessarily reflect the views of the International Commission of Jurists
or any other institution the authors are affiliated with
Bibliography
cicr, Proceedings of the Bruges Colloquium – Detention in Armed Conflict (2014).
L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016).
Deprivation of Liberty, Treatment. ihl regulates the treatment that should

be accorded to detainees, whether prisoners of war or civilians [see: Prisoners
of War; Civilians], and whether they are interned or detained for purposes of
penal prosecution [see: Deprivation of Liberty; Internment; Assigned Resi-
dence; Penal Prosecution].
First, ihl creates a set of rules meant to ensure respect for and protection of
the physical and mental health of detainees. In international armed conflict,
these include humane treatment [art. 13 gciii; art. 27 gciv], respect for the
Deprivation of Liberty, Treatment 289
honour of detainees [art. 14 gciii; art. 27 gciv], maintenance of detainees

and medical attention [art. 15 gciii; arts. 76, 81 gciv], and the prohibition of
torture or other forms of coercion during interrogations [art. 17 gciii; arts. 31,
32 gciv; art. 75(2)(a)(ii) api]. In non-international armed conflict, Common
Article 3 GCs also provides for humane treatment without any adverse distinc-
tion [see: Common Article 3]. This includes the prohibition of “violence to life
and person, in particular murder of all kinds, mutilation, cruel treatment and
torture; taking of hostages; outrages upon personal dignity, in particular, hu-
miliating and degrading treatment” [see: Wilful Killing and Murder; Physical
Mutilation; Inhuman Treatment; Torture; Hostages; Outrage upon Personal
Dignity]. Those prohibitions apply to all persons taking no active part in the
hostilities, and hence also to persons deprived of their liberty [see: Direct Par-
ticipation in Hostilities]. apii also reinforces the obligation of humane treat-
ment [art. 4 apii] and contains additional safeguards specifically designed to
protect detainees, particularly their physical and mental health [art. 5(2) apii].
In general, customary ihl has harmonized the protection: the prohibition of
adverse distinction in treatment, murder, torture, cruel or inhuman treatment
and outrages upon personal dignity, corporal punishment, mutilation, medical
or scientific experiments, rape and other forms of sexual violence, or slavery
are considered to be customary rules applicable in international armed con-
flict and non-international armed conflict [rules 88–94 icrc Customary ihl
Study].
Additional rules exist to protect more specifically those subjected to in-
ternment: while persons facing prosecution are usually protected under the
domestic law of the detaining State, it was considered necessary for ihl to
ensure a high degree of protection during internment, a form of deprivation of
liberty not necessarily envisaged in domestic legal systems. As a consequence,
detailed rules exist for prisoners of war and civilian internees in international
armed conflict, in order to ensure adequate material conditions of internment.
For instance, as far as the place of internment is concerned, prisoners of war
may only be detained on land, in premises “affording every guarantee of hy-
giene and healthfulness” [art. 22 gciii], and away from the combat zone [art.
23 gciii]. Similar provisions also exist for civilian internees [arts. 83, 85 gciv].
Quarters housing prisoners of war shall present conditions “as favourable as
those for the forces of the Detaining Power who are billeted in the same area”
[art. 25 gciii]. Internees and prisoners of war shall not be accommodated to-
gether, and shall be separated also from persons detained for other reasons
[art. 84 gciv]. Other rules provide for adequate food and clothing [arts. 26,
27 gciii; arts. 89, 90 gciv] and for adequate hygiene and medical attention
[Part iii, Section ii, Chapter iii gciii; Part iii, Section iv, Chapter iv gciv].
290 DEPRIVATION OF LIBERTY, TREATMENT
While prisoners of war may be employed by the detaining power, their labour
is strictly regulated [Part iii, Section iii gciii]. Civilian internees, however,
may only be employed if they so desire [art. 95 gciv]. Lastly, disciplinary mea-
sures are strictly regulated by ihl for both prisoners of war and civilian intern-
ees [arts. 89–98 gciii; arts. 117–126 gciv].
Provisions similar to those applicable in international armed conflict can
be found, although with a lesser degree of detail, in non-international armed
conflict. For instance, detainees shall “to the same extent as the local civilian
population, be provided with food and drinking water and be afforded safe-
guards as regards health and hygiene and protection against the rigours of the
climate and the dangers of the armed conflict” [art. 5(1)(b) apii]. Furthermore,
detainees in non-international armed conflict shall not be kept close to the
combat zone [art. 5(2)(c) apii]. It has to be noted that these provisions apply
to all persons whose liberty has been restricted, whether interned or detained
[art. 5(1) apii].
In the case of both prisoners of war and protected civilians, gciii and gciv
each consider that “wilful killing, torture or inhuman treatment, including bio-
logical experiments, wilfully causing great suffering or serious injury to body
or health” are grave breaches [art. 130 gciii; art. 147 gciv; see: Grave Breaches;
Wilful Killing and Murder, Torture; Inhuman Treatment; Medical or Scien-
tific Experiments; Wilfully Causing Great Suffering or Serious Injury to Body
or Health].
In both international and non-international armed conflict, ihl contains
additional provisions specifically aimed at protecting those considered as
more vulnerable. This is the case for the sick and wounded, which shall be
respected, protected and cared for [art. 14 gci; art. 16 gcii; arts. 30, 47 gciii;
arts. 16, 91 gciv; common art. 3 GCs; art. 7 apii; see: Wounded and Sick].
Women, and in particular pregnant women and mothers of young children,
are also afforded special protection [arts. 89, 98 gciv; see: Women]. When de-
tained, women shall be accommodated in separate quarters and provided with
separate conveniences [arts. 25, 29 gciii; arts. 76, 85, 124 gciv; art. 75(5) api;
art. 5(2)(a) apii]. This is not applicable when interning or detaining families,
which shall be lodged together [art. 82 gciv; arts. 75(5), 77(4) api; art. 5(2)
(a) apii]. Children shall also receive all the attention and care they need [see:
Children]. They must receive an appropriate education and, when under 15
years of age, cannot be recruited in the armed forces of a State or an armed
group or participate in hostilities [see: Child Soldiers]. Those provisions ap-
ply to all children, including those that may have been captured or are being
detained for any other reason [art. 4 apii].
Derogation 291
Detainees shall also benefit from certain communication rights. They shall
be allowed to send and receive correspondence [art. 71 gciii; arts. 25, 107 gciv;
rule 125 icrc Customary ihl Study]. Even when under disciplinary measures,
prisoners of war and civilian internees shall retain such right to correspond
with their relatives [art. 98 gciii; art. 125 gciv].
Finally, it should be noted that some derogations do exist, but only in very
clear and delineated circumstances [see: Derogation]. In the territory of a par-
ty to an international armed conflict, protected persons definitely suspected of
or engaged in activities hostile to the security of the State may be deprived of
some rights and privileges, when they would be prejudicial to the security of
such State. In occupied territories, spies and saboteurs [see: Spies; Saboteurs],
as well as other persons definitely suspected of hostile activity, forfeit their
rights to communication when detained.
Bibliography
icrc, Strengthening International Humanitarian Law Protecting Persons Deprived of
Liberty – Concluding Report (2015).
N. Melzer, International Humanitarian Law: A Comprehensive Introduction (2016), pp.
195–205.
Derogation. Contrary to the derogation clause provided for in the main hu-
man rights treaties [see: International Human Rights Law], there is no general
clause in ihl that enables parties to the conflict, in case of emergency situa-
tions threatening their security and existence, to derogate to a certain extent
from rights that civilians and combatants enjoy under the GCs and APs. The
primary reason is that ihl has in itself been conceived as the law specifically
applicable in situations of war, which is the most paramount threat to the very
existence of a State.
A specific derogation clause is however found in Article 5 gciv, which con-
cerns most notably the rights of communication of a captured spy [see: Spies],
saboteur [see: Saboteurs] or any other protected person [see: Protected Per-
sons] detained because he or she is considered a danger for the security of the
State.
Besides the preliminary discussions regarding gciv, the issue of derogation
arose after the adoption by the Stockholm Conference (1948) of a definition
of protected persons covering persons committing hostile acts without being
292 DEROGATION
members of regular armed forces. Some rights afforded to them were deemed
inadequate to the nature of espionage, in particular the rights to communi-
cate with the outside world. Nevertheless, the main aim of the introduction
of Article 5 in gciv might have been to set limits to derogations rather than to
permit them.
Article 5 gciv allows derogations with regard to someone definitely sus-
pected or engaged in hostile acts, who is a protected person within the meaning
of Article 4 gciv [see: Civilians]. Prisoners of war are not protected persons
under gciv, because they are protected by gciii [see: Prisoners of War]. Thus,
even though spies caught in the act by the enemy do not have the right to pris-
oner of war status [see: Protected Persons; Spies], Article 5 gciv makes clear
that spies who satisfy the nationality criterion of Article 4 gciv are protected
by gciv. The same applies to saboteurs and persons engaged in acts hostile
to the State’s security, who do not benefit from prisoner of war status insofar
as they act clandestinely without wearing an uniform. In this regard, Article 5
gciv confirms that unlawful combatants do not fall outside the scope of gciv
[see: Combatants]. This is, indeed, the main function ascribed to this provi-
sion nowadays.
According to Article 5 gciv, derogations are to be decided on an individual
basis and cannot be based on a mere suspicion of a hostile activity or an “in-
dividual’s political attitude towards the State” [Judgment, Delalić et al., icty,
Trial Chamber, para. 567]. Moreover, derogations are limited in their scope to
the rights of communication in occupied territory (for States parties to api, Ar-
ticle 45(3) api even restricts the derogations from rights of communication to
detained spies only) and, in the territory of a party to the conflict, to the rights
that would, if exercised, be prejudicial to the security of the State. Derogations
are also limited in their extent to what absolute military necessity requires in
occupied territory and, in the territory of a party to the conflict, to what is nec-
essary and proportionate. The criteria for derogations are stricter in occupied
territory, because of the understanding that the population would do whatever
is in its power to embarrass the invading forces [see: Occupation].
The principles of necessity and proportionality imply that derogations have
to be terminated as soon as the danger ceases to exist [art. 5(3) gciv]. Further-
more, with regard to derogations in the home territory of a party to the conflict,
only the rights that could be effectively (ab)used by the detained person, in a
way prejudicial to the State security, can be derogated from. As in occupied
territory, these are mostly the rights to communicate with the outside world to
prevent sensitive information on military infrastructure to be conveyed to the
enemy. In this regard, it is questionable whether a civilian having unlawfully
taken up arms should be deprived of her or his rights of communication when
Deserters 293
detained in the home territory of a party to the conflict [see: Direct Participa-
tion in Hostilities]. Indeed, in the latter situation, nothing would seem to be
prejudicial to the security of the State if the person receives visits and corre-
spondence (in occupied territory, this person would actually not be deprived
of her or his rights of communication under Article 45(3) api).
Derogations are not meant as a form of punishment. For this reason, Article
5(3) gciv provides that no derogation may affect the humane treatment that
shall be given to the protected persons in the hands of a party to the conflict
and, in case of trial (for espionage, sabotage, terrorism, or unlawful participa-
tion to the hostilities), the right to a fair and regular trial [see: Fair Trial; Inhu-
man Treatment]. For example, the right to be assisted by counsel implies that
counsel must be able to visit freely the accused [art. 72 gciv] and, therefore,
such visits cannot be considered as a right of communication that could be
derogated from pursuant to Article 5 gciv.
There is no derogation clause equivalent to Article 5 gciv in ihl applicable
to non-international armed conflicts. Nevertheless, rights of communication
of persons deprived of liberty in relation to a non-international armed conflict
can be limited (but not derogated from) if deemed necessary [art. 5(2) apii; see
Deprivation of Liberty].
alone and do not necessarily reflect the views of any institution the author is af-
filiated with
Bibliography
B. Baxter, ‘So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs’, 28
British Year Book of International Law (1951).
R. Gehring, ‘Loss of Civilian Protections under the Fourth Geneva Convention and Pro-
tocol i’, 90 Mil. L. Rev. (1980).
A.-L. Graf-Brugère, ‘Chapter 54. The Derogation Clause’, in A. Clapham, P. Gaeta, M.
Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015).
Deserters. Desertion is a notion that is primarily regulated by national law

and it does not feature directly in international law. It is generally defined as
absence of leave of a person in military service, who thereby intends to remain
absent permanently or for a period of active service.
In the U.S., for example, desertion occurs once a member of the military
either: (1) remains absent from his unit, organisation, or place of duty without
the authorisation to do so and with the intent to remain away permanently; (2)
quits his unit, organisation, or place of duty with the intent to avoid hazardous
294 DESERTERS
duty or to shirk important service; or (3) without being regularly separated

from a branch of U.S. military, joins another branch or enters into a foreign
armed service [art. 85(a) Uniform Code of Military Justice]. This definition is
similar to those found in other military criminal codes, although some require
a minimum period of unauthorised absence [art. 100 Wetboek van Militair
Strafrecht (The Netherlands); art. 8 British Armed Forces Act 2006 (U.K.); art.
L321-2 Code de Justice Militaire (France)]. Desertion should be distinguished
from the lesser and separate offence of absence without leave, the latter not
requiring an intent to permanently leave an armed force or to be absent for a
minimum period of time [art. 86 Uniform Code of Military Justice (U.S.); art.
9 British Armed Forces Act 2006 (U.K.); art. 15 Wehrstrafgesetz (Germany)].
Desertion can be punished by a fine, but usually carries a sentence of impris-
onment, which is higher if committed during wartime or abroad. It may also
incur a death penalty.
In the context of multinational or peacekeeping forces [see: Peacekeeping],
military discipline and duties of individual members of the armed forces re-
main within the remit of the national force taking part in such an operation
and the national rules on desertion, thus, continue to apply too. However, de-
sertion from a non-State armed group is not possible in law as only States can
require conscription.
Desertion becomes relevant for ihl only in specific situations. In case of
desertion to enemy forces, it has been argued that the status of the desert-
er depends on the circumstances of the desertion. A deserter who falls into
the power of the enemy must be granted prisoner of war status under gciii
[H. Niebergall-Lackner, Status and Treatment of Deserters in International
Armed Conflicts (2016), pp. 141–143, 146–147; see: Prisoners of War]. Where a
person places himself into the power of the enemy, the condition stipulated
in Article 4 gciii and Article 44(1) api of “having fallen into the power of the
enemy” is not fulfilled and the deserter should be afforded protection under
gciv [Niebergall-Lackner, pp. 138–141, 146–147].
Since the GCs and APs are silent on the question of desertion, there appears
to be insufficient clarity in the law. However, it is certainly acceptable that each
case of desertion should be analysed with regard to circumstances in which it
has taken place and that, in any event, a deserter under the authority of the
enemy power should be afforded either prisoner of war status under gciii or
the status of a protected person under gciv [see: Protected Persons].
Furthermore, the unhcr has explained that, with regard to desertion to a
third country, a person who refuses to undertake military service, because of a
well-founded fear of individual persecution, may be eligible for refugee status
in a number of overlapping situations: (1) conscientious objection, depending
Direct Participation in Hostilities 295
also on the availability of alternative military service in the relevant State; (2)
objection based on the legality of an armed conflict or on the means and meth-
ods of warfare involving a risk of a deserter committing an international crime;
(3) harsh conditions of State military service amounting to cruel treatment or
torture; and (4) unlawful child recruitment. It should be noted that desertion
due to dislike of military service or fear of combat does not afford such a right
[unhcr, Guidelines on International Protection No. 10].
Bibliography
E. Afsah, ‘Deserters’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public Interna-
tional Law (2012).
H. Niebergall-Lackner, Status and Treatment of Deserters in International Armed Con-
flicts (2016).
Detention; see: Deprivation of Liberty
Direct Participation in Hostilities. In ihl, the notion of direct participation

in hostilities refers to conduct which, if carried out by civilians, suspends their
protection against direct attack and the dangers arising from military opera-
tions [art. 51(3) api; art. 13(3) apii]. Most notably, for such time as they directly
participate in hostilities, civilians may lawfully be attacked as if they were com-
batants. Derived from Common Article 3 GCs, the notion of taking a direct or
active part in hostilities is found in many provisions of ihl. However, treaty
ihl does not provide a definition of direct participation in hostilities, nor can
a clear interpretation of the notion be derived from State practice or interna-
tional jurisprudence.
1. Who is a Civilian For the Purposes of the Principle of Distinction?

It is important to distinguish members of State armed forces or of organized
armed groups, whose continuous function it is to conduct hostilities on be-
half of a belligerent party, from civilians, who do not directly participate in
hostilities, or who do so on a merely spontaneous, sporadic, or unorganized
basis. For the purposes of the principle of distinction, only the latter qualify as
civilians [see: Distinction].
Treaty law governing international armed conflict defines civilians negative-
ly as all persons who are neither members of the armed forces of a party to
296 Direct Participation in Hostilities
the conflict, nor participants in a levée en masse [art. 50(1) api; see: Civilians;
Combatants]. The armed forces of a party to the conflict comprise all orga-
nized armed forces, groups and units that operate de facto under a command
responsible to that party, regardless of their denomination in domestic law
[art. 43(1) api; see: Armed Forces]. Even members of irregular armed forces,
such as organized resistance movements and other militia or volunteer corps,
whose conduct is attributable to a party to a conflict, are considered part of
its armed forces. Participants in a levée en masse are the inhabitants of a non-
occupied territory who, on the approach of the enemy, spontaneously take up
arms to resist the invading forces without having had time to form themselves
into regular armed units, provided they carry arms openly and respect ihl.
According to a longstanding rule of customary and treaty ihl, participants in
a levée en masse are entitled to combatant privilege and prisoner of war status
[art. 2 1907 Hague Regulations; art. 4(6) gciii; art. 50(1) api]. They are the only
armed actors who are not regarded as civilians although, by definition, they
operate spontaneously and lack sufficient organization and command to qual-
ify as members of the armed forces. All other persons who directly participate
in hostilities on a merely spontaneous, sporadic or unorganized basis must be
regarded as civilians.
Treaty ihl governing non-international armed conflict uses the terms civil-
ian, armed forces, and organized armed group without defining them [see:
Civilians]. It is generally recognised, however, that members of State armed
forces do not qualify as civilians, and the wording and logic of Common Article
3 GCs and apii suggest that the same applies to members of organized armed
groups. Organized armed groups constitute the armed forces of a non-State
party to the conflict and must not be confused with the belligerent party it-
self (e.g. an insurgency as a whole, including its political wing) or with other
supportive segments of the civilian population. Civilians may support an in-
surgency in many different ways and may even take a direct part in hostilities
on a spontaneous, sporadic, or unorganized basis. However, for the purposes
of the principle of distinction, they cannot be regarded as members of an or-
ganized armed group, unless they assume a continuous combat function (i.e.
a continuous function involving their direct participation in hostilities) for a
non-State party to the conflict. Continuous combat function does not imply
entitlement to combatant privilege, prisoner of war status, or any other form
of immunity from domestic prosecution for lawful acts of war [see: Prisoners
of War]. Rather, it makes a strictly functional distinction between members
of the organized fighting forces and the civilian population. In sum, in non-
international armed conflict, civilians are all persons who are neither mem-
bers of State armed forces, nor members of organized armed groups.
2. What Conduct Amounts to Direct Participation in Hostilities?

Under ihl, civilians are entitled to protection against direct attack unless and
for such time as they directly participate in hostilities [see: Attacks against
Civilians and Persons Hors de Combat]. While the concept of hostilities refers
to the collective resort by parties to an armed conflict to means and methods
of warfare [art. 35(1) api; art. 22 Hague Regulations], participation in hostilities
refers to the individual involvement of a person in these hostilities [arts. 43(2),
45(1), (3), 51(3), 67(1)(e) api; art. 13(3) apii]. Depending on the quality and
degree of such involvement, individual participation in hostilities may be de-
scribed as direct or indirect. While direct participation refers to specific hostile
acts carried out as part of the conduct of hostilities between belligerent parties
and leads to loss of protection against direct attack, indirect participation may
contribute to the general war effort, but does not directly harm the enemy and,
therefore, does not entail loss of protection against direct attacks.
According to the icrc’s Interpretive Guidance, any act amounting to direct
participation in hostilities must meet three cumulative requirements:
a) Threshold of harm. For a specific act to qualify as direct participation in
hostilities, the harm likely to result from it must attain a certain threshold. This
threshold is reached, most notably, whenever the military operations or capac-
ity of a party to an armed conflict are adversely affected, for example through
the use of weapons against the armed forces, or by impeding their military
operations, deployments, or supplies. Where no military harm is caused, the
required threshold of harm can also be reached by inflicting death, injury, or
destruction on persons or objects protected against direct attack. For exam-
ple, the shelling or bombardment of civilian residential areas, sniping against
civilians, or armed raids against refugee camps may constitute part of the hos-
tilities, even though they would not necessarily cause direct military harm
to the enemy. Direct participation in hostilities does not require the actual
materialization of harm, but merely the objective likelihood that the conduct
in question will result in such harm. Therefore, the relevant threshold determi-
nation must be based on likely harm, that is to say, harm which may reasonably
be expected to result from an act in the prevailing circumstances.
b) Direct causation. Not every conduct likely to cause the required threshold
of harm necessarily amounts to direct participation in hostilities. Throughout
history, the civilian population has always contributed to the general war effort,
whether through the production and supply of weapons, equipment, food, and
shelter, or through financial, administrative, and political support. In order to
qualify as direct rather than indirect participation in hostilities, however, there
must be a direct causal relation between the act in question and the resulting
harm. In this context, direct causation should be interpreted to mean that the
298 Direct Participation in Hostilities
harm is brought about in one causal step. Accordingly, acts that merely build
or maintain the capacity of a party to harm its adversary in unspecified future
operations do not amount to direct participation in hostilities, even if they are
connected to the resulting harm through an uninterrupted chain of events and
may even be indispensable to its causation, such as the production of weapons
and ammunition or general recruiting and training of personnel. The notion
of direct participation in hostilities can also include acts which cause harm
only in conjunction with other acts, namely where the act in question is an
integral part of a coordinated tactical operation that directly causes the re-
quired threshold of harm. In addition, measures preparatory to the execution
of a specific act of direct participation in hostilities, as well as the deployment
to and the return from the location of its execution, constitute an integral part
of that act.
c) Belligerent nexus. In order to amount to direct participation in hostilities,
the conduct of a civilian must not only be objectively likely to inflict harm
meeting the first two criteria, but it must also be specifically designed to do
so in support of a party to an armed conflict and to the detriment of another
(belligerent nexus). Belligerent nexus relates to the objective design of an act
as part of the hostilities and does not necessarily have to reflect the subjective
intent of every participating individual. Armed violence that is not designed
to harm a belligerent party, or that is not designed to do so in support of an-
other party, cannot amount to participation in hostilities taking place between
these parties. For example, as a general rule, civilian violence remains of non-
belligerent nature if it is used: (a) in exercise of authority over persons in the
power of a belligerent party (e.g. the use of force against prisoners); (b) as part
of civil unrest against such authority (e.g. violent demonstrations or riots); (c)
in individual self-defence against violence prohibited by ihl (e.g. civilians de-
fending themselves against marauding soldiers); (d) during inter-civilian vio-
lence (e.g. uncontrolled looting due to breakdown of law and order); or (e) for
reasons otherwise unrelated to the conduct of hostilities (e.g. murder, arson,
or other violent crimes carried out for non-belligerent motives). Where armed
violence lacks belligerent nexus, it remains an issue of law and order, even if
it occurs in the wider context of an armed conflict. Therefore, any resort to
force in response to such violence must comply with international standards
governing law enforcement operations [see: Law Enforcement; International
Human Rights Law].
3. What Modalities Govern the Loss of Protection against Direct Attack?

Once a civilian has lost protection against direct attack, questions arise as to
the modalities governing the loss of protection against direct attack.
a) Temporal scope of loss of protection. Civilians lose protection against direct

attack for the duration of each specific act amounting to direct participation
in hostilities. Where preparatory measures and geographical deployments or
withdrawals constitute an integral part of a specific hostile act, they extend the
beginning and end of such act beyond the phase of its immediate execution.
This temporary loss of protection, which is designed to respond to spontane-
ous, sporadic, or unorganized hostile acts carried out by civilians, must be dis-
tinguished from the continuous loss of protection entailed by membership in
State armed forces or organized armed groups belonging to the belligerent par-
ties. Members of such forces or groups lose protection for as long as their mem-
bership lasts, regardless of whether membership must be determined based on
formal (regular armed forces) or functional (organized armed groups) criteria.
b) Precautions and presumptions in situations of doubt. In practice, civilian
direct participation in hostilities is likely to entail significant confusion and
uncertainty in the implementation of the principle of distinction. In order to
avoid erroneous or arbitrary targeting, all feasible precautions must be taken
in determining whether a person is a civilian and, if so, whether he or she is
directly participating in hostilities. As lawful attacks always require positive
identification of a legitimate target, persons must be presumed to be protected
in case of doubt.
c) Restraints on the use of force against legitimate military targets. Loss of
protection against direct attack does not mean that the persons concerned
fall outside the protection of the law altogether. It is a fundamental principle
of ihl that “the right of belligerents to adopt means of injuring the enemy is
not unlimited” [art. 22 1907 Hague Regulations; art. 35 api]. Indeed, even at-
tacks against legitimate military targets are subject to legal constraints. Most
importantly, any military operation must comply with the provisions of ihl
governing the conduct of hostilities, which prohibit or restrict certain means
and methods of warfare [see: Hostilities, Conduct of]. Moreover, in conjunc-
tion, considerations of military necessity and humanity require that no more
death, injury, or destruction be caused than is actually necessary for the ac-
complishment of a legitimate military purpose in the prevailing circumstances
[see: Humanity; Military Necessity]. Thus, while operating forces can hardly
be required to take additional risks for themselves or the civilian population
in order to capture an armed adversary alive, it would defy basic notions of
humanity to kill an adversary or to refrain from giving him or her an opportu-
nity to surrender, where the circumstances are such that there manifestly is no
necessity for the use of lethal force.
d) Consequences of regaining protection against direct attack. ihl nei-
ther prohibits nor privileges civilian direct participation in hostilities. In
300 Disability
the absence of such prohibition, civilian direct participation in hostilities

does not, in and of itself, constitute a war crime. However, in the absence
of combatant privilege as granted to members of State armed forces in in-
ternational armed conflicts, civilians having directly participated in hostili-
ties remain subject to prosecution for any crime under domestic law, which
they may have committed during their participation. Thus, when civilians
cease to directly participate in hostilities, or when members of organized
armed groups belonging to a non-State party to an armed conflict cease to as-
sume their continuous combat function, they regain full civilian protection
against direct attack. This does not rule out prosecution for any crime they
may have committed and, where necessary to secure their arrest, propor-
tionate force may be used against them in accordance with law enforcement
standards.
4. Conclusion
Today, more than ever, renewed efforts must be made to spare the civilian
population from erroneous or arbitrary targeting. To that end, it is of the ut-
most importance to provide belligerents with practice-oriented guidance as
to how to apply the principle of distinction in the challenging circumstances
of contemporary warfare. This requires reliable and convincing responses to
the questions of who is considered a civilian in the first place, what conduct
amounts to direct participation in hostilities, and what modalities govern the
ensuing loss of protection against direct attack. It is to be hoped that the above
considerations, which correspond to the conclusions and recommendations
reflected in the icrc’s Interpretive Guidance, will contribute to ensuring that
those who do not take a direct part in hostilities receive the humanitarian pro-
tection they are entitled to under ihl.
Nils Melzer – the views expressed are those of the author alone and do not nec-
essarily reflect the views of the United Nations or any other institution the author
is or has been affiliated with
Bibliography
icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in Hos-
tilities under International Humanitarian Law (2009).
Forum, Direct Participation in Hostilities, 42(3) N.Y.U. J. Int’l L. & Pol. (2010).
Disability. Persons with disabilities are identified as vulnerable and in need of

special protection in ihl. The GCs and two APs refer to persons with disabili-
ties by means of various, at times derogatory, designations, such as the “infirm”
Disability 301
[art. 17 gciv], “disabled”, persons with “mental disease”, “the blind” [art. 30
gciii], and “wounded and sick”.
The protections afforded to persons with disabilities under ihl mainly fall
under the provisions for the treatment of the wounded and sick [see: Wound-
ed and Sick]. The expression wounded and sick accommodates a wide range
of medical conditions, and should be interpreted broadly [2016 icrc Com-
mentary gci, para. 1342]. It would most certainly include persons with a physi-
cal impairment, such as an amputee. Persons with psychological conditions,
including post-traumatic stress disorder, would also be considered wounded
or sick, provided that these conditions require medical care. However, a large
number of persons with disabilities whose impairment does not require medi-
cal care, such as a person with an intellectual impairment, would not receive
the legal protection of the wounded and sick.
Terminology such as “mental disease”, “infirm” and “blind” adopted in the
GCs and the two APs reflects a medicalised approach to disability, which views
persons with disabilities as abnormal and in need of “fixing”, to reach “normal-
ity” and to be able to participate in society again. Aside from the fact that these
terms ignore the social structures, which are an inherent part of disability, such
as lack of social support for persons with disabilities, they also serve to dehu-
manise persons with disabilities by categorising them solely according to their
impairments, which can lead to stigmatization and disempowerment.
The 2006 UN Convention on the Rights of Persons with Disabilities (crpd)
brought a paradigm shift in how persons with disabilities are viewed, by adopt-
ing a human rights based approach that focuses on the removal of barriers that
hinder the ability of persons with disabilities to enjoy all their human rights on
an equal basis with others. It exhorts all States to “promote, protect and ensure
the full and equal enjoyment of all human rights and fundamental freedoms
by all persons with disabilities, and to promote respect for their inherent dig-
nity” [art. 1 crpd]. The crpd does not attempt to explicitly define disability
as it is an evolving concept [Preamble crpd]. Article 1 crpd states: “[p]ersons
with disabilities include those who have long-term physical, mental, intellec-
tual or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with
others”. The crpd rejects the medical approach and adopts a social model for
understanding disability, which recognizes the interaction between a person’s
condition and environmental factors. According to the social model, lack of
accommodation impedes the individual’s ability to access society on an equal
basis with others and inequality is not due to the impairment, but due to the
failure to eliminate the barriers that are preventing a person with an impair-
ment from accessing society.
302 DISABILITY
The crpd is unusual among the core human rights treaties in that it explicit-
ly invokes ihl alongside ihrl in armed conflict and other humanitarian emer-
gencies. Article 11 crpd requires that States parties “take, in accordance with
their obligations under international law, including ihl and ihrl, all necessary
measures to ensure the protection and safety of persons with disabilities in
situations of risk, including situations of armed conflict, humanitarian emer-
gencies and the occurrence of natural disasters”. This provision, thus, requires
States parties to abide by all their human rights and ihl obligations owed to
persons with disabilities during situations of armed conflict. Where there are
perceived clashes between these bodies of law, they are best resolved by read-
ing ihl through a crpd lens.
Take the treatment of a prisoner of war with a psychosocial disability as an
example [see: Prisoners of War]. gciii states that “[i]solation wards shall, if nec-
essary, be set aside for cases of […] mental disease” [art. 30 gciii]. Aside from the
terminology “mental disease” being derogatory and not in conformity with the
human rights based approach, Article 14 crpd expressly states that “the exis-
tence of a disability shall in no case justify a deprivation of liberty” and prohibits
all discrimination based on disability within places of detention [Guidelines on
Article 14 of the crpd, Committee on the Rights of Person with Disabilities, para.
4]. Separating prisoners of war based on an intellectual or psychosocial disabil-
ity would constitute unlawful discrimination [see: Non-Discrimination]. Fur-
thermore, placing a detainee in isolation owing to his or her mental impairment
has in certain circumstances been found to amount to inhuman and degrading
treatment [Report, Victor Rosario Congo v. Ecuador, IACmHR, paras. 58–59; see:
Inhuman Treatment; Humiliating and Degrading Treatment].
In sum, unsurprisingly considering their time of drafting, the GCs and
APs adopt a paternalistic approach to persons with disabilities. Persons with
disabilities are considered in need of protection and not as rights-holders.
The paternalistic approach has been superseded by the social model under-
standing of disability and the human rights-based approach enshrined in the
crpd.
Alice Priddy – the views expressed are those of the author alone and do not
Bibliography
M. Crock, N. Hart, R. McCallum, ‘War, Law and Disability: Ensuring Equality in Situa-
tions of Crisis’, in D. Mitchell, V. Karr (eds.), Crises, Conflict and Disability: Ensuring
Equality (2014).
J. Lord, ‘Persons with Disabilities in International Humanitarian Law – Paternalism,
Protectionism or Rights’, in H. Gill, C. Schlund-Vials (eds.), Disability, Human Rights
and the Limits of Humanitarianism (2014).
DISCIPLINE 303
Disappearance; see: International Convention for the Protection of All Per-

sons from Enforced Disappearance (2006)
Discipline. The potential for ihl compliance of an armed force is directly cor-
related to the discipline of its members. Discipline is the mechanism by which
State or non-State parties to an armed conflict are able to translate their will
into predictable action by the armed forces under their authority. Whether
or not that will actually reflects ihl compliance is a separate issue. Indeed, a
highly-disciplined armed force may systematically violate ihl if that is the will
of strategic authorities.
Because discipline plays such a pivotal role in legal compliance, the ihl
governing international armed conflict sets out definitions of armed forces
and combatant immunity that are built around the structural requirement of
a disciplinary system. Thus, the armed forces of a party to a conflict “shall be
subject to an internal disciplinary system which, inter alia, shall enforce com-
pliance with the rules of international law applicable in armed conflict” [art.
43(1) api]. State practice has established a similar requirement of organiza-
tion for a non-State entity to even be considered party to a non-international
armed conflict [see: Armed Groups]. At the heart of these existential require-
ments, is the notion that the armed wing of a party to an armed conflict sits
at the critical interface between the treaty and customary law obligations of
the party and their actual respect during the conduct of hostilities. In the ab-
sence of sufficient discipline, a party to armed conflict cannot constrain the
behaviour of its armed component within legal boundaries and ensure that
any violations are swiftly and effectively suppressed.
Armed forces are required by Article 87 api to prevent violations of ihl
from occurring. In practice, this means integrating the law into their opera-
tional practice, as reflected in their policy, doctrine, education, and field train-
ing, as well as the operational decision-making process. Furthermore, sanc-
tions play an essential role in preventing ihl violations. The more visible they
are and the more predictable their application, the more dissuasive they will
be. They also make it possible to effectively punish those who have failed to
obey ihl, thereby giving teeth to the law. They therefore offer the hierarchy a
means of enforcing orders and discipline, and demonstrate the chain of com-
mand’s firmness in defending its fundamental values.
State armed forces’ available sanctions take the form of military justice –
a formal penal system administered through an independent judiciary – and
military discipline, consisting of administrative measures enforced by a direct
superior at the field level. The advantages of disciplinary measures over more
formal justice are twofold: the speed at which they are enforced in the field and
their visibility to the offender’s peers. However, as a rule, such measures are
304 Dissemination
constrained by the lack of certain procedural and judicial guarantees associ-

ated with criminal prosecution [art. 75(3)-(4) api; see: Fair Trial]. Following a
summary disciplinary proceeding, available punishments are accordingly rela-
tively modest: e.g. confinement to barracks, extra duties, or short periods of
incarceration. In contrast, in most systems, a court martial may deliver punish-
ment up to the level of life imprisonment. Both types of punishment are aimed
at specifically deterring the offender, while simultaneously sending a message
of general deterrence to the armed forces writ large regarding the importance
of compliance.
In order to effect a change of behaviour reflecting ihl compliance, a State’s
disciplinary and penal legislation must accurately integrate the sanctions fore-
seen in the GCs and other treaties to which it is party, in addition to applicable
sanctions recognized by customary international law. When serious violations
of ihl are committed, the State is then under an obligation to apply sanctions
within its domestic military or civilian justice systems that are appropriate,
effective, and reflective of the underlying international law – all the while re-
flecting fair trial guarantees.
Non-State armed groups do not generally have access to a formal military
justice system and it is questionable whether such a system, unhinged from
State accountability, may ever meet the procedural and judicial guarantees
required by customary ihl [rule 100 icrc Customary ihl Study; see: Regu-
larly Constituted Courts]. However, the law must similarly be integrated into
the instruments driving their operations and into their disciplinary structures.
This may take the form of a code of conduct containing the essential ihl rules
governing detention and the conduct of hostilities, and giving it the force of an
order. As such, their field disciplinary systems tend to encompass more serious
offences, with consequences for fundamental justice.
Andrew Carswell – the views expressed are those of the author alone and do
not necessarily reflect those of the ICRC
Bibliography
A. Carswell, ‘Converting Treaties into Tactics on Military Operations’, 96(895–896)
irrc (2014).
A.-M. Larosa, ‘Sanctions as a Means of Obtaining Greater Respect for Humanitarian
Law: a Review of their Effectiveness’, 90(870) irrc (2008).
Dissemination. The notion of dissemination refers to measures and efforts

aimed at rendering the content of provisions of ihl known and understood
[see: International Humanitarian Law]. In some contexts, the term promotion
of ihl is used (very often as synonym for dissemination), which sometimes
Dissemination 305
emphasises soliciting the acceptance and application of ihl provisions. Dis-

semination activities encompass both treaty and customary ihl provisions
and extend to existing law and law in formation, while further provisions and
issues which are not, not sufficiently, or not yet regulated might be indicated
and explained.
The starting point for dissemination activities is the recognition that ap-
plication and observance of ihl cannot be expected when its rules are not
known by those who have to apply and observe them. Spreading knowledge
of ihl and awareness of the protection provided by the emblem of the red
cross/red crescent/red crystal is the major object of dissemination activities
[see: Emblem]. On a broader scale, dissemination aims at informing about the
significance and meaning of ihl for domestic and international relations in
the sphere of safety and security. Dissemination measures and activities imply
advocacy for compliance with existing ihl, as well as its implementation [see:
Implementation], enforcement, and further development.
As ihl is legally binding essentially on parties to international and non-in-
ternational armed conflicts, States, members of their armed forces, and civil-
ians directly participating in hostilities are the initial actors and target groups
of dissemination with a view to regulating the conduct of hostilities. This is re-
flected both in treaty and in customary ihl. For international armed conflicts,
States parties to the GCs and APs are obliged to “undertake, in time of peace
as in time of armed conflict, to disseminate the Conventions and this Protocol
as widely as possible in their respective countries” [art. 47 gci; art. 48 gcii; art.
127 gciii; art. 144 gciv; art. 83 api]. Article 83 api further specifies that States
parties are to “include the study [of the GCs and api] in their programmes of
military instruction and to encourage the study thereof by the civilian popula-
tion”. For non-international armed conflicts, the treaty law obligation is less
specific in that Article 19 apii only provides that “this Protocol shall be dis-
seminated as widely as possible”. Common Article 3 GCs does not contain an
equivalent obligation. It is therefore a regrettable fact that customary ihl is
rather specific on the one hand, but considerably less comprehensive on the
other hand in that Rule 142 of the icrc Customary ihl Study determines that
“States and parties to the conflict must provide instruction in international
humanitarian law to their armed forces” and Rule 143 of this study provides
that “States must encourage the teaching of international humanitarian law to
the civilian population”.
In addition to States as parties to ihl treaties and subjects of internation-
al law, both the icrc [see: International Committee of the Red Cross] and
National Red Cross and Red Crescent Societies [see: International Red Cross
and Red Crescent Movement] have a mandate to disseminate ihl. The Stat-
utes of the International Red Cross and Red Crescent Movement, as adopted
306 Dissemination.
jointly by the States parties to the GCs and the components of the Movement,
provide that one of the aspects of the role of the icrc is “to work for the un-
derstanding and dissemination of knowledge” of ihl and, additionally, “to pre-
pare any development thereof” [art. 5(2)(g) Statutes]. National societies have a
threefold mandate in the area of dissemination in that they disseminate ihl,
“assist their governments in disseminating” ihl, and “take initiatives in this
respect” according to Article 3(2) of these Statutes. In addition, according to
this provision, they “cooperate with their governments to ensure respect for
international humanitarian law and to protect the distinctive emblems”.
Beyond members of the armed forces and the civilian population, the main
target groups of dissemination, both for States as for the components of the In-
ternational Red Cross and Red Crescent Movement, are decision-makers in the
political and civil society sphere, police and peace-keeping officers, legal and
medical communities, as well as the media and the general public. For com-
ponents of the Movement, their staff and volunteers are further target groups
in order to enhance their understanding of the legal, historical, and ethical
roots and contexts of their activities and actions. Beyond ihl, components
of the Movement disseminate the fundamental principles of the Movement –
namely humanity, impartiality, neutrality, independence, voluntary service,
unity and universality – and its ideals.
Typical dissemination measures and activities are publications and reports,
conferences and workshops, policy and position papers, as well as speeches
and public statements.
Although dissemination is an essential prerequisite for a regulation of ihl
to be effective and to actually guide the behaviour of parties to an armed con-
flict, it is not a sufficient condition. As much as it is unlikely that a party to an
armed conflict will apply and observe a rule of ihl which is not known, it is
far from guaranteed that a provision will be applied and observed even when it
is known and understood. For instance, debates on the lawfulness of conduct
in recent armed conflicts have not featured arguments that the prohibitions
of, for instance, direct attacks against civilians, the prohibition of starvation,
or the obligation to direct operations only against military objectives would
not have been known and understood. Parties to the armed conflict in Syria
have similarly not claimed that the prohibition of the use of chemical agents
is unknown or not sufficiently disseminated. Any dissemination measure is in-
adequate in relation to the desired result of compliance with ihl and, at the
same time, indispensable and without alternative.
Heike Spieker – the views expressed are those of the author alone and do not
necessarily reflect the views of the German Red Cross or any other institution the
Distinction 307
Bibliography
J. Chan, ‘Implementation of International Humanitarian Law’, 8(2) Asia Pacific Law
Review (2000).
D. Muñoz-Rojas, J.-J. Frésard, ‘The Roots of Behaviour in War: Understanding and Pre-
venting ihl Violations’, 86(853) irrc (2004).
Distinguish, Obligation to; see: Combatants; Additional Protocol i; Guerrilla;

Terrorist Organizations
Distinction. The principle of distinction is one of the fundamental pillars of

ihl and requires the parties to an armed conflict to distinguish between, on
the one hand, combatants and military objectives at all times [see: Combat-
ants; Military Objectives] and, on the other hand, the civilian population and
civilian objects at all times [see: Civilians; Civilian Population; Civilian Ob-
jects; Protected Objects]. As a consequence, civilians and civilian objects can
never be the object of an attack [rules 1–3, 7 icrc Customary ihl Study; see:
Attacks against Civilians and Persons Hors de Combat]. Only combatants
and military objectives are legitimate targets. This principle is applicable in
international as well as non-international armed conflict.
The principle of distinction has been qualified by the icj as one of the “in-
transgressible principles of international customary international law” and is
to be seen as one of the “cardinal principles” of ihl [Advisory Opinion, Legality
of the Threat or Use of Nuclear Weapons, icj, paras. 78–79; see: International
Humanitarian Law, General Principles of]. It is enshrined in treaty law [arts.
48, 51 api; art. 13 apii; art. 8(2)(b)(i)-(ii) icc Statute], customary international
law [Nuclear Weapons Advisory Opinion, para. 79; Decision on the Defense
Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Cham-
ber, paras. 100–127] and considered to be ius cogens [J.-F. Quéguiner, ‘The
Principle of Distinction: Beyond an Obligation of Customary International
Humanitarian Law’, in H. Hensel (ed.), The Legitimate Use of Military Force
(2008), pp. 171–172].
The principle of distinction, like other core principles, dates back to the very
early development of ihl. Differentiating between combatants and civilians is
found in Islamic legal culture and medieval moral theology [S. Oeter, ‘Means
and Methods of Warfare’, in D. Fleck (ed.), Handbook of International Humani-
tarian Law (2013), p. 122]. Further developed during the nineteenth century,
it led to the establishment of the prohibition of indiscriminate warfare and
its acceptance as customary international law [1987 icrc Commentary api,
paras. 1823–1827; rules 1, 11 icrc Customary ihl Study; see: Indiscriminate
308 Distinction
Attacks]. The first (although vague) codification that was found in the Lieber
Code of 1863 required unarmed citizen to be spared “as much as the exigencies
of war will admit” [art. 22 Lieber Code]. The 1907 Hague Regulations, while
focused on the protection of personal property in war [art. 23 1907 Hague
Regulations] and on the prohibition to bombard undefended localities [art.
25 1907 Hague Regulations], brought further codification. Despite the fact that
the civilian population was targeted to a large extent during World War ii,
and the unfortunate failure to incorporate the rule of distinction in the 1949
GCs, it was still accepted as reflecting customary international law during
this time period [Oeter, p. 123]. Finally, the principle of distinction was prop-
erly codified in Article 48 api and Article 13 apii. Since then, the principle
has been included in many other international law instruments, State military
manuals (regardless of their ratification of the APs), national (penal) legisla-
tion, as well as in national and international jurisprudence, confirming the
principle as reflecting customary international law [rule 1 icrc Customary ihl
Study].
The rationale and purpose of the principle of distinction is to protect the
civilian population from the effects of warfare. The principle, in its current
form, is clear and straightforward, as it recognises only two categories to be
distinguished under ihl, namely civilians and combatants. The principle
of distinction, which is also a reflection of the two pivotal principles of ihl,
namely military necessity and humanity [see: Military Necessity; Humanity],
is also proof of their importance. Indeed, while combatants can be lawfully
targeted in order to achieve military advantage, civilians must be spared and
cannot be made the object of an attack, in accordance with the principle of
humanity [see: Attacks against Civilians and Persons Hors de Combat].
The observance of the principle of distinction is crucial in upholding the
aforementioned balance between military necessity and the principle of
humanity in armed conflict. However, the evolution of armed conflicts has
brought about many challenges. The growing number of non-international
armed conflicts has led to an increase in the number of civilians directly par-
ticipating in hostilities, as well as in the use of human shields, voluntary or not
[see: Direct Participation in Hostilities; Human Shields]. Furthermore, the
rise in asymmetric warfare emphasised issues such as dual-use objects [see:
Asymmetric Warfare]. These examples highlight how the principle of distinc-
tion, while simple at its core, is highly complex and challenging to apply in
practice, especially with the evolution of warfare. Due to its general and ab-
stract formulation, it clashes with the complex requirements of combatant sta-
tus, or with the conditions for civilians not to be participating in hostilities. In
this regard, api is the first international treaty concretising such requirements
for application in practice [Quéguiner, p. 161].
Drones 309
In conclusion, the central aspect of the principle of distinction resides in

the definition of the categories of persons and objects that can be lawfully
targeted and attacked and of those which cannot. The most important step,
therefore, is to define these categories with regard to persons and objects, and
determine to which category they belong. Despite the efforts to define these
terms in api, it is important to note that the definitions of combatants and
prisoners of war found in Articles 43 and 44 api are not without controversy,
and one of the reasons why States like the U.S. and Israel have not ratified api
[see: Additional Protocol i].
Robert Heinsch – the views expressed are those of the author alone and do not
Bibliography
(2016), pp. 72 et seq.
H.-P. Gasser, K. Dörmann, ‘Protection of the Civilian Population’, in D. Fleck (ed.),
Handbook of International Humanitarian Law (2013).
T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under Inter-
national Humanitarian Law – Challenges of 21st Century Warfare (2014 and 2017).
K. Ipsen, ‘Combatants and Non-Combatants’, in D. Fleck (ed.), Handbook of
International Humanitarian Law (2013).
J-F. Quéguiner, ‘The Principle of Distinction: Beyond an Obligation of Customary
International Humanitarian Law’, in H. Hensel (ed.), The Legitimate Use of Military
Force (2008).
Drones. A drone is a land, sea, or air vehicle that is remotely or automatically

controlled. Contemporary drones come in all shapes and sizes and can per-
form a wide array of functions, including surveillance and employing both
lethal and less than lethal force. For example, current aerial drones include
some the size of insects, capable of short range surveillance operations within
buildings, while others weigh seven tons, have a 100-foot wingspan, and are
capable of remaining aloft for over 24 hours, flying over 10.000 miles, and fir-
ing missiles at ground based targets. While the number and type of ground,
surface, and subsurface drones is rapidly growing, the public debate, and this
entry, primarily focuses on military use of weaponized aerial drones.
Drones date back to the late nineteenth century, when Serbian-American
inventor Nikola Tesla demonstrated the use of radio frequencies to remotely
control small devices. In 1898, the U.S. Patent Office approved Tesla’s patent
application for his “Method and Apparatus for Controlling Mechanism of Mov-
ing Vessels or Vehicles”. Over the course of the twentieth century, militaries
310 Drones
incorporated and expanded on Tesla’s concept of remote control, with the first
aerial drone by the end of World War i and radio controlled bombs in World
War ii. In the decades that followed, drones were equipped with cameras for
use as reconnaissance platforms, and later a laser designator that illuminated
a target that a manned aircraft could then attack.
As drones became able to loiter, to remain in the air for much longer peri-
ods of time than manned aircraft, weaponizing drones offered military com-
manders increased operational capabilities. After the September 11th terrorist
attacks, in November, 2001, the United States conducted the first armed drone
strike in Afghanistan, purportedly killing a high level member of Al Qaida. This
strike was the result of an armed drone flying above Afghanistan, but pilot-
ed by a U.S. Air Force officer not only on the ground, but thousands of miles
away, in the United States. Since that first strike, drone technology and use
have proliferated. As of this writing, in addition to the U.S., China, Iran, Iraq,
Israel, Nigeria, Pakistan, South Africa, Turkey, and the United Kingdom have
all employed weaponized aerial drones in armed conflict. By some estimates,
at least ten other countries are developing armed drones, and some fifty other
countries, and the UN, currently employ surveillance drones.
The increased employment of armed drones has highlighted and height-
ened the tension between State transparency, about where and why deadly
force is used and the need for States to retain operational security of its tac-
tics, techniques, and procedures. And drone strikes raise a number of legal
issues.
A threshold question, that dictates the quantum and type of international
law implicated, is whether a drone strike crosses international borders. Such
strikes constitute a use of force and an armed attack under the UN Charter and
raise challenging, though not unique, ius ad bellum questions including the
exercise of consent, sovereignty, and self-defense [see: Ius ad Bellum]. And be-
cause cross-border strikes are often into an area in which the entity launching
the strike does not exercise control, both battle damage and civilian casualty
assessments have been challenging and contradictory.
The legality of drone strikes also depends on whether the question is con-
sidered under ihrl, where lethal force is a last resort, or ihl, whereby lethal
force may be employed in the first instance [see: International Human Rights
Law; International Humanitarian Law]. Determining which of those bodies
of law applies depends on the existence, and scope, of armed conflict, which in
turn raises additional questions. There is consensus that the ius in bello (ihl)
governs drone strikes conducted in recognized areas or zones of armed con-
flict, as ihl is lex specialis and may prevail over human rights and domestic
law in times of war. In contrast, drone strikes outside of recognized areas of
DRONES 311
armed conflict, particularly those conducted by other than State armed forces,
notably intelligence services, engender debate about extrajudicial killing and
whether ihrl applies [see: Targeted Killing].
Within ihl, drone strike proponents and opponents often use the same at-
tributes to reach very different conclusions. For example, proponents claim
drones’ loiter capability allows for the gathering of greater amounts of intel-
ligence, facilitating more accurate strikes and less collateral damage [see:
Precautions, Active; Proportionality]. To opponents, loitering drones cause
psychological harm to the civilian population living under a near constant
threat that a strike may occur nearby.
In other areas, those debating drones tend to talk past each other, referring
to different legal regimes. Proponents stress an in bello claim that drones are
more and better able to exercise the principle of distinction and differentiate
between the object of attack and civilians [see: Distinction]. To opponents,
drones have facilitated, even caused, a lowering of the threshold for the use of
the force.
There is no debate that drones are becoming ubiquitous and no longer the
exclusive purview of States; a number of non-State actors, including Hamas,
Hezbollah, and isis, have already begun to employ weaponized drones. The
looming spectre of increased numbers of drone strikes stands in stark con-
trast to the future Tesla envisioned. In his patent application, Tesla wrote
that the greatest value of drones would be that “by reason of its certain and
unlimited destructiveness it will tend to bring about and maintain permanent
peace among nations”. While the world has not yet had an armed conflict in-
volving significant numbers of armed drones on each side, such a war seems
inevitable. When such a conflict occurs, it will be interesting to see if States
modify their view of international law’s application to drones and drones
strikes.
Chris Jenks – the views expressed are those of the author alone and do not
Bibliography
S. Barela, Legitimacy and Drones: Investigating the Legality, Morality and Efficacy of
ucavs (2015).
C. Finkelstein, J.D. Ohlin, A. Altman (eds.), Targeted Killings: Law and Morality in an
Asymmetrical World (2012).
K. J. Heller, ‘“One Hell of a Killing Machine”: Signature Strikes and International Law’,
11(1) jicj (2013).
M.N. Schmitt, ‘Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing the
“Fog of Law”’, 13 yihl (2010).
312 DUM-DUM (EXPANDING) BULLETS
Dual-Use Objects; see: Military Objectives; Civilian Objects
Dum-Dum (Expanding) Bullets. Expanding bullets are those that “expand or

flatten easily in the human body, such as bullets with a hard envelope which
does not entirely cover the core or is pierced with incisions” [Hague Declara-
tion (iv, 3) concerning Expanding Bullets].
In the early 1890s, concerned that their rifle ammunition was ineffective
against attacking tribesmen, British troops began filing down the tip of the
round in the field to reveal the bullet’s lead core. This caused the bullet to ex-
pand when it entered the human body, inflicting far greater wounds than its
original. This improvised soft-point round, which is a bullet whose jacket is cut
back at the nose to reveal the lead core, became known as the Dum Dum bullet,
so called after the factory at Dum Dum near Calcutta that manufactured it in
the mid-1890s. Subsequently, a hollow-point bullet, which is a semi-jacketed
bullet, the nose of which has a cavity and imparts similar terminal ballistics
effects, was produced at the Woolwich ordnance factory in the late 1890s.
The use of expanding bullets as a means of warfare was prohibited by the
Hague Declaration (iv, 3) of 1899, despite opposition to the ban by the United
Kingdom and the United States. The US delegate had proposed a more gen-
eral prohibition on the use of bullets that “inflict wounds of useless cruelty,
such as explosive bullets and in general every kind of bullet which exceeds
the limit necessary for placing a man immediately hors de combat” [Geneva
Academy of International Humanitarian Law and Human Rights, ‘1899 Hague
Declaration concerning Expanding Bullets’, Weapons Law Encyclopedia]. The
prohibition is generally agreed to encompass both hollow-point and soft-point
rounds. More controversial are open-tip-match rounds, which have a small ap-
erture in the nose as part of the manufacturing process, and which are used by
United States Marines in Afghanistan. These bullets do meet the international
treaty definition, but may reduce the risk of harming civilians as they are more
accurate. The US is not a State party to the Hague Declaration.
Use of expanding bullets by armed forces in the conduct of hostilities is a
serious violation of ihl [rule 77 icrc Customary ihl Study]. According to this
study, State practice establishes this rule as a norm of customary international
law applicable in both international and non-international armed conflicts.
Furthermore, it is, when it occurs with the requisite mens rea, a war crime in
international armed conflict [art. 8(2)(b)(xix) icc Statute] and, following an
amendment of the icc Statute in 2010, in non-international armed conflict
[art. 8(2)(e)(xv) icc Statute].
It should, though, be noted that expanding bullets are permissible for use
in law enforcement operations [see: Law Enforcement]. This means that a sol-
dier of one State may not use expanding bullets against a soldier of another
Dunant, Henry 313
State during an armed conflict or against its own citizens in the conduct of
hostilities in a non-international armed conflict, but a police officer may law-
fully use expanding ammunition against one of his/her State’s own citizens.
This is due to the fact that law enforcement operations are often conducted
in public places and that expanding ammunition is believed to significantly
reduce the risk of over-penetration and possibly also of ricochet. As a result
of human rights obligations, particularly to life and humane treatment, the
danger of innocent bystanders being harmed when police officers open fire
must be reduced to a minimum. This is one of the very few instances when
ihl is more restrictive than is the international law of law enforcement and
international human rights standards [see: International Human Rights Law].
Bibliography
R. Coupland, D. Loye, ‘The 1899 Hague Declaration concerning Expanding Bullets:
A Treaty Effective for More than 100 Years Faces Complex Contemporary Issues’,
85(849) irrc (2003).
Geneva Academy of International Humanitarian Law and Human Rights, ‘1899 Hague
Declaration concerning Expanding Bullets’, Weapons Law Encyclopedia.
M. Waldren, ‘Dum-Dum Bullets’, Police History Series (2012).
Dunant, Henry. The Swiss banker Henry Dunant was one of the founding
members of the icrc [see: International Committee of the Red Cross], for-
merly named the International Committee for Relief to the Wounded. As
a young man, he was involved in a number of charitable activities, and he
was also fascinated by the works of philanthropists of his time, such as Har-
riet Beecher Stowe (abolitionist), Florence Nightingale (founder of modern
nursing), and Elizabeth Fry (prison reformer). He became a fervent advocate
for assisting wounded soldiers after witnessing the aftermath of the battle of
Solferino on 24 June 1859. This battle – fought between the Franco-Sardini-
an Alliance and the Austrian army – had left approximately 40.000 wounded
combatants without medical assistance, due to the inability of the medical ser-
vices of the armed forces. Dunant himself organized medical attention for the
wounded in the nearby town of Castiglione delle Stiviere. In 1862, using his own
financial resources, he published the book “Un Souvenir de Solferino”, in which
he described the battle. He proposed two ideas for alleviating the suffering of
wounded soldiers, namely the creation of relief societies that would act as aux-
iliaries to the army medical services and a legal basis that would oblige armies
to care for all wounded, regardless of the side for which they were fighting.
314 Dunant, Henry
Dunant’s ideas were well received by the Geneva Public Welfare Society,
which established a committee to consider ways of putting Dunant’s ideas
into practice. The committee, comprising Dunant and four other citizens of
Geneva (Louis Appia, General G.H. Dufour, Theodore Maunoir, and Gustave
Moynier), changed its name on 17 February 1863 to create the International
Committee for Relief to the Wounded. In October 1863, they convened an In-
ternational Conference in Geneva, which resulted in the adoption of 10 resolu-
tions reflecting the Committee’s (especially Dunant’s) proposals and giving the
initial impetus to the development of the laws of war.
Subsequently, the proposals adopted by the Conference were submitted to
States for approval and, on 22 August 1864, twelve States signed a treaty en-
shrining the obligation to spare and protect wounded soldiers and the people
and equipment involved in their care. The Geneva Convention was born and,
with it, modern ihl.
Soon thereafter, national relief societies – adopting the emblem of the red
cross – started being set up in each country of Europe [see: Emblem]. Dunant’s
humanitarian work earned him the recognition and respect of European lead-
ers. In 1868, as a result of his declaration of bankruptcy in 1867 and the ensuing
scandal, Dunant was forced to resign in 1868 from his post as secretary of the
International Committee. Dunant’s life changed drastically, and years of wan-
dering and utter poverty followed. In 1887, he took refuge in the Swiss village
of Heiden, where he became friends with members of the local community.
One of them, Susanna Sonderegger, took the initiative to found a local branch
of the Red Cross and asked Dunant to serve as honorary President. Years later
Dunant fell ill and moved to Heiden’s residential hospital in 1892. Notwith-
standing his health problems, he kept advocating for more humane wars.
In 1895, Dunant met Georg Baumberger, a journalist, who wrote about him.
Baumberger’s article contributed to rehabilitating Dunant and building a last-
ing memory of his work. In 1901, Dunant was awarded the Nobel Peace Prize
in recognition of his lifetime humanitarian efforts. Since 1922, in his honour,
the birthday of Dunant (8 May) is celebrated as the World Red Cross and Red
Crescent Day.
Marcos Pablo Moloeznik – the views expressed are those of the author alone and
Bibliography
H. Dunant, A Memory of Solferino (1862).
C. Krusen, They were Christians: The Inspiring Faith of Men and Women Who Changed
the World (2016), pp. 107–120.
C. Moorehead, Dunant’s Dream – War, Switzerland and the History of the Red Cross
(1999).
Economic Warfare 315
Economic Warfare. This term describes methods used by a party to a conflict

to weaken an adversary’s economy, as a strategy of war. Economic warfare
comes in a variety of forms. Some involve the use of military force, such as
instituting a naval blockade [see: Blockade], bombing the adversary’s eco-
nomic infrastructure, and intercepting contraband. Other non-forcible mea-
sures include domestic acts by a party to the conflict, such as legislative and
executive acts imposing a trade embargo or freezing enemy property [see:
Embargo].
Where these methods are used during armed conflict, the GCs and other
relevant instruments that protect civilian populations must be observed, who
invariably will be casualties of economic warfare. The starvation of civilians,
through the destruction of objects indispensable to their survival, is prohibited
by Article 54(1)-(2) api and Article 14 apii [see: Starvation], and described as
a war crime during international armed conflict in the icc Statute [art. 8(2)
(b)(xxv) icc Statute]. Furthermore, relief action for civilians in need must
be allowed [arts. 23, 59 gciv; art. 70 api; art. 18 apii; see: Humanitarian
Relief].
However, economic warfare methods are not prohibited where they serve
a military objective, rather than to starve a civilian population. As with other
methods of war, economic warfare that affects a civilian population will be
subject to the principle of proportionality [arts. 49(3), 51(5), 54(1) api; paras.
102–103 San Remo Manual; see: Proportionality].
The permissibility of blockades that prevent all vessels or aircraft from en-
tering enemy territory is also subject to the GCs and custom, codified in the
San Remo Manual. Notably, the rules on blockade apply only in an internation-
al armed conflict. Where the civilian population of the blockaded territory is
not adequately provided with objects essential for its survival, “the blockading
party must provide for free passage of such foodstuffs and other essential sup-
plies”, subject to a right for such party to prescribe the technical arrangements
for such passage [para. 103 San Remo Manual].
Bibliography
T.E. Førland, ‘The History of Economic Warfare: International Law, Effectiveness,
Strategies’, 30(2) Journal of Peace Research (1993).
M. Happold, P. Eden (eds.), Economic Sanctions and International Law (2016).
Education. During armed conflict, schools can be a safe-haven, keeping chil-

dren away from dangers and risks of exploitation [see: Children]. Receiving
316 Education
an education may provide children with a sense of normality and stability, as

well as psychological protection from the many hardships they face outside.
Schools offer structured activities where children can express their emotions
and even process their trauma. International law, ihl, and ihrl, ensure the
right to education during armed conflict, protects schools, students, and teach-
ers from attacks, and limits the occupation or use of educational facilities by
warring parties.
“Everyone has the right to education”, proclaims the udhr [art. 26(1) udhr].
This right is enshrined in key international human rights treaties, including the
icescr [art. 13 icescr] and the Convention on the Rights of the Child (crc)
[art. 28 crc; see: Convention on the Rights of the Child (1989) and its Proto-
cols]. The GCs and their APs contain several provisions protecting children’s
education during armed conflict, including those orphaned or separated from
their families [art. 24 gciv], interned children and young people [art. 94 gciv],
and evacuated children [art. 78(2) api]. They also provide for the occupying
power’s obligation to facilitate the proper functioning of educational institu-
tions during military occupation [art. 50 gciv]. Education is also guaranteed
during non-international armed conflict, as parties must ensure that children
receive the care and aid they require, including education [art. 4(3)(a) apii].
Besides the general protection provided to civilian objects from direct and
deliberate attack [see: Civilian Objects], treaty and customary ihl provides
specific protection for educational facilities. Article 56 of the Hague Regula-
tions of 1899 and 1907 prohibits “all seizure of, and destruction, or intentional
damage done to” certain institutions including those dedicated to education.
api underlines that, for all objects normally dedicated to civilian purposes,
including schools, in case of doubt as to whether it is being used to make an
effective contribution to military action, it shall be presumed not to be so used
[art. 52(3) api]. The icrc Customary ihl Study asserts that schools, like other
civilian objects that are not military objectives, are protected against attacks
[rules 9, 10 icrc Customary ihl Study], that the seizure of or destruction or
wilful damage to institutions dedicated to education is prohibited [rule 40(A)
icrc Customary ihl Study], and that, unless they are military objectives,
special care must be taken in military operations to avoid damage to buildings
dedicated to education which benefit from special protection as cultural prop-
erty under customary law [rule 38(A) icrc Customary ihl Study]. The icc
Statute qualifies intentionally directing an attack against buildings dedicated
to education, provided that they are not military objectives, as a war crime
in both international and non-international armed conflicts [art. 8(2)(b)(ix),
8(2)(e)(iv) icc Statute]. In addition, the Optional Protocol to the Convention
on the Rights of the Child on the Involvement of Children in Armed Conflict
Embargo 317
(opac) condemns “the targeting of children in situations of armed conflict

and direct attacks on objects protected under international law, including
places that generally have a significant presence of children, such as schools
and hospitals” [Preamble opac, para. 5; see: Convention on the Rights of the
Child (1989) and its Protocols].
Unless educational facilities qualify as a specially protected object, such
as a cultural object or a medical facility (for example a teaching hospital),
it is not explicitly prohibited under ihl to use or occupy them for military
purposes, although parties to a conflict remain under the obligation to take
precautionary measures to protect civilian objects, including schools, from the
effects of military operations [see: Precautions, Passive]. Yet, the use or oc-
cupation of educational facilities may turn them into military objects, expos-
ing them to lawful attack by the enemy, thus placing students and teachers
at risk.
Seeking to limit the occupation or use of education institutions by armed
forces and groups, a “Safe Schools Declaration”, drafted by a group of States led
notably by Norway and Argentina, was opened for States’ endorsement in 2015.
More than 50 States have done so. States can commit themselves to minimize
the use of schools or university buildings as military bases or barracks. Fur-
thermore, the unsc has encouraged all countries to take concrete measures to
protect schools from such interference [e.g. unsc Resolution 2143 (2014), para.
18, unsc Resolution 2225 (2015), para. 7].
Bibliography
S. Dryden-Peterson, K. Mundy, Educating Children in Conflict Zones: Research, Policy,
and Practice for Systemic Change – A Tribute to Jackie Kirk (2015).
B. O’Malley (unesco), Education under Attack (2010).
Save the Children London, Attacks on Education. The Impact of Conflict and Grave
Violations on Children’s Future (2013).
unesco, Protecting Education from Attack: A State-of-the-Art Review (2010).
Embargo. In past times, the term “embargo” was understood as a specific form
of self-help, whereby an injured State would detain vessels sailing the flag of
a delinquent State. Nowadays, the term is commonly used to refer to a type of
sanction through which a State restricts transportation to and from another
State (e.g. by prohibiting foreign vessels and aircraft from entering its ports
318 Embargo
and airspace), or refuses to engage in trade with another State, by prohibiting

importation from and exportation to that State (a trade embargo).
Embargoes can be comprehensive or target specific goods, such as arms,
diamonds, oil, agricultural products, etc., or particular economic or finan-
cial sectors. The term is not ihl-specific. Embargoes can be adopted during
peacetime, as well as during armed conflict. As a policy tool, such measures are
adopted for multiple reasons; examples include the desire to signal disapproval
of the targeted State’s policy or to pressure it into changing its behaviour.
Embargoes can be either adopted unilaterally by a State or group of States, or
multilaterally by an international organization on the basis of its constitutive
act and against one of its Member States. In the latter case, the implementa-
tion of the embargo depends on the individual State authorities. One peculiar
case is the European Union, which frequently adopts embargoes against non-
EU Member States. Though the measures are adopted by an international or-
ganization, they are unilateral in nature as they target non-member countries.
As far as multilateral embargoes go, these measures are frequently adopted
by the unsc pursuant to Article 41 UN Charter, which provides that the Coun-
cil may decide the “complete or partial interruption of economic relations”.
In accordance with Article 39 UN Charter, the Council can exercise this com-
petence whenever it finds a threat to the peace, a breach of the peace or an
act of aggression. unsc embargoes have proliferated since the end of the Cold
War.
Unilateral and UN sanctions will sometimes co-exist, specifically where
individual States decide to supplement unsc embargoes with additional mea-
sures (trade restrictions or other). An illustration is the EU oil embargo against
Iran [Council of the European Union, Decision 2012/35/CFSP (2012)] that was
implemented alongside the unsc sanctions.
Embargoes are a form of non-forcible coercion (that is, assuming they are
not accompanied by extraterritorial measures of enforcement jurisdiction)
[see e.g. Blockade]. Under international law, an embargo would qualify as
either (1) an act of retorsion (a lawful though unfriendly act) or (2) an interna-
tionally wrongful act (if the measure violates an international obligation the
sending State owes to the State targeted). In the latter scenario, the unlawful-
ness of the embargo could be precluded if a circumstance precluding wrong-
fulness is applicable, such as countermeasures.
Assessing whether an embargo qualifies as one or the other requires an
ad hoc approach, having regard to the fact that States are in principle free to
choose with whom they engage in trade, whereas this freedom can be cur-
tailed by treaty commitments as well as customary international law. By way
of illustration, the icj considered that the (unilateral) U.S. embargo against
Nicaragua breached the U.S.-Nicaragua Treaty of Friendship, Commerce and
Embargo 319
Navigation of 1956 [Judgment, Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United States), icj, para.276]. At the same
time, the embargo was not found to result in a breach of the customary non-
intervention principle.
Over the years, the negative humanitarian consequences of embargoes on
the targeted State’s population have given rise to concerns. This has especially
been the case for general trade embargoes or restrictions on important sectors
of the State’s economy. The devastating effects of embargoes on civilians –
especially the most vulnerable – became apparent in the context of the com-
prehensive UN embargo against Iraq in the 1990s. Despite the Oil-for-Food
programme, the measures against Iraq were believed to have caused high rates
of malnutrition, disease, and an increase in infant mortality. Since the Iraqi
sanction regime, comprehensive embargoes have been avoided in favour of
“targeted” or “smart” sanctions, especially in the form of asset freezes and trav-
el bans imposed upon individual high-level State officials, as well as other per-
sons and entities (albeit that the compatibility of the UN (de-)listing regime
with ihrl has been the subject of debate). In addition, in order to mitigate
the adverse consequences of embargoes, the unsc and the EU, for instance,
have allowed humanitarian exceptions. These exceptions aim to ensure that
the population does not suffer from a lack of foodstuffs, medicines, and other
basic needs.
It is uncontested that, when adopted in wartime, embargoes must comply
with ihl, and in particular: (1) the prohibition to starve the civilian popula-
tion [see: Starvation]; and (2) the right of the civilian population to receive
humanitarian assistance and relief supplies [see: Humanitarian Relief]. In the
context of an armed conflict, the imposition of unilateral embargoes by neu-
tral States against a belligerent State may moreover be problematic under the
law of neutrality and in particular the duty of impartiality, which traditionally
requires that, if a neutral State imposes a trade embargo on one belligerent, it
does the same towards the other belligerent(s) [see: Neutrality].
Some commentators have argued that the same principles underlying ihl
should apply by analogy in the absence of an armed conflict [e.g. M. Reisman,
D. Stevick, ‘The Applicability of International Law Standards to United Nations
Economic Sanctions Programmes’, 9(1) ejil (1998); see: Proportionality; Mili-
tary Necessity; Distinction]. A more convincing argument is perhaps that co-
ercive embargoes should respect the principle of proportionality, a key maxim
not only of ius in bello, but also general public international law. Proportional
embargoes would also mitigate adverse effects on the civilian population’s hu-
man rights.
It has further been argued that sanctions should abide by ihrl. There is
debate as to whether this applies to the unsc in light of Articles 25 and 103 in
320 Emblem
the UN Charter, which stipulate that UN Members’ obligations pursuant to

Chapter vii resolutions of the unsc take precedence over their obligations
“under any other international agreement”. There would, however, appear to
be a consensus that the unsc is bound by customary ihrl, and especially
non-derogable human rights.
Tom Ruys, Alexandra Hofer – the views expressed are those of the authors
affiliated with
Bibliography
B.E. Carter, ‘Economic Sanctions’, in R. Wolfrum (ed.), Max Planck Encyclopaedia of
Public International Law (2012).
P.-E. Dupont, ‘Countermeasures and Collective Security: The Case of the EU Sanctions
Against Iran’, 17(3) Journal of Conflict & Security Law (2012).
V. Lowe, A. Tzanakopoulos, ‘Economic Warfare’, in R. Wolfrum (ed.), Max Planck
Encyclopaedia of Public International Law (2012).
M. Reisman, D. Stevick, ‘The Applicability of International Law Standards to United
Nations Economic Sanctions Programmes’, 9(1) ejil (1998).
N. Ronzitti (ed.), Coercive Diplomacy, Sanctions and International Law (2016).
A. Segall, ‘Economic Sanctions: Legal and Policy Considerations’, 836 irrc (1999).
N. Tsagourias, N.D. White, Collective Security: Theory, Law and Practice (2013),
pp. 219–246.
L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law
(2017).
Embedded Journalists; see: War Correspondents
Emblem. Prior to the adoption of the 1949 GCs, those responsible for the pro-
tection of the wounded on the battlefield made use of a variety of symbols
to identify themselves. However, as many of these symbols were unknown to
the opposing side(s), such persons were not adequately protected. This led
to the need to develop distinctive identification for the persons concerned
and related objects and equipment [see also: Signal]. For these purposes, ihl
currently recognises four emblems placed on a white background: the red
cross, the red crescent, the (now defunct) red lion and sun, and the red crystal
[art. 38 gci; art. 41 gcii; art. 8(l) api; art. 12 apii; art. 2 apiii].
The emblem has, first and foremost, a protective function. In armed con-
flict, it aims at distinguishing between individuals and objects entitled to pro-
tection from attack under the 1949 GCs and the 1977 APs from those that may
not claim such protection. Individuals and objects that may benefit from the
Emblem 321
protective function of the emblem are: (i) medical and religious personnel
of the armed forces and, under certain circumstances, medical personnel of
national societies and voluntary aid societies, as well as civilian medical and
religious personnel [arts. 39–41, 43 gci; arts. 41–42 gcii; art. 20 gciv; art. 18(1),
(3) api; see: Medical Personnel; Religious Personnel]; and (ii) medical units,
establishments, and material of armed forces and, under certain circumstanc-
es, of national societies and voluntary aid societies, as well as those of civilian
nature [arts. 39, 42–43 gci; arts. 41, 43 gcii; arts. 18(3), 21–22 gciv; art. 6 Annex
i gciv; art. 18(1), (4) api; see: Hospital Ships; Hospitals; Medical Aircrafts;
Medical Equipment; Medical Transport Vessels; Medical Transports;
Medical Units and Establishments]. This function extends, mutatis mutan-
dis, to the medical services of armed groups involved in a non-international
armed conflict surpassing the threshold of apii [art. 12 apii]. However, certain
forms of protection apply more generally under customary ihl in both inter-
national and non-international armed conflict [rule 30 icrc Customary ihl
Study].
The protective use of the emblem is subject to authorisation by the compe-
tent authority [art. 39 gci; art. 41 gcii; art. 18(1), (4) api; art. 12 apii]. In addi-
tion, the circumstances of armed conflict generally require that the emblem
be “as large as appropriate”, in order to be clearly visible [art. 4 Annex i api]. It
is important that, whilst the emblem should in principle be displayed, it may
be decided not to do so for a number of reasons, especially as a result of mili-
tary considerations [art. 42 gci; art. 18(1), (3) api; 2016 icrc Commentary gci,
paras. 2566, 2578–2579, 2644, 2651–2653; 1987 icrc Commentary api, paras.
747, 753, 762, 767]. However, non-display of the emblem does not automatically
lead to loss of protection, considering that the emblem is a mere manifestation
of the protection and not its source [2016 icrc Commentary gci, paras. 2566,
2578–2579, 2650].
The emblem has, in addition, an indicative function. In times of peace, na-
tional Red Cross, Red Crescent, or Red Crystal societies may employ the emblem
for activities that are in conformity with International Red Cross principles
[art. 44(2) gci; see: International Red Cross and Red Crescent Movement].
Such use of the emblem may continue during armed conflict, but, considering
the differing contexts, it must be of a comparatively smaller size, may not be
placed on armlets or on the roofs of buildings, and does not prompt its protec-
tive function [art. 44(2) gci]. However, international Red Cross organisations
and their personnel are not subject to such restrictions and are, accordingly,
permitted to make use of the emblem at all times [art. 44(3) gci; see: Inter-
national Committee of the Red Cross]. Finally, exceptionally and subject to
strict conditions, the emblem may be employed to identify ambulances and
to mark aid stations providing free treatment [art. 44(3) gci].
322 Enquiry
Misuse of the emblem is outlawed. Thus, the 1949 GCs stipulate that use
of the emblem by others than those entitled thereto under ihl is prohibited
at all times [art. 53 gci; art. 38(1) api; art. 12 apii; art. 6 apiii; rule 59 icrc
Customary ihl Study]. In this regard, States parties are required to adopt all
necessary measures to prevent misuse, including legislation [art. 54 gci; art. 45
gcii; art. 6 apiii]. Egregious forms of abuse may amount to a war crime or a
grave breach, such as the perfidious use of the emblem [art. 37(d), 85(3)(f) api;
art. 6 apiii; rule 65 icrc Customary ihl Study; art. 8(2)(b)(vii), 8(2)(e)(ix)
icc Statute; see: Perfidy] and intentionally directing attacks against persons
and objects making use of the emblem in conformity with ihl [rule 30 icrc
Customary ihl Study; art. 8(2)(b)(xxiv), 8(2)(e)(ii) icc Statute].
Many challenges are associated with the emblem. For instance, apiii was
adopted in response to the concerns of certain States and National Societies
regarding the perceived religious connotation of the existing emblems [see:
Additional Protocol iii]. However, the diversity of emblems used in armed
conflicts may cause confusion and, as a result, affect their legitimacy or under-
mine their protective effects. Furthermore, the aforementioned absence of a
legal obligation to display the emblem necessarily heightens the risk that the
persons and objects entitled to its protection may come under attack, espe-
cially because of the increase in long-range targeting in modern warfare. In
addition, the use of the emblem by armed groups in non-international armed
conflict falling short of the apii threshold is not free from uncertainty. In this
regard, the icrc “encourages” competent authorities to permit medical ser-
vices of armed groups to use the emblem for protective purposes [icrc, Study
on the Use of the Emblems (2011), p. 169]. This suggests that there is no legal
obligation to do so, which may impede the protection of those affected by non-
international armed conflict.
Bibliography
A. Bouvier, ‘The Use of the Emblem’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949
G. Cauderay, ‘Visibility of the Distinctive Emblem on Medical Establishments, Units,
and Transports’, 30(277) irrc (1990).
Enquiry. The term enquiry procedure is a broad term covering a range of

measures aiming ultimately at enhancing compliance with ihl. Related (and
partly comprised) notions are compliance, verification, and fact-finding [see:
Enquiry 323
Commissions of Inquiry and Fact-finding Missions], as well as control, super-

vision, inspection, investigation, and safeguards. Under general international
law, the notion of enquiry procedure is placed in the context of the settlement
of disputes at large. Such procedures have been used in a number of differ-
ent roles and functions in evolving international law. In ihl, they admittedly
possess an element of dispute settlement by clarifying disputed facts through
impartial investigation. The focus, however, is on collecting evidence in order
to allow for a legal evaluation of a situation and for enabling to objectify a
judgement on the lawfulness of the behaviour of a party to a conflict. Enquiry
procedures in the context of ihl usually involve the collection of evidence
and/or the ascertainment of facts which are relevant, with a view to evaluating
lawfulness. As such, enquiry procedures may be legally binding or not, perma-
nent or ad hoc.
The basic idea of enquiry in the area of ihl stricto sensu is to obtain infor-
mation about compliance of the parties to an armed conflict with their obli-
gations in the areas of protection of (groups of) individuals and restrictions
on means and methods of warfare. Information on the factual situation and
context is of paramount importance for any legal statement in general and in
particular regarding issues arising in armed conflict. Any tenable evaluation or
judgement on whether specific behaviour of a party to a conflict is lawful or un-
lawful presupposes certainty on the factual details. An enquiry into the factual
ramifications of armed conflicts and the behaviour of parties to a conflict nec-
essarily touches upon sovereignty issues, especially security interests of par-
ties. Quite often, such interests are even deemed relevant for the survival of a
nation and therefore considered to be part of the domaine réservé and to be off
limits. Consequently, the actual implementation of enquiry procedures and
the establishment of respective institutions are dependent on the explicit con-
sent of the party to the conflict concerned. As a rule, parties to a conflict take a
considerably guarded, defensive, or, as the case may be, even negative approach
on providing agreement to enquiry procedures in international relations.
Article 14 of the 1907 Hague Regulations already provided for an “inquiry
office for prisoners of war”, to be instituted on the commencement of hostili-
ties in each of the belligerent States. In its tasks and design, it paved the way
for tracing services as provided for by the GCs and APs [see: Central Tracing
Agency]. The GCs contain common provisions for an enquiry procedure in
Articles 52 gci, 53 gcii, 132 gciii, and 149 gciv, covering all alleged violations
of the GCs and obliging States parties to commence an enquiry “at the request
of a Party to the conflict”.
Despite this legal duty, the wording of the provision makes the actual insti-
tution dependent on agreement by the parties, which to date has always been
324 Environment
lacking so that the instrument has never been made use of. Furthermore, the
ascertainment of facts is a traditional concern and aspiration with regard to
ihl and one of the traditional tasks of a protecting power [e.g. art. 126 gciii;
art. 143 gciv; see: Protecting Powers]. The mandatory agreement to enquiry
measures is enshrined in the designation of the protecting power. As tradi-
tional a means and as classical a manifestation of the typical clash of interests
in ihl the system of protecting powers is, as unused and irrelevant the system
(and the encompassed enquiry mechanism) have become in today’s practice
in international relations. The recent debate and agony concerning renewed
approaches to improving compliance with and promoting respect for ihl
arise out of the underlying, yet different, ambition of the international com-
munity to strengthen legal protection for victims of armed conflict through
better compliance. Enquiry procedures form part and parcel of such compli-
ance mechanisms. To date, it is still a fact that the international community
is uncertain about what the framework conditions for an enquiry procedure,
which is widely deemed to be potentially helpful in order to promote respect
for ihl, could look like.
Bibliography
M. Bothe, ‘Verification of Facts’, in R. Wolfrum (ed.), Max Planck Encyclopedia of
C. Hendersohn, ‘Commissions of Inquiry: Flexible Temporariness or Permanent
Predictability?’, 45 Netherlands Yearbook of International Law (2014).
A. Jachec-Neale, ‘Fact-Finding’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (2012).
T. Pfanner, ‘Various Mechanisms and Approaches for Implementing International Hu-
manitarian Law and Protecting and Assisting War Victims’, 91(874) irrc (2009).
Environment. There are a number of ways in which the protection of the en-
vironment is enshrined in ihl, both generally and through specific provisions.
The general rules on the conduct of hostilities can serve to protect the
environment [see: Hostilities, Conduct of]. According to the principle of dis-
tinction, a distinction must be made between military objectives and civilian
objects [see: Distinction]. Usually, the natural environment is made up of
civilian objects and, in such circumstances, it would, thus, be prohibited to
attack any part of the natural environment. It would only be permissible to
Environment 325
attack a part of the natural environment that is classified as a military objec-

tive under ihl [see: Military Objectives].
Nevertheless, if the natural environment were considered to comprise a
military objective, it would still be essential for the armed forces to comply
with the principles of military necessity and proportionality [see: Military
Necessity; Proportionality]. It is generally accepted that “respect for the
environment is one of the elements that go to assessing whether an action
is in conformity with the principle of necessity” [Advisory Opinion, Legal-
ity of the Threat or Use of Nuclear Weapons, icj, para. 30; J.-M. Henckaerts,
L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005),
p. 144). Furthermore, if extensive damage to property is not justified by mili-
tary necessity, it could constitute a grave breach of the GCs [art. 147 gciv; see:
Grave Breaches]. While the environment is not specifically mentioned here,
other instruments have stated this rule with respect to the natural environ-
ment [see e.g. icrc, Guidelines for Military Manuals and Instructions on the
Protection of the Environment in Times of Armed Conflict, para. 8]. In terms
of proportionality, according to customary international law, it is accepted that
incidental damage to the environment must not be excessive in relation to the
anticipated military advantage from an otherwise lawful attack [Henckaerts,
Doswald-Beck, p. 145].
There are specific provisions relating to the protection of the environment
in api. Article 35 api relates to the basic rules regarding the means and meth-
ods of warfare and states that “it is prohibited to employ methods or means of
warfare which are intended, or may be expected, to cause widespread, long-
term and severe damage to the natural environment”. Article 55 api states
that care should be taken to protect the natural environment and that means
and methods, which are expected to cause widespread, long-term and severe
damage to the environment, thereby prejudicing the health or survival of the
civilian population, are prohibited. It is also prohibited to attack the natural
environment by way of reprisals. Articles 35 and 55 api have been criticised,
however, for creating a cumulative, high, and imprecise threshold [UN Envi-
ronment Programme, Protecting the Environment During Armed Conflict –
An Inventory and Analysis of International Law (2009), p. 11].
In the case of military occupation, unless there is military necessity, an oc-
cupying power can use the occupied territory, but is not permitted to dam-
age or destroy property individually or collectively owned by the inhabitants
[art. 55 1907 Hague Convention iv; art. 53 gciv].
More specific provisions on the protection of the environment during armed
conflicts can be found in the 1976 UN Convention on the Prohibition of Mili-
tary or any Other Use of Environmental Modification Techniques (enmod).
326 ENVIRONMENT
As the name suggests, enmod specifically seeks to prohibit the use of environ-
mental modification techniques and was largely a reaction to military tactics
used by the United States in the Vietnam War. While api addresses the protec-
tion of the natural environment, enmod aims at forbidding techniques that
turn the environment into some sort of weapon itself.
Article 1 enmod states that “each State Party […] undertakes not to engage
in military or any other hostile use of environmental modification techniques
having widespread, long-lasting or severe effects as the means of destruction,
damage or injury to any other State Party”. Significantly, it requires a lower
threshold than api with the cumulative standards being replaced with alter-
native ones. Some have argued that, to date, enmod has been successful as
there have been no scenarios of large-scale environment modification tactics
reported since its adoption.
The ccw, and its 1980 Protocol iii on Prohibitions or Restrictions on the Use
of Incendiary Weapons also contain provisions relating to the protection of
the environment in armed conflict [see: Convention on Certain Conventional
Weapons (1980); Incendiary Weapons].
There are a number of criticisms regarding the existing protection of the
environment in ihl, which have been put forward by the UN Environment
Programme. These include that there are no permanent international mecha-
nisms supervising any legal infringements that lead to environmental damage
during armed conflicts, and in turn, no body to deal with any compensation
claims that may arise. Although an investigative body exists for violations of
api and the GCs, these investigations require consent of the parties and do not
address violations of other legal instruments [see: Commissions of Inquiry
and Fact-finding Missions; Enquiry].
Daniela Gavshon – the views expressed are those of the author alone and do
not necessarily reflect the views of the Public Interest Advocacy Centre
Bibliography
icrc, Guidelines for Military Manuals and Instructions on the Protection of the Envi-
ronment in Times of Armed Conflict (1996).
UN Environment Programme, Protecting the Environment During Armed Conflict –
An Inventory and Analysis of International Law (2009).
Expanding Bullets; see: Dum-Dum (Expanding) Bullets
Exploding Bullets; see: Saint Petersburg Declaration (1868)
Extrajudicial Killing; see: Targeted Killing

Evacuation 327
Evacuation. In general, persons that may be exposed to danger may need to

be evacuated. This is no different in situations of armed conflict. However, in
addition to the existence of an armed conflict often being the very reason of
evacuations, it is a delicate matter under ihl, because forcible displacement of
civilians is prohibited [art. 49 gciv; art. 17 apii; rule 129 icrc Customary ihl
Study; see: Deportation or Transfer of Civilians; Transfer by the Occupying
Power of Its Own Population]. When, and by whom, evacuations are lawful,
and whether an obligation to evacuate or instead a prohibition exists, depends
on the circumstances.
The prohibition against forcible transfer protects the right of individu-
als to remain in their homes or communities [1987 icrc Commentary apii,
para. 4847; Judgment, Stakić, icty, Appeals Chamber, para. 277]. However, for
both international and non-international armed conflicts, ihl includes an
exception to the prohibition of displacement in cases where the security of
the civilians involved, or imperative military reasons, require the evacuation
[art. 49 gciv; art. 17(1) apii; see: Military Necessity]. The icrc further notes
that the possibility of evacuation is provided for in “numerous military manu-
als” and included in the legislation of “many States” [rule 129 icrc Customary
ihl Study].
During evacuations, care has to be taken that it is done with due regard to
conditions of hygiene, health, shelter or accommodation, safety, nutrition,
and that members of the same family are not separated [art. 49(3) gciv]. Any
evacuation of civilians may only be for as long as the conditions warranting
the displacement exist. Indeed, evacuees are to be “transferred back to their
homes as soon as hostilities in the area in question have ceased” [art. 49(2)
gciv]. gciv further specifies that evacuations may not displace civilians out-
side the occupied territory, unless it is “impossible to avoid”. Article 17(2) apii
states that “[c]ivilians shall not be compelled to leave their own territory for
reasons connected with the conflict”, which the icrc understands to mean
that evacuations in times of non-international armed conflict may never in-
volve displacement outside the national territory [rule 129 icrc Customary
ihl Study]. One can imagine situations, however, where a safe area cannot
be found within the State borders and moving civilians across a border into a
neighbouring State may be the only way to ensure their safety and therefore –
similarly – “impossible to avoid”. As long as a proper agreement is entered into
with the neighbouring State [art. 78(3) api], and provided that the persons
concerned are able to return to their homes as soon as possible, and they are
allowed back into the country, it appears that ihl would not prevent such
cross-border evacuations. Naturally, with respect to both international and
non-international armed conflicts, a State may evacuate its own nationals
from another State where fighting is taking place.
328 Evacuation
In case of besieged cities or areas, the parties to the conflict shall endeavour
to conclude agreements to the remove “wounded, sick, infirm, and aged per-
sons, children and maternity cases” from such areas [art. 17 gciv; see: Siege].
For children, ihl contains some specific clauses on evacuations [see: Children].
api sets certain strict conditions for evacuations (across State borders) in case
of children [art. 78 api], while gciv encourages evacuation of children from
besieged areas [art. 17 gciv]. apii similarly requires measures to be taken to
“remove children temporarily from the area in which hostilities are taking
place to a safer area within the country and ensure that they are accompanied
by persons responsible for their safety and well-being” [art. 4(3)(e) apii].
One cannot rely on imperative military reasons as a pretext to remove the
civilian population from a certain area, in order to ethnically cleanse it or ef-
fectuate control over it. In this regard, it is important to note that displacement
for humanitarian reasons is “not justifiable where the humanitarian crisis that
caused the displacement is itself the result of the accused’s own unlawful ac-
tivity” [Stakić, para. 287]. Moreover, the icty held that the assistance of a hu-
manitarian agency in facilitating displacement does not necessarily render the
transfer lawful [Stakić, para. 286; Judgment, Simić, icty, Appeals Chamber,
para. 180]. It further considered that an agreement between (military) leaders,
or other representatives of the parties involved, does not legitimise a transfer
[Judgment, Popović, icty, Trial Chamber, para. 897].
With regards to combatants, ihl allows for the movement of prisoners of
war [see: Prisoners of War; Deprivation of Liberty, Treatment]. The capturing
party has an incentive to move them away from the frontline, to prevent the
prisoners from being liberated by their own party, or to discourage attempts to
escape. In addition, as prisoners of war are in the hands of the detaining power,
they also have to be cared for by this power, which requires that they “shall be
evacuated, as soon as possible after their capture, to camps situated in an area
far enough from the combat zone for them to be out of danger” [art. 19 gciii],
subject to certain conditions [art. 20 gciii].
The foregoing applies only to evacuations required by reasons that relate
to the fighting. apii refers to displacement ordered “for reasons related to the
conflict” [art. 17(1) apii]. This phrase was included to indicate that displace-
ments ordered, for example, because of epidemics or natural disasters, do not
fall under the prohibition [1987 icrc Commentary apii, para. 4855].
Bibliography
V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta,
M. Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015).
Explosive Remnants of War 329
Explosive Remnants of War. The ihl definition of explosive remnants of war

(erw) is found in the ccw [see: Convention on Certain Conventional Weap-
ons (1980)]. The Protocol on Explosive Remnants of War, annexed to the
Convention, defines erw as consisting of “unexploded ordnance” and “aban-
doned explosive ordnance”, each of which are subsequently defined as follows:
“[un]exploded ordnance means any explosive ordnance that has been primed,
fused, armed or otherwise prepared for use and used in an armed conflict.
It may have been fired, dropped, launched or projected and should have ex-
ploded but failed to do so” [art. 2(2) Protocol v ccw]; “[a]bandoned explo-
sive ordnance means explosive ordnance that has not been used during an
armed conflict, that has been left behind or dumped by a party to an armed
conflict, and which is no longer under control of the party that left it be-
hind or dumped it. Abandoned explosive ordnance may or may not have
been primed, fused, armed or otherwise prepared for use” [art. 2(3) Protocol
v ccw].
These definitions are meant to cover the wide range of conventional ex-
plosive weapons that are regularly found following an armed conflict in and
around areas where active hostilities have taken place. Their presence repre-
sents an ongoing danger for civilian populations and, in large numbers, an ob-
stacle to post-war reconstruction and development.
The Protocol on Explosive Remnants of War requires the parties to an
armed conflict to take concrete measures to reduce the dangers posed by
these weapons. These include the recording of information on the explosive
ordnance used or abandoned by its armed forces during a conflict [art. 4(1)
Protocol v ccw]; clearing erw in the territory that it controls after the end of
active hostilities [art. 3(2) Protocol v ccw]; the provision of technical, mate-
rial or financial assistance to facilitate the removal of erw resulting from its
operations and found in territory that it does not control [art. 3(1) Protocol v
ccw]; and taking all feasible precautions to protect civilians from erw [art.
5(1) Protocol v ccw].
However, mines, booby traps and other devices as defined in Protocol ii
(as amended on 3 May 1996) ccw are not encompassed by these definitions,
nor covered by the Protocol on Explosive Remnants of War [see: Landmines;
Booby-Traps]. This is because amended Protocol ii ccw already requires mea-
sures to be taken to reduce the risk that these weapons pose to civilians after the
end of active hostilities, including measures to clear such weapons after the end
of active hostilities and to take measures to protect civilian populations and
humanitarian organizations from their effects.
Although concepts of unexploded and abandoned ordnance are not new,
the reference to explosive remnants of war finds its roots in UN Resolutions and
Reports [e.g. unga Resolutions 3435 (xxx), 35/71 (1980) and 36/188 (1981)]. In
330 Explosive Weapons
1982, the unga requested the unsg and the UN Environment Programme “to
prepare a factual study on the problem of remnants of war […]” [unga Resolu-
tion 37/215 (1982), para. 4]. This study was then submitted to the unga by the
unsg in 1983 [unsg, Report: Problem of Remnants of War (1983)].
Louis G. Maresca – the views expressed are those of the author alone and do
Bibliography
Geneva International Centre for Humanitarian Demining, Explosive Remnants of War
(erw): A Threat Analysis (2002).
icrc, Explosive Remnants of War: A Study on Submunitions and other Unexploded
Ordnance (2000).
A. Westing, Explosive Remnants of War: Mitigating the Environmental Effects (1985).
Explosive Weapons. Munitions that cause damage to objects and injury to per-
sons primarily through blast and fragmentation effects, caused by their deto-
nation, are sometimes referred to as “explosive weapons”. Explosive weapons
come in various forms, including air-dropped bombs, artillery projectiles [see:
Artillery], cluster munitions, grenades, improvised explosive devices (ieds),
mines, mortar shells, missiles, and rockets.
When explosive weapons are used in populated areas, including in urban
centres, over 90% of those killed and injured are civilians [Action on Armed
Violence (aoav), Patterns of Harm – Five Years of Explosive Violence (2011–
2015), p. 3]. Explosive weapons cause severe injuries that are often fatal or
result in permanent disabilities. The use of explosive weapons in populated
areas damages housing and vital public infrastructure (e.g. for the provision of
water or health care) that can have significant reverberating effects on civilian
populations. It is also a major cause of displacement [UN Office for the Coordi-
nation of Humanitarian Affairs, Protecting Civilians from the Use of Explosive
Weapons in Populated Areas (2016)].
Explosive weapons are not defined or regulated as a category under interna-
tional law, but certain weapon-types are subject to express restrictions. Cluster
munitions, for example, are banned [see: Convention on Cluster Munitions
(2008)], as are anti-personnel landmines [see: Anti-Personnel Mine Ban
Convention (1997)]. Furthermore, the 2003 Protocol v ccw [see: Convention
on Certain Conventional Weapons (1980)] aims to prevent and remedy the
post-conflict humanitarian problems caused by explosive weapons.
Any use of explosive weapons as a means of warfare must comply with
the rules of ihl, including the prohibitions on indiscriminate and dispro-
portionate attacks [art. 51 api; see: Indiscriminate Attacks; Proportionality]
Fair Trial 331
and the rule on precautions in attack [art. 57 api; see: Precautions, Active].
In the view of the icrc, “explosive weapons with a wide impact area should
not be used in densely populated areas due to the significant likelihood of
indiscriminate effects” [icrc, International Humanitarian Law and the Chal-
lenges of Contemporary Armed Conflicts (2015), p. 49]. Wide-area blast and
fragmentation effects can result from a single munition having a large destruc-
tive radius (e.g. a heavy air-dropped bomb or missile), the inaccurate delivery
of a munition (e.g. an unguided rocket or mortar shell), the dispersal of multi-
ple munitions (e.g. by a multiple-barrel rocket launcher or a cluster munition)
or a combination of these factors [icrc, Expert Meeting Report: Explosive
Weapons in Populated Areas – Humanitarian, Legal, Technical and Military
Aspects (2015), p. 9].
To strengthen the protection of civilians from the effects of explosive weap-
ons, civil society actors, the unsg, and others are calling on armed actors to
revise operational practices and policies and on States to make a political com-
mitment to refrain from the use of explosive weapons with wide-area effects
in populated areas [International Network on Explosive Weapons (inew),
A Declaration to Prevent Harm from the Use of Explosive Weapons in Popu-
lated Areas (2016), para. 28].
Bibliography
Action on Armed Violence (aoav), Patterns of Harm: Five Years of Explosive Violence
(2011–2015).
icrc, International Humanitarian Law and the Challenges of Contemporary Armed
Conflicts (2015a), pp. 47–53.
icrc, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and
Military Aspects (2015b).
International Network on Explosive Weapons (inew), A Declaration to Prevent Harm
from the Use of Explosive Weapons in Populated Areas (2016).
UN Office for the Coordination of Humanitarian Affairs, Protecting Civilians from the
Use of Explosive Weapons in Populated Areas (2016).
unsc, Report of the unsg on the Protection of Civilians in Armed Conflict (2016),
paras. 24–28.
Fair Trial. The right to fair trial, as a fundamental human right, entails that no
person may be deprived of liberty without due process of law. This right is guar-
anteed by ihl through a number of specific rules that govern the process of
indictment and trial of persons detained during and for reasons connected to
332 Fair Trial
an armed conflict. The exact scope of the guarantees applicable varies depend-
ing on the circumstances in which a person is arrested and the status of such
person. The icrc has identified the right to fair trial as a rule of customary ihl
applicable in both international and non-international armed conflicts [rule
100 icrc Customary ihl Study]. Furthermore, ihrl on the right to fair trial
continues to apply, in principle, during armed conflict.
1. Fair Trial Guarantees in International Armed Conflicts

Prisoners of war are subject to a number of detailed and specific rules govern-
ing trial in gciii [arts. 99–108 gciii; see: Prisoners of War]. Prisoners of war
are subject to the laws and regulations in force in the armed forces of the de-
taining power [art. 82 gciii]. As a general principle, prisoners of war are pro-
tected from being charged with violations of ex post facto law [art. 99 gciii].
In respect of judicial procedures, prisoners of war must only be tried by a mili-
tary court, unless the existing laws of the detaining power expressly permit
the civil courts to try prisoners of war for the offence [art. 84 gciii]. In no
circumstances, however, may a prisoner of war be tried by a court which does
not offer the essential guarantees of independence and impartiality as gener-
ally recognised and, in particular, the procedure of which does not afford the
accused the rights and means of defence provided for in Article 105 gciii. Pris-
oners of war are also protected against double jeopardy or ne bis in idem [art.
86 gciii] and forced confessions [art. 99 gciii]. Judicial investigations must
be conducted as rapidly as possible so that trial takes place as soon as possible
[art. 103 gciii]. A prisoner of war is not to be confined while awaiting trial,
unless a member of the armed forces of the detaining power would be so con-
fined if he were accused of a similar offence, or if it is essential to do so in the
interests of national security and in no circumstances should this confinement
exceed three months [art. 103 gciii]. A prisoner of war is entitled to assistance
by one of his prisoner comrades, defence by qualified advocate or counsel by
his own choice, to the calling of witnesses and the services of an interpreter
[arts. 99(3), 105 gciii]. The only basis for an in camera trial session is if it is in
the “interest of State security”, otherwise the representatives of the protecting
power should be allowed to attend the trial [art. 105(5) gciii]. A right of ap-
peal or petition from any sentence in the same manner as the members of the
armed forces of the detaining power is guaranteed [art. 106 gciii].
A number of specific fair trial guarantees for protected persons in occupied
territories are laid down in gciv [see: Protected Persons]. A rule against the
application of retroactive law is provided in Article 67 gciv. Protected per-
sons may not be prosecuted for breaches of the law prior to the occupation
or during a break thereof, except for breaches of the laws and customs of war
[art. 69 gciv]. The right to a fair and regular trial before a competent court is
Fair Trial 333
guaranteed in Article 71 gciv. Accused persons must be promptly informed,

in writing, of the particulars of the charges against them, and shall be brought
to trial as rapidly as possible. Protected persons are also entitled to the right
to defence, including the right to present evidence and call witnesses, to be
assisted by a qualified advocate or counsel of their choice, and the use of an
interpreter [art. 72 gciv]. A convicted person has the right to appeal [art. 73
gciv]. The trial should be open to the representative of the protecting power,
unless it is necessary to hold in camera proceedings in the interests of the secu-
rity of the occupying power [art. 74 gciv]. A right against being put in jeopardy
twice for the same act or the same count is provided in Article 117 gciv.
Article 75 api sets out in detail the minimum judicial guarantees of fair trial
applicable to persons who are in the power of a party to the conflict and who
do not benefit from more favourable treatment under the GCs or api (i.e. per-
sons who do not qualify as prisoners of war under gciii, or protected persons
under gciv) [see: Fundamental Guarantees]. The icrc has described Article
75 api as sort of a “summary of the law” in the field of judicial guarantees [1987
icrc Commentary api, p. 865]. No sentence may be passed and no penalty
may be executed on a person found guilty of a penal offence related to the
armed conflict, except pursuant to a conviction pronounced by an impartial
and regularly constituted court respecting the generally recognised principles
of judicial procedure [art. 75(4) api]. Such principles include the right to be
informed without delay of the particulars of the offence and all the rights and
means of defence; the requirement of individual penal responsibility; the right
not to be subject to retroactive law; the presumption of innocence; the right
to be tried in one’s presence; not to be compelled to self-incrimination; to ex-
amine and call witnesses; not to be put in double jeopardy; to have the judg-
ment pronounced publicly; and the right to be advised of his judicial and other
remedies and of the time limits within which they must be exercised [arts.
75(4)(a)-(j) api]. Persons accused of war crimes or crimes against humanity
should be prosecuted and tried in accordance with the applicable rules of in-
ternational law and for those persons who do not benefit from more favourable
treatment under the GCs or api, they must be accorded the treatment under
Article 75 api, whether or not they have been accused of grave breaches [art.
75(7) api].
If a more favourable provision of an applicable rule of international law
grants greater protections than the guarantees listed in Article 75 api, the more
protective provision should apply [art. 75(8) api].
2. Fair Trial Guarantees in Non-International Armed Conflicts

Common Article 3 GCs prohibits “the passing of sentences and the carry-
ing out of executions without previous judgment pronounced by a regularly
334 Fair Trial
constituted court affording all the judicial guarantees which are recognized
as indispensable by civilized peoples” [see: Common Article 3; Regularly
Constituted Courts]. Courts have referred to Article 75 api for guidance in
identifying such guarantees [e.g. Judgment, Hamdan v Rumsfeld, U.S. Su-
preme Court, pp. 70–72].
More detailed protections for persons who are to be prosecuted for crimi-
nal offences related to the armed conflict are provided for in apii. The basic
principle is the right to be tried by a court “offering the essential guarantees of
independence and impartiality” [art. 6(2) apii]. An accused must be informed
without delay of the particulars of the offence alleged and be afforded all the
necessary rights and means of defence. There is a protection against being
prosecuted on the basis of retroactive law and the presumption of innocence
is guaranteed. In addition, accused are entitled to be tried in their presence
and shall not be compelled to self-incrimination. These protections are set out
in Article 6(2)(a)-(f) apii. If convicted, a person must be advised of his or her
judicial and other remedies and of the time-limits within which they may be
exercised [art. 6(3) apii].
3. Fair Trial Guarantees in ihrl

All persons detained during armed conflict are protected by the domestic law
of the detaining State and by ihrl [unga Resolution 45/111 (1990), principle
5]. Article 14(1) iccpr entitles all persons to “a fair and public hearing by a
competent, independent and impartial tribunal established by law”. Article 14
iccpr further provides for: the right to be presumed innocent; minimum ju-
dicial guarantees; the need to take account of the age; the desirability of pro-
moting the rehabilitation of juveniles; the right to compensation; and the
protection of ne bis in idem.
While Article 14 iccpr is not included in the list of non-derogable rights in
Article 4(2) iccpr, the UN Human Rights Committee (hrc) in General Com-
ment No. 29 has stated that “[a]s certain elements of the right to a fair trial are
explicitly guaranteed under ihl during armed conflict, the Committee finds
no justification for derogation from these guarantees during other emergency
situations” [hrc, General Comment No 29 – Article 4: Derogations during
State of Emergency, para. 16].
4. The Interplay between ihl and ihrl

As noted above, the fair trial protections of ihl and ihrl apply during armed
conflict. To the extent that the rules differ, the interplay between the two
sources of law may be governed by the doctrine of lex specialis, which entails
that the applicable ihrl is interpreted by looking at the meaning of terms
Flag State 335
within the context of ihl [Advisory Opinion, Legality of the Threat or Use of
Nuclear Weapons, icj, para. 25]. Another method of interpretation relevant
to such interplay is the complementarity paradigm, whereby courts apply the
norms that are either more detailed on a particular point at issue or offer better
protection. In practice, both these methods of interpretation are forms of a
systemic integration approach that would seek to build a systemic relationship
between the rules of ihl and ihrl, rather than merely according priority to
one rule over another [art. 31(3)(c) vclt; see: Judgment, Hassan v. The United
Kingdom, ECtHR, Grand Chamber, paras. 100–105].
Yasmin Naqvi – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Residual Mechanism for Criminal
Tribunals or the United Nations in general
Bibliography
Y. Arai-Takhashi, ‘Fair Trial Guarantees in Occupied Territory – the Interplay between
International Humanitarian Law and Human Rights Law’, in R. Arnold, N. Quénivet
(eds.), International Humanitarian Law and Human Rights Law: Towards a New
Merger in International Law (2008).
A. Bianchi, Y. Naqvi, International Humanitarian Law and Terrorism (2011), p. 374.
C. Swinarski, ‘On the Right to Fair Trial under International Humanitarian Law Instru-
ments’, in A. Byrnes (ed.), The Right to Fair Trial in International and Comparative
Perspective (1997).
D. Weissbrodt, ‘International Fair Trial Guarantees’, in A. Clapham, P. Gaeta (eds.), The
Oxford Handbook of International Law in Armed Conflict (2014).
Flag State. In accordance with the 1982 UN Convention on the Law of the Sea
(unclos) and customary international law, all ships “shall sail under the flag
of one State only” [art. 92(1) unclos]. There are also references in ihl to the
necessity of vessels having and displaying their flag [art. 43 gcii].
The designation of a flag – that is, the nationality of the vessel, or the flag
State – serves a number of purposes. First, it delineates which State has prima-
ry responsibility for implementing the duties set out in Article 94 unclos and
in other applicable rules of international law, including regulating the conduct
of the vessel and setting the requisite conditions for compliance with the wide
range of international rights and obligations that pertain to vessels. For ex-
ample, according to the International Tribunal for the Law of the Sea (itlos),
“[w]hile the nature of the laws, regulations and measures that are to be ad-
opted by the flag State is left to be determined by each flag State in accordance
with its legal system, the flag State nevertheless has the obligation to include in
336 Flag State
them enforcement mechanisms to monitor and secure compliance with these

laws and regulations” [Advisory Opinion, Request for an Advisory Opinion
Submitted by the Sub-Regional Fisheries Commission, itlos, para. 138]. The
second purpose fulfilled by the designation of a flag State is that this national-
ity provides the primary jurisdiction applicable in the vessel [e.g. arts. 91–92,
94, 97, 104 unclos]. Thus, for example, if an assault occurs in the vessel, it is
generally the law of the flag State that would apply to investigating and pros-
ecuting that offence. A third purpose of the designation of a flag State is to pro-
vide an appropriate jurisdiction to which requests regarding the vessel – such
as a request by a foreign warship to be permitted to board the vessel – may be
directed (often referred to as “flag State consent”) [e.g. art. 17(3) 1988 UN Con-
vention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances].
The existence of a flag State does not, however, mean that flag State consent
must be gained in every situation where an authorised vessel, most often a
warship or maritime law enforcement vessel, will interact with a vessel bearing
a different nationality [see: Warships]. In peacetime, whilst sovereign immune
vessels remain immune from interference on the high seas [e.g. arts. 95–96
unclos], other vessels may in some situations be stopped and boarded with-
out having first gained flag State consent. The five situations encompassed by
Article 110 unclos, the right of a coastal State to enforce its laws in certain
maritime zones (including in international waters via the Article 111 unclos
mechanism of hot pursuit), and enforcement of certain types of mandatory
unsc Chapter vii sanctions regimes, are examples. During armed conflict, bel-
ligerent warships are not required to seek flag State consent when exercising
belligerent rights such as visit and search over neutral vessels, that is, vessels
flying the flag of a State that is neutral in the armed conflict.
There are a number of points to note regarding the concept of a flag State.
The first, which is of general application, is that customary international law
and, inter alia, Article 91 unclos require that there “exist a genuine link be-
tween the State and the ship” in order for the grant of nationality to be effec-
tive. This phrase has been interpreted in a recent iconic case as follows: “[t]he
need for a genuine link between a ship and its flag State is to secure more effec-
tive implementation of the duties of the flag State, and not to establish criteria
by reference to which the validity of the registration of ships in a flag State may
be challenged by other States” [Judgment, M/V Saiga (no.2) (Saint Vincent and
the Grenadines v. Guinea), itlos, para. 83]. This view was reinforced in anoth-
er case, noting that the requirement for “a genuine link between the flag State
and the ship should not be read as establishing prerequisites or conditions to
be satisfied for the exercise of the right of the flag State to grant its nationality
to ships” [Judgment, M/V Virginia G (Panama v. Guinea-Bissau), itlos, para.
Foreign Fighters 337
110]. Second, of relevance during armed conflict at sea, whilst the display of
a false flag during peacetime would in most situations provide grounds for a
flag check boarding, it is an accepted ruse of war for warships and auxiliaries,
up until the time at which an attack is launched [e.g. para. 110(a) San Remo
Manual; see: Ruses of War].
Bibliography
R. Reuland, ‘Interference with Non-National Ships on the High Seas: Peacetime Ex-
ceptions to the Exclusivity Rule of Flag-State Jurisdiction’, 22 Vand. J. Transnat’l L.
(1989), p. 1161.
Forced Labour; see: Compelling a Protected Person to Serve in the Forces of

the Hostile Power; Workers; Slavery
Foreign Fighters. There is no generally accepted definition of who is a so-called

foreign fighter. The term is commonly used to describe individuals who join an
insurgency in a country outside their habitual place of residence or nationality.
It is, thus, normally reserved for those who fight with non-State armed groups
to the exclusion of those who join foreign State armed forces.
Foreign fighters are not a new phenomenon: the Spanish civil war, the war
in Afghanistan following the Soviet invasion, and the conflicts in the former
Yugoslavia and in Chechnya all attracted significant numbers of foreign fight-
ers. Yet, the term foreign fighter gained prominence in the aftermath of the at-
tacks of 11 September 2001, due to the presence of foreign fighters in the ranks
of the Taliban and al-Qaeda in Afghanistan. Subsequently, foreign fighters,
in particular Muslim foreign fighters, became associated with international
terrorism, because “most transnational jihadi groups today are by-products of
foreign fighter mobilizations” [T. Hegghammer, ‘The Rise of Muslim Foreign
Fighters. Islam and the Globalization of Jihad’, 35(3) International Security
(2010/11), p. 53] and the experience of foreign fighting is “one of the strongest
predictors” of individual involvement in domestic terrorism [T. Hegghammer,
‘Should I Stay or Should I Go? Explaining Variation in Western Jihadists’ Choice
Between Domestic and Foreign Fighting’, 107(1) American Political Science
Review (2013), p. 10].
Foreign fighters share certain features with mercenaries [see: Mercenar-
ies], but there are also important differences. The UN Working Group on the
Use of Mercenaries as a Means of Violating Human Rights and Impeding the
338 Foreign Fighters
Exercise of the Right of Peoples to Self-Determination (UN Working Group)

highlighted that, for foreign fighters, financial incentives are just one among
other motivating factors. Moreover, unlike mercenaries, foreign fighters may
be nationals of the conflict State. While scholars interested in the mobilisation
of individuals with no link to an on-going armed conflict tend to exclude co-
ethnic foreign fighters (i.e. those who share kinship or nationality links with
insurgent groups, such as members of the diaspora or dual citizens), contem-
porary foreign fighter polices and measures cover such individuals [unsg, Re-
port of the Working Group on the Use of Mercenaries as a Means of Violating
Human Rights and Impeding the Exercise of the Right of Peoples to Self-De-
termination (2015), paras. 13, 25–26]. The UN Working Group also underscored
that the “usage of the term fighter may be misleading”: it conveys the idea that
these individuals are directly participating in hostilities, but current usage cov-
ers “other forms of assistance, support or association with non-State armed
groups” [unsg, paras. 22, 24; see: Direct Participation in Hostilities].
Contrary to mercenaries, there are no particular provisions for foreign fight-
ers under ihl. During an international armed conflict, foreign fighters are
either combatants or civilians [see: Combatants; Civilians]. Nationality is
irrelevant for the determination of whether an individual is a combatant en-
titled to prisoner of war status, with the possible exception of nationals of the
detaining power [J.-M. Henckaerts, L. Doswald-Beck, Customary International
Humanitarian Law, Vol. i (2005), p. 395; see: Prisoners of War]. If they are not
entitled to prisoner of war status, foreign fighters are protected civilians un-
der gciv [see: Protected Persons]. During non-international armed conflicts,
Common Article 3 GCs requires humane treatment “without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or
any other similar criteria” with nationality falling under “any other similar cri-
teria” [2016 icrc Commentary gci, paras. 571–572; see: Common Article 3].
However, States retain the right to impose more or less severe sanctions on
non-nationals that participate in a non-international armed conflict [2016
icrc Commentary gci, paras. 571–572].
Another difference with mercenaries is that there is no general prohibi-
tion of foreign fighting under international law. Yet, against the background
of the large-scale foreign fighter mobilisation concerning the armed conflicts
in Syria and Iraq from 2013 onwards, States developed a special regime for a
particular kind of foreign fighters: the “foreign terrorist fighter”. Adopted un-
der Chapter vii, unsc Resolution 2178 (2014) provides for sweeping measures
to combat and suppress “foreign terrorist fighters”. This Resolution defines
“foreign terrorist fighters” as individuals who “travel to a State other than their
States of residence or nationality for the purpose of the perpetration, plan-
ning, or preparation of, or participation in, terrorist acts or the providing or
Freedom Fighters 339
receiving of terrorist training, including in connection with armed conflict”

[unsc Resolution 2178 (2014), Preamble, para. 8]. States are, inter alia, required
to have the ability to prosecute travel or attempted travel abroad for involve-
ment in terrorist acts, including to receive terrorist training, as well as funding
or otherwise facilitating such travel [unsc Resolution 2178 (2014), para. 6(a)-
(c)]. The unsc Resolution thus requires States to criminalize behaviour that
has not been previously defined in any international terrorism treaty.
However, Resolution 2178 (2014) does not provide a definition of terrorism
[see: Terrorism (International Law)]. Without such a definition, the distinc-
tion between “foreign terrorist fighter” and “foreign fighter” remains unclear
and largely depends on national definitions of terrorism [unsg, para. 92]. Sim-
ilarly, requiring States to adopt sweeping measures without providing a defini-
tion of terrorism has led to criticism that the unsc Resolution will lead to, or
at the very least, facilitate human rights abuses [L. Tayler, ‘Foreign Terrorist
Fighter Laws: Human Rights Rollbacks under UN Security Council Resolution
2178’, 18(5) International Community Law Review (2016), pp. 495 et seq].
Finally, the regime set up by Resolution 2178 (2014) blurs the lines between
terrorism and armed conflict, without due regard paid to the differences in
the regimes governing armed conflict and terrorism and how to harmonize
them [see: Anti-Terrorist Operations; Terrorist Organizations]. In December
2017, the Security Council adopted Resolution 2396 (2017), which focuses spe-
cifically on measures to address the threat posed by returning ‘foreign terrorist
fighters’.
Bibliography
T. Hegghammer, ‘The Rise of Muslim Foreign Fighters. Islam and the Globalization of
Jihad’, 35(3) International Security (2010/11).
T. Hegghammer, ‘Should I Stay or Should I Go? Explaining Variation in Western
Jihadists’ Choice Between Domestic and Foreign Fighting’, 107(1) American Political
Science Review (2013).
S. Krähenmann, ‘Foreign Fighters under International Law’, 7 Geneva Academy Brief-
ing (2014).
L. Tayler, ‘Foreign Terrorist Fighter Laws: Human Rights Rollbacks under UN Security
Council Resolution 2178’, 18(5) International Community Law Review (2016).
Freedom Fighters. During the Diplomatic Conference on the Reaffirmation

and Development of International Humanitarian Law Applicable in Armed
Conflicts on 8 June 1977, discussions were held in relation to several subjects
340 Freedom Fighters
that were a concern to developing countries: “guerrillas, freedom fighters, wars

of liberation, mercenaries, self-determination”. Although those States “came
with the specific purpose of legislating humanitarian laws which deal with
political realities”, they were “accused of using [the] law to make changes in
the political status quo and of subordinating humanitarian goals to overriding
political purposes” [A.J. Armstrong, Mercenaries and Freedom Fighters: The
Legal Regime of the Combatant under Protocol Additional to the Geneva
Convention of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (Protocol 1), 30 (125) jag J (1978), p. 127].
Due to the political situation many of them were dealing with during the
time the APs were adopted, the developing States did not seek to grant the
same protection to all types of non-State armed groups or actors. Mercenar-
ies and guerrillas, for example, were not to be given the same protection as
freedom fighters, since the former were considered to be struggling against the
political stability of those States or against entities fighting national liberation
wars [see: Mercenaries; Guerrilla]. To the contrary, freedom fighters were con-
sidered to be on the right side of such wars: fighting against other States or
against colonial domination, alien occupation or racist regimes.
As a result, the term freedom fighter is not a legal category under ihl and is
not contained in other treaties. Rather, it is a category used by scholars, mass
media, and/or politicians. Due to its political weight, this concept is used to
legitimize the struggle of groups of people and counter the label given to them
by others. In this regard, it is said that one man’s terrorist is another man’s
freedom fighter [L.F.E. Goldie, Profile of a Terrorist: Distinguishing Freedom
Fighters From Terrorists, 14(125) Syr. J. Int’l L. & Com. (1987), p. 126]. Similarly,
it has been held that today’s freedom fighter can be tomorrow’s legitimate
governor. As observed by one commentator “[t]he debate over whether given
groups or individuals were ‘terrorists’ or ‘freedom fighters’ was largely a prod-
uct of the insurgencies and counterinsurgencies of the Cold War and the end
of colonialism” [P. Policzer, Neither Terrorists Nor Freedom Fighters (2005),
p. 1].
Due to the lack of a legal definition and its double connotation, the expres-
sion freedom fighters has been used in different circumstances and for diverse
types of groups. These include groups fighting national liberation wars against
colonial domination and alien occupation and against racist regimes in the
exercise of their right of self-determination, but also illegal armed groups that
are parties to non-international armed conflicts.
In relation to the application of api to situations where freedom fighters
are involved, the question remains: “when is a liberation fighter truly a libera-
tion fighter, and when a mere ordinary criminal?” [J. Klabbers, Rebel with a
Cause? Terrorists and Humanitarian Law, 14(2) ejil (2003), p. 304]. The answer
Fundamental Guarantees 341
would determine api’s applicability to a particular situation. The difference

is relevant insofar as, if api is applicable, national liberation wars would be
international armed conflicts and, if captured, freedom fighters would enjoy
prisoners of war status [see: International Armed Conflict; Prisoners of War].
In non-international armed conflict, the application of ihl “never interna-
tionalizes the conflict or confers any status – other than the international legal
personality necessary to have rights and obligations under ihl – to a party
to that conflict” [M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in
War?, Part i, Vol. i (2011), Ch. 12, p. 28]. This is so, regardless of whether the
armed group is made up of persons considered to be rebels, militias, criminal
gangs, freedom fighters, insurgents, terrorists, bandits, warlords, etc.
Bibliography
A.J. Armstrong, Mercenaries and Freedom Fighters: The Legal Regime of the Combat-
ant under Protocol Additional to the Geneva Convention of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol i),
30(125) jag J. (1978).
C. Ewumbue-Monono, Respect for International Humanitarian Law by Armed Non-
State Actors in Africa, 88(864) irrc (2006).
L.F.E. Goldie, Profile of a Terrorist: Distinguishing Freedom Fighters from Terrorists,
14(125) Syr. J. Int’l L. & Com. (1987).
J. Klabbers, Rebel with a Cause? Terrorists and Humanitarian Law, 14(2) ejil (2003).
Fundamental Guarantees. The words fundamental guarantees refer to the

minimum rules of protection that any person who finds himself or herself in
the power of a party shall enjoy, according to ihl and ihrl. These fundamen-
tal guarantees apply as a minimum standard to all persons who do not, or no
longer, take part in hostilities, notwithstanding their status under the GCs or
the international or non-international character of the conflict. Indeed, these
fundamental rules reflect “elementary considerations of humanity”, as the icj
stated with reference to Common Article 3 GCs [Judgment, Case concern-
ing Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States), icj, para. 218]. As a result of this minimum standard, these
fundamental guarantees cannot be infringed by derogations and any other ap-
plicable rule that provides for greater protection of the individual under the
GCs, their APs, any other rule of international or domestic law supersedes.
342 Fundamental Guarantees
Common Article 3 GCs was included in the 1949 GCs to ensure that minimum
rules apply in conflicts “not of an international character” to the treatment of
persons who do not take a direct part in hostilities or who were placed hors
de combat, notably by sickness, wounds or detention [see: Common Article 3;
Hors de Combat]. These rules were reiterated and expanded in 1977 by Articles
4, 5(1) and 6 apii that govern non-international armed conflicts within the
meaning of Article 1 apii.
With regard to international armed conflicts, the absolute obligation to
treat humanely prisoners of war who were in the power of the enemy State was
already set forth in Article 76 of the 1863 Lieber Code and codified in Article
4 of the 1907 Hague Regulations. The requirement of humane treatment was
translated into specific prohibitions (murder, torture, ill-treatment, etc.) and
guarantees (fair trial) in the GCs for persons hors de combat and, as of 1949,
protected civilians [see: Protected Persons]. Civilians who are not protected
by gciv within the meaning of Article 4 gciv can nevertheless avail them-
selves of Common Article 3 GCs as the minimum standard.
Adopted in 1977, Article 75 api was explicitly drafted for the purpose of
granting a minimum of protection to all those who are arrested and/or de-
tained in relation to an international armed conflict, but are not considered
to be protected persons under the GCs or not fully protected by gciv because
of the derogations provided for in Article 5 gciv (notably spies, saboteurs
and civilians having taken a direct part in hostilities). As the minimum stan-
dard applicable in time of armed conflict, Article 75 api does not permit any
adverse distinction to be drawn (most notably based upon national origin). As
such, these fundamental guarantees would be applicable to the own nationals
of the party to the armed conflict. In the same vein, the scope of application
of Common Article 3 GCs and Articles 4, 5(1) and 6 apii is not, in principle,
restricted to individuals of the adverse armed group.
All these codified fundamental guarantees are reinforced or even supple-
mented by customary ihl and ihrl. As for the latter, even if the extent to
which ihl guarantees apply to the nationals of a party to an armed conflict
towards their own State (or to the members of an armed group towards their
own organization) remains controversial, ihrl does not make any distinction
based upon nationality or allegiance.
The fundamental guarantees that any individual in the power of a party to a
conflict shall be entitled to can be summed up into the principle of the humane
treatment of the person. The concept of humane treatment is firmly rooted in
ihl with regard to prisoners of war and, in ihrl, in relation to persons de-
prived of their liberty [for example, art. 10 iccpr]. The mere fact that the con-
cept is contained in both bodies of law provides guidance to understand it as
respect for the “inherent dignity of the human person” [preamble iccpr]. As a
Fundamental Guarantees 343
result, the following acts, including threats to commit such acts, are prohibited
under any circumstances and at any time in relation to any individual who does
not, or no longer takes part in hostilities: violence to life, health, and physical
or mental well-being [see: Wilful Killing and Murder; Seriously Endangering
the Physical or Mental Health or Integrity of Protected Persons], outrages
upon personal dignity [see: Outrage upon Personal Dignity], disrespect for
convictions and religious practices [see: Religious Convictions and Practic-
es], taking of hostages [see: Hostages], the passing and execution of sentences
without a fair trial affording all the essential judicial guarantees [see: Regularly
Constituted Courts], acts of terrorism [see: Terrorism (International Law)],
slavery [see: Slavery], and pillage [see: Pillage].
All these acts are also prohibited under ihrl and constitute war crimes
under the statutes of international criminal courts. Therefore, the case-law of
international human rights and criminal courts contributes, by interpreting
comparable or similar rules, to the clarification or even the development of the
components of fundamental guarantees under ihl. For instance, the notion of
“cruel treatment”, which is forbidden by Common Article 3 GCs, was defined
by the icty as “an intentional act or omission, that is an act which, judged
objectively, is deliberate and not accidental, which causes serious mental or
physical suffering or injury or constitutes a serious attack on human dignity”
[Judgment, Delalić et al., icty, Trial Chamber, para. 552]. In another case, the
icty deduced from this definition that the use of human shields constituted
“cruel treatment” [Judgment, Blaškić, icty, Trial Chamber, para. 186], add-
ing the prohibition of human shields to the list of fundamental guarantees
under ihl.
An issue may arise when divergences occur between an ihl concept and a
similar concept differently interpreted under ihrl by a human rights court.
For example, Article 66 gciv states that the occupying power may, in case of
a breach of the penal provisions promulgated by it, “hand over the accused
[civilians] to its properly constituted, non-political military courts, on condi-
tion that the said courts sit in the occupied territory”. Conversely, the trial of
civilians by military courts is considered by the ECtHR as failing to satisfy the
requirement of independence and impartiality of a tribunal under Article 6
echr, because of the close links between the executive power and the military
officers serving on these courts [Judgment, Cyprus v. Turkey, ECtHR, Grand
Chamber, para. 358]. However, in this specific example, it may not be a defini-
tive divergence since there may be situations where military courts are actually
independent and impartial.
alone and do not necessarily reflect the views of any institution the author is
affiliated with
344 Gender Violence
Bibliography
J.K. Kleffner, ‘Friend or Foe? On the Protective Reach of the Law of Armed Conflict.
A Note on the scsl Trial Chamber’s Judgment in the Case of Prosecutor v. Sesay,
Kallon and Gbao’, in M. Mathee, B. Toebes, M. Brus (eds.), Armed Conflict and
International Law: In Search of the Human Face (2013).
C. Laucci, ‘Customary International Humanitarian Law Study: Fundamental Guaran-
tees’, 6(1–2) Slovenian Law Review (2009).
Gender Violence. Gender (or “gender-based”) violence is the expression com-

monly used to refer to all forms of violence against women. It is based on, or
facilitated by, the traditionally subordinated status of women in society. In fact,
gender roles are deeply embedded in history, tradition, religion, and culture.
Against this discriminatory background, violence against women is one of the
most systematic and widespread human rights violations across the globe.
Gender violence encompasses physical, sexual, and psychological abuses
inflicted on a woman because of her gender. It can be perpetrated both by
State or non-State actors and it includes also traditional practices harmful to
women, such as honour killings, female genital mutilation, dowry-related vio-
lence, and burning or acid throwing. Trafficking of women is also a form of
gender violence. The notion of gender violence encompasses gender bias in
the administration of justice as well, and the structural and economic manifes-
tations of any threat to life or physical, sexual, or psychological harms inflicted
against women.
The prohibition of any form of discrimination based on gender is men-
tioned in all the main international human rights treaties, although explicit
reference to the subject of violence against women was made only in the 1990s.
In ihrl, at the universal level, the first two instruments related to the subject
are the 1967 Declaration on the Elimination of Discrimination against Women
and the Convention on the Elimination of All Forms of Discrimination against
Women (adopted on 8 December 1979 and entered into force on 3 Septem-
ber 1981). Although neither refers explicitly to violence against women, they
both contain provisions that spell out States’ undertakings to guarantee the
protection of women from any form of violence. In 1992, the Committee on the
Elimination of All Forms of Discrimination against Women (cedaw) adopted
General Recommendation No. 19 on violence against women, whereby it com-
ments and interprets certain provisions of the Convention and formulates rec-
ommendations to States on the measures to be adopted in favour of women
victims of violence. On 14 July 2017, the cedaw adopted General Recommen-
dation No. 35, updating General Recommendation No. 19 and recognizing that
Gender Violence 345
the prohibition of gender-based violence has become a norm of international

customary law.
Relevant is also the Declaration on the Elimination of Violence against
Women (adopted on 20 December 1993). Although not binding, it contains
certain provisions that reflect customary international law. It indicates that
violence against women includes rape, sexual abuse, sexual harassment and
intimidation, forced prostitution, and physical, sexual, and psychological
violence perpetrated or condoned by the State. Furthermore, it spells out
the measures to be undertaken by States to prevent and eradicate gender
violence.
At the regional level, mention must be made of the Inter-American Con-
vention on the Prevention, Punishment and Eradication of Violence against
Women (adopted on 6 September 1994 and entered into force on 3 May 1995),
and of the Protocol to the African Charter on Human and Peoples’ Rights
of Women in Africa (adopted on 11 July 2003 and entered into force on 25
November 2005).
Besides domestic tribunals, international human rights courts (especially
the ECtHR and the IACtHR) as well as UN Treaty bodies (in particular the
cedaw, but also the hrc, the Committee against Torture, the Committee on
the Elimination of Racial Discrimination, and the cescr) have developed a
vast case law on violence against women, spelling out in detail States’ duties,
including the positive obligation to prevent gender violence and to thoroughly
investigate, identify, prosecute, and sanction those responsible. These obliga-
tions apply also in cases of domestic violence.
Within the UN Special Procedures, two are particularly relevant for the sub-
ject of gender violence, namely the Special Rapporteur on Violence against
Women, its Causes and Consequences, and the Working Group on the Issue of
Discrimination against Women in Law and in Practice. Since 2009, the Office
of the Special Representative of the unsg on Sexual Violence in Conflict serves
as the UN spokesperson and political advocate on conflict-related sexual vio-
lence, and is the chair of the network UN Action against Sexual Violence in
Conflict.
In July 2010, the unga created the UN Entity for Gender Equality and the
Empowerment of Women (UN Women), with the aim to streamline resources
and to better coordinate, within the organisation, the mandates of those work-
ing on gender equality and the empowerment of women.
Violence against women, in particular rape and other forms of sexual vio-
lence [see: Rape and Sexual Violence], is frequently used in the context of
armed conflicts. Nevertheless, the prohibition of rape and other forms of sex-
ual violence is a norm of customary ihl, applying to both international and
346 Gender Violence
non-international armed conflicts [rules 93, 134 icrc Customary ihl Study].
The prohibition of rape and other forms of sexual violence is encompassed
by the principle of humane treatment [see: Inhuman Treatment], which is
the pillar of ihl treaties and prohibits such acts against any person in every
circumstance. Neither the 1949 GCs nor their APs use the expression gender
violence, but they contain several provisions that, although often indirectly,
deal with the subject [e.g. art. 12 gci; art. 12 gcii; art. 27 gciv; common art. 3
GCs; art. 76(1) api; art. 4 apii]. Another instrument of reference is the Dec-
laration on the Protection of All Women in Emergency and Armed Conflict
(adopted by the unga on 14 December 1974) which, although not binding,
reproduces some customary rules of international law.
Rape and other forms of sexual violence are not only criminal offences but,
under certain circumstances, they may amount to crimes under international
law. In this regard, among others, the icc Statute includes acts of rape and
other forms of sexual violence in the definition of genocide, crimes against
humanity, and war crimes respectively [arts. 6(b), 7(1)(g), 8(2)(b)(xxii), 8(2)
(e)(vi) icc Statute]. International criminal tribunals (in particular the icty
and the ictr) have extensively addressed cases of rape and other forms of
sexual violence. On 21 March 2016, the icc issued its first conviction elaborat-
ing on superior responsibility for rape as a crime against humanity [Judgment,
Bemba, icc, Trial Chamber]. On 8 June 2018, the Appeals Chamber reversed
that decision and acquitted Mr. Bemba.
Gender violence, especially during armed conflicts, is the subject of deep
concern for the UN. In this context, the unsc adopted three Resolutions of cru-
cial importance on the matter [unsc Resolution 1325 (2000), unsc Resolution
1820 (2008) and unsc Resolution 1888 (2009)], calling on all parties to armed
conflicts to take special measures to protect women from gender violence, and
requesting States to put an end to impunity for these crimes and provide ad-
equate redress to victims.
Gabriella Citroni – the views expressed are those of the author alone and do
not necessarily reflect the views of TRIAL International or any other institution
the author is affiliated with
Bibliography
L. Chappell, The Politics of Gender Justice at the International Criminal Court – Lega-
cies and Legitimacy (2015).
A. Edwards, Violence against Women under International Human Rights Law (2011).
M.A. Freeman, C. Chinkin, B. Rudolf, The UN Convention on the Elimination of All
Forms of Discrimination against Women: A Commentary (2012).
Geneva Convention i 347
Geneva Convention i. The First Convention adopted at the Diplomatic Confer-

ence of 1949 in Geneva concerns the protection of wounded and sick members
of the armed forces in land warfare. gci embodies the founding principle of
modern ihl that members of the armed forces, whether friend or foe, who are
hors de combat, including by sickness or wounds, and hence without means of
defence, must be protected and cared for. Individuals benefiting from protect-
ed status under gci must fulfil two conditions: they must be members of the
armed forces (or otherwise belong to one of the categories set forth in Article
13 gci) and they must be hors de combat, as a result of being wounded or sick
[see: Hors de Combat; Wounded and Sick].
The wounded and sick protected under gci must be respected and pro-
tected in all circumstances [art. 12 gci] and every provision of gci is geared
towards this purpose. For instance, the parties to the conflict have an obliga-
tion to search for and collect them, to protect them against pillage and ill-
treatment, and to provide for their adequate care at all times, particularly after
a military engagement [art. 15 gci]. They must also, for example, search for the
dead, prevent their remains from being despoiled, and respect certain condi-
tions regarding burial or cremation [arts. 15, 17 gci; see Dead Persons]. The
role of the local civilian population in collecting and caring for the wounded
and sick is also recognized [art. 18 gci].
However, the protection of the wounded and sick can only be effective if it
is coupled with protection owed to those assisting and caring for them. There-
fore, gci provides for special protection to medical units and establishments
[arts. 19–23 gci; see: Medical Units and Establishments], medical personnel
[arts. 24–32 gci; see: Medical Personnel], buildings and materials [arts. 33–34
GCI; see: Medical Equipment], and medical transports [arts. 35–37 gci; see:
Medical Transports]. This legal regime ensures that medical services can work
with minimal disruption and deliver adequate care to wounded and sick com-
batants on the battlefield.
As a sign of their special protected status, military medical personnel, build-
ings and transports are entitled to display the red cross, red crescent, or red
crystal, on a white background, as a protective device [arts. 38–44 gci; see:
Emblem].
Attacks against medical units and disruption of medical care in contem-
porary armed conflicts are tragic reminders that the protection owed to those
caring for the wounded and sick should never be taken for granted. The prin-
ciples and rules enshrined in gci, which form the backbone of modern ihl,
remain fully relevant in regulating warfare and its humanitarian consequenc-
es. Since 1949, technological progress has enhanced the fighting capacities of
348 Geneva Convention ii
belligerents, but also their ability to rescue and care for the wounded and sick
left behind on the battlefield. Reflecting timeless principles that can adapt to
evolving realities, gci’s provisions are fully adequate to these challenges. Their
effectiveness rests only on the willingness and concrete actions of belligerents
in ensuring compliance with the law.
Elvina Pothelet – the views expressed are those of the author alone and do not
Bibliography
J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The
M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011),
pp. 195–209.
Geneva Convention ii. The second Convention adopted at the Diplomatic

Conference of 1949 in Geneva concerns the protection of wounded, sick, and
shipwrecked members of the armed forces at sea. gcii rests on the same idea
as gci [see: Geneva Convention i], but extends to the naval battlefield [see:
Naval Warfare]. Combatants hors de combat, because of wounds, sickness, or
shipwreck, shall not, owing to their vulnerability and inability to defend them-
selves, be the object of attack, but shall be protected and cared for.
The same category of individuals protected under gci (members of the
armed forces lato sensu wounded and sick) are protected under gcii when at
sea [art. 13 gcii; see: Wounded and Sick]. In the naval war context, it was also
necessary to protect those placed hors de combat by another type of misfor-
tune: the shipwrecked [art. 13 gcii; Shipwrecked].
All gcii provisions ensure that wounded, sick and shipwrecked persons are
respected and protected in all circumstances [art. 12 gcii]. In order to achieve
this general objective, parties to the conflict have, for instance, an obligation,
after each military engagement, to search for and collect them, to protect them
against pillage and ill-treatment and to ensure their adequate care [art. 18
gcii]. As in land warfare, belligerents at sea must also search for the dead, and
respect them [arts. 18, 20 gcii; see: Dead Persons].
At sea, as on land, those rescuing and caring for the wounded, sick, and ship-
wrecked are protected from attack. Therefore, gcii attaches special protection
to military hospital ships, including converted merchant vessels [arts. 22–35
gcii; see: Hospital Ships; Merchant Vessels], their personnel [arts. 36–37
gcii; see: Medical Personnel], and medical transports [arts. 38–40 gcii;
see: Medical Transports]. In addition, it reiterates the protection of medical
Geneva Convention iii 349
establishments ashore granted under gci [art. 23 gcii; see: Medical Units and
Establishments].
Hospital ships and their personnel, as well as the religious and medical per-
sonnel of other ships, are entitled to display the protective emblem [arts. 41–43
gcii; see: Emblem].
Although naval battles, such as the ones in the Malvinas/Falklands conflict,
are becoming rare, there are real tensions over water space and resources in
several parts of the globe, which could well lead to armed conflicts waged
mainly at sea. Moreover, hostilities on land sometimes extend to the maritime
space, including by way of naval blockades [see: Blockade]. gcii can therefore
be relevant and even life-saving in a number of contemporary situations.
Bibliography
W. Heintschel von Heinegg, ‘The Law of Armed Conflict at Sea’, in D. Fleck (ed.),
The Handbook of International Humanitarian Law (2013).
J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.),
pp. 195–209.
Geneva Convention iii. The Third Convention adopted at the Diplomatic

Conference of 1949 in Geneva concerns the treatment of prisoners of war [see:
Prisoners of War]. It replaces the Convention Relative to the Treatment of
Prisoners of War of 1929. While capturing enemies is a lawful hostile measure
under ihl, those who have fallen into enemy hands and are, as a result, without
means of defence, must be respected and humanely treated. As the reasons for
capturing enemy combatants are radically different from those justifying crim-
inal detention (i.e. preventing the enemy from further taking part in combat,
as opposed to punishing them for committing a crime) [see: Deprivation of
Liberty; Internment], so too are the conditions of their captivity. gciii con-
tains a detailed set of rules governing this specific prisoner of war internment
regime [see: Deprivation of Liberty, Treatment].
Prisoners of war are combatants (or individuals otherwise falling under
Article 4 gciii) who have fallen into enemy hands [see: Combatants]. gciii
codifies the customary entitlement of belligerents to intern prisoners of war
until the end of active hostilities, with a view to prevent their further partici-
pation in hostilities [art. 21 gciii]. In this regard, they benefit from a detailed
350 Geneva Convention iii
regime of protection, governing their treatment and conditions of detention,

from the moment they fall into enemy hands, until their final release and re-
patriation, even if this occurs well after the end of the armed conflict [art. 5(1)
gciii; see: Release]. gciii contains a number of provisions prohibiting any
kind of inhuman treatment, including as a principle of general protection
[arts. 13–14 gciii], during questioning [art. 17 gciii], or as a form of reprisal
[art. 87(3) gciii]. It also builds upon and develops the Prisoners of War Con-
vention of 1929 by providing detailed regulation governing their maintenance
[art. 15 gciii], the beginning of their captivity [arts. 17–20 gciii], the location
and characteristics of their quarters [arts. 22–25 gciii], appropriate standards
of food and clothing [arts. 26–28 gciii], hygiene and medical attention [arts.
29–32 gciii], religious, intellectual and physical activities [arts. 34–38 gciii],
as well as conditions of transfer [arts. 46–48 gciii]. The treaty also specifies
the conditions under which prisoners of war can be forced to work [arts. 49–57
gciii] and their financial resources [arts. 58–68 gciii]. Issues of discipline
[arts. 39–42 gciii] and respect for military hierarchy [arts. 43–45 gciii] are
also regulated, as well as the relations between prisoners of war and the camp’s
authorities, including via the imposition of disciplinary or criminal sanctions
[arts. 78–108 gciii].
gciii also ensures that prisoners of war maintain relations with the exterior
including, upon capture, by means of capture cards [see: Capture Card] and
notification to the power of origin and, subsequently, by allowing correspon-
dence with relatives and relief shipments [arts. 69–77 gciii], as well as icrc
visits (which must be granted for all prisoners of war) [art. 126(4) gciii]. The
detaining power is also bound to comply with a number of provisions in case
of death of prisoners of war, handling of their wills and death certificate, burial
or cremation and inquiry in case of suspicious death [arts. 120–121 gciii].
gciii also regulates the release and repatriation of prisoners of war. Thus,
prisoners of war shall be released and repatriated without delay after the
cessation of active hostilities [arts. 118–119 gciii] – this duty is not subject to
reciprocity. They may however be repatriated earlier, if their medical condition
so requires [arts. 109–117 gciii], or in case of agreement between the parties
[art. 119(3) gciii]. Those facing criminal proceedings can be detained until the
end of the proceedings and, if necessary, the completion of their punishment
[art. 119(5) gciii].
A set of remarkably detailed provisions, the content of gciii is relatively
clear and rarely causes controversy. However, compliance with gciii re-
mains a challenge. Belligerents are reluctant to apply its rules to their enemies
(especially when they are not State armed forces, but militias or other armed
groups belonging to the enemy State) and deny them prisoner of war status
and/or treatment, such as in relation to so-called “unlawful combatants” [see:
Geneva Convention iv 351
Combatants; Prisoners of War]. The actual implementation of gciii rules

must also be subject to careful scrutiny by third parties. In this respect, the
visits of the icrc have been instrumental in monitoring and improving com-
pliance with the law by detaining powers [see: icrc Visit].
Bibliography
H. Levie, Prisoners of War in International Armed Conflict (1979).
G.P. Noone et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, 50(1)
Naval Law Review (2004).
S. Scheipers (ed.), Prisoners in War (2010).
Geneva Convention iv. The fourth Convention adopted at the Diplomatic

Conference of 1949 in Geneva concerns “the protection of civilian persons in
time of war”. While the 1907 Hague Regulations already contained some rules
protecting civilians in occupied territory [see: Hague Regulations (1907)],
the mass deportation and extermination, taking of hostages and pillage af-
fecting millions of civilians during World War ii tragically demonstrated the
need to enhance their protection. The idea of an international instrument
protecting civilians in the hands of the enemy, which emerged in the 1920s,
finally came into being at the 1949 Diplomatic Conference, with the adoption
of gciv.
Although gciv applies to civilians affected by armed conflicts in general, the
bulk of its provisions apply to civilians falling under the definition of protected
persons [see: Protected Persons]. In order to be a protected person, a civilian
must either be in the hands of a party to the conflict of which he/she is not a
national, on the basis of Article 4 gciv, or of a party to whom he or she does
not owe allegiance, pursuant to the icty jurisprudence [see Judgment, Tadić,
icty, Appeals Chamber, paras. 163–171].
All civilians, whether they are protected persons or not, are covered by
Part ii gciv. This Part aims “to alleviate the sufferings caused by war” [art. 13
gciv], by providing for: the constitution of zones limiting the effect of hos-
tilities for populations [arts. 14–15 gciv; see: Specially Protected Zones; Neu-
tralized Zones]; the protection of wounded and sick, civilian hospitals, their
staff, and civilian medical transports [arts. 16–22 gciv; see: Wounded and
Sick; Hospitals; Medical Personnel; Medical Transports], the passage of relief
aid to the benefit of the civilian population [art. 23 gciv; see: Humanitarian
Relief], and minimum protection to children and families [arts. 24–26 gciv;
see: Children].
352 Geneva Convention iv
By contrast, Part iii of gciv [arts. 27–141 gciv] is applicable to protected

civilians only. It consists of a coherent set of detailed rules, regulating various
aspects of the lives of protected civilians who are or may be affected by armed
conflict in different ways, directly or indirectly. Some rules apply irrespective of
the territory where the protected person is located [e.g. Part iii, Section i gciv;
Part iii, Section iv gciv, concerning the treatment of internees]; others are
territorially bound [e.g. Part iii, Section ii gciv, which applies to the territory
of the belligerent State; Part iii, Section iii gciv, which applies to occupied
territories].
Section i of Part iii contains provisions on prohibited forms of treatment
and on the responsibility of the power in whose hands protected persons are,
including in facilitating assistance by the protecting power and relief organisa-
tions. Section ii focuses on the protection of aliens in the territory of a bel-
ligerent, by regulating their right to leave, but also their means of existence if
they stay, as well as by providing restrictions on the security measures imposed
upon them. Section iii is applicable to occupied territories and contains an
extensive list of rules, reflecting the specific needs of inhabitants of a terri-
tory coming under the control of the enemy [see: Occupation]. This Section
clarifies and develops the Hague Conventions of 1899 and 1907 concerning the
laws and customs of war on land, in particular the 1907 Hague Regulations
[see: Hague Regulations (1907)]. gciv imposes a number of duties on the
occupying power, including the provision of essential supplies and services or
the protection of children, as well as restrictions on its actions, inter alia on
movements of persons, the destruction of property and the requisition of hos-
pitals, or its legislative powers. The treatment of detainees and guarantees re-
lated to the penal procedure in occupied territories are also covered, together
with limitations on the kind of security measures which may be taken against
protected persons.
Section iv of Part iii provides for a detailed regime of protection for pro-
tected civilians who are interned in the territory of a belligerent or the terri-
tory it occupies pursuant to the grounds for internment or assigned residence
in Articles 42 and 78 gciv, respectively [see: Internment; Assigned Resi-
dence]. Most aspects of the lives of civilian internees are subject to specific
rules [see: Deprivation of Liberty, Treatment], namely their place of intern-
ment [Chapter ii], food and clothing [Chapter iii], hygiene and medical at-
tention [Chapter iv], religious, intellectual, and physical activities [Chap-
ter v], personal property and financial resources [Chapter vi], administration
and discipline in internment camps [Chapter vii], relations with the exterior
[Chapter viii], penal and disciplinary sanctions [Chapter ix], transfer [Chap-
ter x], deaths [Chapter xi], and release, repatriation and accommodation in
Geneva Conventions 353
neutral countries [Chapter xii]. Finally, Section v of Part iii regulates the func-
tioning of the Information Bureau and the Central Agency.
Although non-international armed conflicts constitute the majority of to-
day’s conflicts, international armed conflicts and occupation are by no means
remnants of the past. Millions of civilians are living in occupied territories or
in the territory of belligerents and gciv remains the best international instru-
ment offering them a protection that was designed specifically for these types
of situations together with api. If gciv has proved so relevant for the past 60
years, it is also because continuous interpretive and implementing efforts have
contributed to ensure that it remains a living body of rules.
Bibliography
H.-P. Gasser, K. Dörmann, ‘Protection of the Civilian Population’, in D. Fleck (ed.),
pp. 211–248.
Geneva Conventions. The four GCs of 12 August 1949 are the main treaty in-
struments for modern ihl. With their three Additional Protocols, adopted
respectively in 1977 [see: Additional Protocol i; Additional Protocol ii] and
2005 [see: Additional Protocol iii], they aim to protect those not or no longer
taking part in hostilities, as well as to limit the use of violence to the extent
necessary to defeat the enemy.
The origins of the four 1949 GCs can be traced back to 1864, when 16 States
participating in a diplomatic conference on the initiative of the Geneva
Committee, adopted the Geneva Convention for the Amelioration of the Con-
dition of the Wounded in Armies in the Field on 22 August 1864 [see: Dunant,
Henry]. This Convention enshrined the principle that members of the armed
forces, who are hors de combat due to wounds or sickness, must be protected
and cared for, regardless of their nationality. As a corollary to this principle, the
1864 Geneva Convention recognized the neutrality and inviolability of medi-
cal personnel, establishments and units, and adopted the distinctive emblem
of the red cross against a white background, as a visual expression of such pro-
tection. The 1864 Geneva Convention was updated and developed in 1906 and
in 1929. The same year, on 29 July, the Convention Relative to the Treatment of
Prisoners of War was adopted. At that time, the need to extend the protection
to civilians affected by armed conflicts was already under discussion, and led
354 Geneva Conventions
to the drafting of a Convention on the protection of civilians in enemy hands

(approved by the International Conference of the Red Cross in Tokyo in 1934).
While the project was postponed by the outbreak of World War ii, the scale
of violence during the war tragically reinforced the need to reaffirm States’
commitment to respect and protect those affected by armed conflicts. In 1948,
the xviith International Conference of the Red Cross discussed and adopted
four draft conventions. The new set of Conventions was finally adopted during
the 1949 Diplomatic Conference in Geneva.
The four 1949 GCs not only enhanced the protection owed to wounded, sick
and shipwrecked combatants [gci and gcii; see: Geneva Convention i, Gene-
va Convention ii], as well as prisoners of war [gciii; see: Geneva Convention
iii], they also extended the protective scope of the law to civilians [gciv; see
Geneva Convention iv]. Whereas these four Conventions apply to internation-
al armed conflicts (opposing two or more States) [see: International Armed
Conflict], Common Article 3 GCs – often described as a “mini-convention”
within the Conventions – applies to non-international armed conflicts, oppos-
ing a State – or States – to an armed group, or opposing several armed groups
[see: Common Article 3; Non-International Armed Conflict].
Universally ratified, the 1949 GCs are binding on all States. Most of their pro-
visions are also largely recognized as forming part of customary international
law [see: Customary International Humanitarian Law]. They are enforced by
the same mechanisms as other rules of international law (related to State re-
sponsibility and individual criminal responsibility). In addition, they contain
their own implementation rules and mechanisms. For instance, they provide
for the obligation of all State parties to “respect and ensure respect” for the
Conventions [common art. 1 GCs; see: Common Article 1]; the dissemination
of the Conventions and their integration in military training and national legis-
lation [see: Dissemination]; the investigation and repression of violations (es-
pecially via the criminal repression of “grave breaches”) [see: Grave Breaches];
and the role of protecting powers and of the icrc [see: Protecting Powers].
While prospects for new ihl treaties in the near future are slim, the 1949
GCs remain as important as ever to regulate armed conflicts and their hu-
manitarian consequences. Whether they will stand the test of time depends
on continuous and scrupulous efforts to interpret their provisions in a way that
adapts to changing operational and legal environments, while remaining faith-
ful to their object and purpose.
Bibliography
J. Pictet, ‘The New Geneva Conventions for the Protection of War Victims’, 45(3) ajil
(1951).
Geneva Gas Protocol (1925) 355
Geneva Gas Protocol (1925). The Geneva Protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriologi-
cal Methods of Warfare (1925 Geneva Gas Protocol) was negotiated and signed
at the Conference for the Supervision of the International Trade in Arms and
Ammunition, convened in Geneva under the auspices of the League of Nations
from 4 May to 17 June 1925. As at November 2016, 140 States were party to this
Protocol.
The 1925 Geneva Gas Protocol built on the norm laid down in the Declara-
tion (iv, 2) concerning Asphyxiating Gases, adopted in The Hague on 29 July
1899, whereby States parties agreed to “abstain from the use of projectiles the
sole object of which is the diffusion of asphyxiating or deleterious gases”, but
which had failed to prevent widespread use of chemical weapons in World War
i. Indeed, the preamble to the 1925 Geneva Gas Protocol noted the intention
of States parties to ensure that the prohibition of use of “asphyxiating, poison-
ous or other gases, and of all analogous liquids materials or devices” would
become “universally accepted as a part of International Law, binding alike the
conscience and the practice of nations”.
Under the 1925 Geneva Gas Protocol, States parties declared that “so far as
they are not already Parties to Treaties prohibiting such use, accept this pro-
hibition, agree to extend this prohibition to the use of bacteriological meth-
ods of warfare and agree to be bound as between themselves according to
the terms of this declaration”. Thus, this Protocol extended the prohibition of
chemical weapons in international armed conflict to encompass also bacte-
riological warfare. However, more than 20 States made reservations to the 1925
Geneva Gas Protocol, effectively limiting the prohibitions to one of no first use.
For instance, the United States deposited a reservation in 1975 whereby “[t]
he Protocol shall cease to be binding on the government of the United States
with respect to the use in war of asphyxiating, poisonous or other gases, and
of all analogous liquids, materials, or devices, in regard to an enemy state if
such state or any of its allies fails to respect the prohibitions laid down in the
Protocol”. It was not until the adoption of the Chemical Weapons Convention
in 1993 that the prohibition of use of all chemical weapons as a method of
warfare was unequivocally endorsed [see: Chemical Weapons Convention
(1992)].
While the underlying principle at the time of the adoption of the 1925
Geneva Gas Protocol was the prohibition of means and methods of warfare
of a nature to cause superfluous injury [see: Superfluous Injury and Unneces-
sary Suffering], the outlawing of chemical warfare may also be understood in
terms of respect for the rule of distinction and the corresponding prohibition
on use of inherently indiscriminate weapons [see: Distinction; Indiscrimi-
nate Attacks]. In the preamble to a Resolution adopted in 1969, the unga
stated that biological and chemical weapons “are inherently reprehensible
356 Geneva Law
because their effects are often uncontrollable and unpredictable” [unga

Resolution 2603 A (xxiv) (1969)]. According to the icrc, although three States
voted against the Resolution and thirty-six abstained, the disagreement was
primarily in relation to herbicides and not the general principles [rule 71 icrc
Customary ihl Study].
with
Bibliography
D. Schindler, J. Toman, The Laws of Armed Conflicts (1988), p. 126.
Geneva Law. The expression Geneva law commonly refers to the body of ihl
rules governing the protection of persons who are in the power of a party to an
armed conflict. The most important stages of the development of this branch
of law all took place in Geneva, largely through the work of the icrc [see:
International Committee of the Red Cross].
Geneva law can be traced to Henry Dunant’s idea to provide protection
to wounded soldiers on the battlefield and to the medical personnel caring
for them. His efforts led to the adoption of the 1864 Geneva Convention for
the Amelioration of the Condition of the Wounded in Armies in the Field,
which was subsequently updated in 1906, 1929, and 1949 [see: Dunant, Henry].
The scope of protection of Geneva law has been gradually extended to other
categories of individuals affected by international armed conflicts, namely
wounded, sick and shipwrecked soldiers at sea [the Hague Convention (iii) on
Maritime Warfare of 1899; the Hague Convention (x) on Maritime Warfare of
1907; gcii; see: Geneva Convention ii], prisoners of war [Geneva Convention
on Prisoners of War of 1929; gciii; see: Geneva Convention iii], and civilians
in the hands of the enemy [see: GCIV; Geneva Convention iv]. These rules
share a common goal in that they govern the protection of specific categories
of protected persons, who do not or no longer participate in hostilities (hors
de combat), and who are directly or indirectly affected by armed conflicts [see:
Protected Persons]. Individuals in the hands of a party to a non-international
armed conflict are protected under Common Article 3 GCs [see: Common
Article 3].
Geneva law is often contrasted with “Hague law”. While Geneva law ap-
plies to individuals already affected by armed conflict, Hague law regulates
the use of means and methods of warfare, which may affect combatants and
non-combatants [see: Hague Law]. Due to their distinct aims, it has been
argued that “Hague law provides protection ahead of Geneva law, and focuses
Grave Breaches 357
on prevention” [F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844)
irrc (2001), p. 905].
This is a convenient dichotomy, but it must be nuanced. Both branches
of law ultimately share the same goal, are based on the same principles, and
cannot exist independently from each other. In practice, they have always
intersected and it is sometimes difficult to determine whether a rule pertains
to Hague law or Geneva law [Bugnion, pp. 907–910; Y. Dinstein, The Conduct
of Hostilities under the Law of International Armed Conflict (2016), pp. 21–24].
For instance, rules governing the protection of medical personnel and units,
which are located in Geneva law texts, also undeniably relate to the conduct of
hostilities [see: Medical Personnel; Medical Units and Establishments].
The distinction between Geneva law and Hague law has become even more
relative with the adoption of the two APs in 1977, which contain rules on the
protection of persons in the power of a party to the armed conflict, as well as
rules on the conduct of hostilities [see: Additional Protocol i; Additional Pro-
tocol ii]. In a landmark ruling, the icj established that “[t]hese two branches
of the law applicable in armed conflict have become so closely interrelated
that they are considered to have gradually formed one single complex system
[…]. The provisions of the Additional Protocols of 1977 give expression and at-
test to the unity and complexity of that law” [Advisory Opinion, Legality of the
Threat or Use of Nuclear Weapons, icj, para. 75]. Thus, while the Geneva law
and Hague law labels may be useful for didactic purposes, they, in fact, desig-
nate two largely overlapping and complementary sets of rules.
Bibliography
F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844) irrc (2001).
E. David, Principes de Droit des Conflits Armés (2012), pp. 471–630.
(2016), pp. 21–24.
R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008),
pp. 40–41.
Grave Breaches. Grave breaches are specified serious violations of ihl.

Whereas other violations of ihl must surpass a certain threshold of gravity to
amount to war crimes, grave breaches are considered inherently serious.
All four GCs of 1949 contain provisions enumerating offences constituting
“grave breaches” of each Convention [art. 50 gci; art. 51 gcii; art. 130 gciii;
art. 147 gciv]. Under the GCs, the grave breaches provisions prohibit wilful
358 Grave Breaches
killing, torture or inhuman treatment, biological experiments, wilfully causing

great suffering, or causing serious injury to body or health. Under gci, gcii,
and gciv in particular, grave breaches also include the extensive destruction
and appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly. Under gciii and gciv, grave breaches extend to
compelling a prisoner of war or a protected civilian to serve in the armed forc-
es of the hostile power, and wilfully depriving a prisoner of war or a protected
person of the rights of fair and regular trial prescribed in those Conventions
too. Finally, under gciv, grave breaches encompass unlawful deportation or
transfer of a protected person, the unlawful confinement of a protected person,
and the taking of hostages as well.
api of 1977 extends the application of the grave breaches regime to addi-
tional acts. Article 11 api identifies, as grave breaches, unjustified medical pro-
cedures seriously endangering the physical or mental health and integrity of
persons, in particular physical mutilations, medical or scientific experiments,
and removal of tissue or organs for transplantation. Article 85(3) api lists ad-
ditional violations as grave breaches, when committed wilfully and when caus-
ing serious injury to body or health, namely: making the civilian population or
individual civilians the object of attack; launching an indiscriminate attack,
affecting the civilian population or civilian objects, in the knowledge that such
attack will cause excessive loss of life, injury to civilians or damage to civilian
objects; launching an attack against works or installations containing danger-
ous forces, in the knowledge that such attack will cause excessive loss of life, in-
jury to civilians or damage to civilian objects; making non-defended localities
and demilitarised zones the object of attack; making a person the object of an
attack in the knowledge that he is hors de combat; and the perfidious use of the
distinctive emblem of the red cross and red crescent or other protective signs.
Moreover, Article 85(4) api identifies additional violations as grave breaches,
when committed wilfully, namely: the transfer by the occupying power of parts
of its own civilian population into the territory it occupies, or the deportation
or transfer of all or parts of the population of the occupied territory within or
outside this territory; unjustifiable delay in the repatriation of prisoners of war
or civilians; practices of apartheid and other inhuman and degrading practices
involving outrages upon personal dignity, based on racial discrimination; at-
tacking clearly recognised historic monuments, works of art, or places of wor-
ship, which constitute the cultural or spiritual heritage of people and to which
special protection has been given, causing, as a result, extensive destruction
thereof, when such objects are not located in the immediate proximity of mili-
tary objectives, or used by the adverse party in support of its military effort;
and depriving a person protected by the GCs or by api of the rights of fair and
Grave Breaches 359
regular trial. However, in comparison to the GCs, the grave breaches provisions
of api cover a broader range of protected persons [see: Protected Persons].
They, namely, extend to persons who are in the power of the adverse party or
who are interned, detained or otherwise deprived of liberty and to medical or
religious personnel and medical units or transports under the control of the
adverse party [arts. 11(1); 85(2) api].
Grave breaches of the GCs are also included in the jurisdiction of numerous
international criminal tribunals, namely the icty [art. 2 icty Statute], the icc
[art. 8(2)(a) icc Statute], the eccc [art. 6 eccc Law], as well as the Special
Panels for Serious Crimes in East Timor [Section 6(1)(a) untaet Regulation
No. 2000/15], the Supreme Iraqi Criminal Tribunal [art. 13(a) sict Statute], and
the Extraordinary African Chambers within the Courts of Senegal [art. 7(1)
eac Statute]. Certain grave breaches of api are included in the jurisdiction
of the icty [art. 3 icty Statute] and of the icc [art. 8(2)(c) icc Statute] too.
International jurisprudence has reaffirmed the customary status of the grave
breaches provisions, as well as the individual criminal responsibility for such
violations [Decision on the Defence Motion for Interlocutory Appeal on Juris-
diction, Tadić, icty, Appeals Chamber, paras. 79–84; Judgment, Duch, eccc,
Trial Chamber, paras. 400–408; Judgment, Habré, eac, Trial Chamber, para.
1620; see also: rules 156–157 icrc Customary ihl Study].
Besides the matter of inherent gravity, grave breaches differ from other viola-
tions of ihl in three other respects [see: War Crimes; Serious Violations of the
Laws and Customs of War]. First, the grave breaches provisions of the GCs and
of api are only applicable during an armed conflict of an international char-
acter, which include situations of State occupation, while violations of Com-
mon Article 3 GCs and violations of apii are exclusively relevant to conflicts
not of an international character [see: Non-International Armed Conflict]. As
noted by the icty Appeals Chamber, however, this distinction might be gradu-
ally eroding, in light of the evolution of modern day warfare and its impact on
State practice [Tadić, para. 83]. This could, in the future, bring about a change
in the opinio juris and lead to the application of the grave breaches regime
to armed conflicts not of an international character as well [see: Customary
International Law]. Second, the protection afforded under the grave breaches
regime does not apply generally to any civilian or civilian property, but is lim-
ited to those protected by each of the GCs and api. There is no distinction
among grave breaches and other violations of ihl, however, insofar as the per-
petrators are concerned. Any person, in principle, can commit a war crime,
including a grave breach [Tadić, paras. 80–81; Judgment, Blaskić, icty, Appeals
Chamber, para. 170; Judgment, Naletilić et al., icty, Appeals Chamber, paras.
110–121; see: Individual Criminal Responsibility]. Third, the GCs establish a
360 Guerrilla
mechanism to punish and prevent the commission of grave breaches, which

does not apply to other violations of ihl. This mechanism is commonly re-
ferred to as aut dedere aut iudicare (extradite or prosecute) or sometimes as
(a form of) universal jurisdiction. The GCs provide for an express obligation
on the High Contracting Parties to prosecute offenders who perpetrate grave
breaches. To this effect, parties are duty-bound to enact legislation establish-
ing criminal sanctions for individuals who commit or order the commission
of grave breaches [see: Penal Sanctions and Legislation]. The parties are also
under an obligation to search and bring these individuals before their courts,
regardless of their nationality. Alternatively, they may, in accordance with their
own legislation, hand over such individuals to another High Contracting Party,
provided that the latter has made a prima facie case for prosecution [art. 49
gci; art. 50 gcii; art. 129 gciii; art. 146 gciv]. Although api does not contain a
comparable mechanism for the prevention and punishment of grave breaches
of this instrument, it establishes an obligation for States parties and the par-
ties to the conflict to “repress grave breaches, and take measures necessary to
suppress all other breaches, of the [Geneva] Conventions or of this Protocol
which result from a failure to act when under a duty to do so” [art. 86(1) api].
Matteo Crippa – the views expressed are those of the author alone and do
Cambodia
Bibliography
K. Dörmann, Elements of War Crimes under the Rome Statute of the International
Criminal Court (2003), pp. 17–38.
icrc, Information and Observations on the Scope and Application of the Principle of
Universal Jurisdiction (2016).
G. Mettraux, International Crimes and the Ad Hoc Tribunals (2006), pp. 54–89.
K. Roberts, ‘The Contribution of the icty to the Grave Breaches Regime’, 7(4) jicj
(2009).
Guerrilla. Guerrillas are fighters, included in the category of irregular forces.

They often use methods of warfare such as sabotage and ambush.
In situations of international armed conflict, guerrillas may be protected
under ihl, provided they meet the relevant criteria required for members of
regular armed forces. Pursuant to Article 4(A)(2) gciii, in order to be eligi-
ble for prisoner of war status [see: Combatants; Prisoners of War] a guerrilla
must: belong to a party to the conflict and be commanded by a person respon-
sible for his subordinates; wear a distinctive sign recognizable from a distance;
Guerrilla 361
carry arms openly; and observe the laws and customs of war. With respect to
irregular forces, this provision is also considered to be customary international
law [rule 4 icrc Customary ihl Study]. On the other hand, no special allow-
ances or consideration appears to have been given to guerrilla fighters in gciv.
Guerrilla resistance movements existed at the time of the drafting of GCs.
However the drafters likely believed that the phenomenon of guerrilla fight-
ing could and should be limited in the future [1987 icrc Commentary api,
para. 1372]. When the APs were being debated and established, the issue of
guerrilla fighters was thus not a new one. However, by 1977, there had been a
significant increase in guerrilla activities in countries that had not yet achieved
independence and, thus, api acknowledged this and tried to reflect that
guerrilla movements operate differently from regular forces [see: Additional
Protocol i].
Specifically, api attempts to recognize that there are some situations in
which guerrillas cannot distinguish themselves throughout military operations
and still have any chance of success. Similarly to Article 4 gciv, Article 44 api
states that combatants are obliged to distinguish themselves from the civilian
population. However, the provision contains a controversial exception for situ-
ations where “owing to the nature of the hostilities an armed combatant can-
not so distinguish himself”. In such situations, the only requirement is that the
guerrilla fighter carries his arms openly during an attack and while engaged in
a military deployment preceding the attack [art. 44 api]. While a contentious
provision, the intention was to both increase the legal protection of guerrilla
fighters to the extent possible, and thereby encourage their compliance with
the laws and customs of armed conflict, while simultaneously not reducing the
protection of the civilian population [1987 icrc Commentary api, para. 1685].
This provision was contested during its drafting and remains controversial to
date, with some believing that it puts civilians at risk by eroding the principle
of distinction [icrc Customary ihl Study, p. 387, fn. 22].
There is, however, still an expectation that guerrillas will comply with ihl
as a whole, as set out in Article 4(A)(2)(d) gciii, despite the fact that they
may not be able to apply the rules in their entirety, given that some ihl pro-
visions require the State machinery for their full implementation [1987 icrc
Commentary api, para. 1688].
Although Article 44(3) api is not considered to be a norm of customary
international law, it is useful in understanding debates around guerrillas and un-
lawful combatants [see: Combatants]. It is also worth noting that in situations
where api does apply, the acceptance by guerrilla fighters of the requirement
of carrying arms openly during and prior to an attack – with the risk of being
identified as a legitimate military target from this moment onwards – is what
362 Hague Convention (iv) Concerning the Laws and Customs of War
distinguishes a guerrilla from a terrorist [1987 icrc Commentary api, para.

1712; see: Terrorism (International Law); Terrorist Organizations].
Unless a State is a party to api, the rule for guerrillas remains that combat-
ants are required to distinguish themselves from the civilian population while
engaged in an attack or when they are involved in a military operation prepar-
ing an attack. If they fail to do so, they lose the right to be treated as prisoners
of war [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humani-
tarian Law, Vol. 1 (2005), p. 384]. In order for a guerrilla (who would otherwise
have fit the criteria for combatant status) to lose such status (because this indi-
vidual is not distinguishing his or herself) he or she must be caught in the act.
That is, the assessment of whether a guerrilla is properly distinguishing him or
herself, will occur at the time of capture.
Guerrillas who have forfeited prisoner of war status, must nevertheless be
afforded the fundamental guarantees set out in Common Article 3 GCs and
Article 75 api [see: Fundamental Guarantees]. These are both considered to
be customary international law.
In non-international armed conflict, ihl provides even less guidance as to
the definition of guerrillas and how they are to be classified. Suffice it to say that
any guerrillas who are captured should be treated in accordance with Common
Article 3 GCs [see: Common Article 3]. Unlike international armed conflicts,
there is no prisoner of war status in non-international armed conflicts, so the
debate regarding the status of guerrillas is moot in this context [see: Prisoners
of War]. Therefore, they should be treated humanely as per Common Article 3
GCs but, nevertheless, unlike prisoners of war in international armed conflicts,
they can be tried and punished for their involvement in the armed conflict.
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1
(2005), pp. 384–395.
L. Olson, ‘Status and Treatment of Those Who Do not Fulfil the Conditions for Status
as Prisoners of War’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva
Conventions: A Commentary (2015).
Hague Convention (iv) Concerning the Laws and Customs of War on Land
(1907). One of the first steps towards the codification of the laws of war was
taken in 1874, when 15 European States adopted, but did not ratify, a declara-
tion concerning the laws and customs of war during the Brussels Conference.
Hague Convention (iv) Concerning the Laws and Customs of War 363
Following the Brussels Declaration, the Institut de Droit International (Insti-

tute) appointed a commission, with Gustave Moynier as Rapporteur, to study
the Brussels Declaration.
The work of this commission led to the drafting of the Manual on the Laws
and Customs of War, which was adopted unanimously by the Institute during
its session in Oxford in 1880. The Institute, as a scientific association, speci-
fied in the preface that it did not attempt to propose an international treaty,
but considered it as its duty to offer to Governments “a ‘Manual’ suitable as
the basis for national legislation in each State, and in accord with both the
progress of juridical science and the needs of civilized armies” [Preface 1880
Manual on the Laws and Customs of War]. The Institute furthermore clari-
fied that it did not attempt to explain what the law ought to be, but that the
Manual states clearly and codifies the accepted ideas, as far as it appeared
permissible and practicable at that time, having used as basis for the Manual
the Geneva Convention (1864), the Saint-Petersburg Declaration (1868), the
additional Draft Articles to the 1864 Geneva Convention (1868), the Brussels
Declaration (1874) including the Opinions expressed by the Institute during
its session in The Hague (1875), the Manuals which had been officially adopt-
ed by France, Russia and the Netherlands during that period, as well as the
Lieber Code (1863). The Oxford Manual of 1880 and the earlier Brussels and
Saint-Petersburg Declaration served as the basis for the 1899 and 1907 Hague
Conventions on War on Land and their annexed Regulations.
During the First Peace Conference in The Hague, which had as one of its pur-
poses to revise the Brussels Declaration, several Conventions were negotiated.
One of the conventions adopted was the 1899 Convention (ii) with Respect
to the Laws and Customs of War on Land and its annexed Regulations, which
entered into force in 1900. During the Second Peace Conference in 1907, an-
other set of conventions was negotiated [see: Hague Law]. The Conference
also revised the 1899 Convention (ii) and its Regulations resulting in the 1907
Hague Convention (iv), which differs slightly from its predecessor [see: Hague
Regulations (1907)]. Not all States parties to the 1899 Hague Convention (ii)
and its Regulations ratified the 1907 revised version, which means that they
are still bound by the former. Conversely, for those States that ratified both the
1899 and the 1907 instruments, the latter replaces the former [art. 4 1907 Hague
Convention (iv)].
International courts and tribunals have stated on several occasions that the
Hague Convention on Land Warfare and its annexed Regulations are declara-
tory of customary law and thus those States not party to either Convention
are bound by its rules as customary law [e.g. Judgment, Trial of the Major War
Criminals, imt, pp. 248–249; Judgment, Tokyo Trials (Hirota et al.), imtfe,
p. 366; Advisory Opinion, Legal Consequences of the Construction of a Wall in

the Occupied Palestinian Territory, icj, para. 89].
In line with the general view of warfare at that time, namely that the only
legitimate object of conducting war is to weaken the military forces of the en-
emy, the purpose of the Hague Convention was to revise the general laws and
customs of war and to “defin[e] them with greater precision or to confin[e]
them within such limits as would mitigate their severity as far as possible” [pre-
amble Hague Convention (iv)]. Nevertheless, during the 1907 Conference, it
had not proved possible to find mutual agreement on all circumstances to be
covered by the regulations, such as the position of members of the civilian
population taking up arms against an occupying power. Therefore, the Mar-
tens clause, first introduced by the 1899 Hague Convention (ii), was taken over
in the Preamble of the 1907 Hague Convention (iv) in a slightly revised version
[see: Martens Clause]. Article 2 of the 1907 Hague Convention (iv) contains
the “si omnes” or general participation clause, specifying that the Convention
and Regulations apply only if all parties to the conflict are party to the Conven-
tion (i.e. if a State not party to the Convention were party to the conflict, the
provisions would not apply to any party to that conflict). However, this clause
has fallen into disuse, as most of the provisions are considered customary law,
as declared during the Nuremberg Trials in response to the si omnes clause be-
ing invoked as defence [Trial of the German Major War Criminals, p. 65]. Fur-
thermore, Common Article 2(3) GCs, clarifying Article 25 of the 1929 Geneva
Convention, rendered the si omnes clause obsolete [see: Common Article 2].
Apart from some new procedural rules, Article 3 of the 1907 Hague Convention
(iv) was introduced to sanction violations of the Regulations. Subsequently,
Article 91 api reaffirmed Article 3 without modifying it, thus evidencing its
customary nature.
Bibliography
B. Baker, Hague Peace Conferences (1899 and 1907), in R. Wolfrum (ed.), Max Planck
Encyclopedia of Public International Law (2009).
Hague Convention for the Protection of Cultural Property (1954) and Its
Protocols. Cultural property is closely intertwined with the identity of a
population. Safeguarding it can help re-establish the identity of a broken com-
munity, linking its past with its present and future [K. Chamberlain, ‘Casualties
Hague Convention for the Protection of Cultural Property (1954) 365
of Armed Conflict: Protecting Cultural Property’, 17 yihl (2014), p. 190]. The

loss of cultural property is also a loss to humankind. As stated in the preamble
of the 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1954 Hague Convention), “damage to cultural prop-
erty belonging to any people whatsoever means damage to the cultural heri-
tage of all mankind, since each people makes its contribution to the culture of
the world”.
Drafted in the wake of large-scale destruction of cultural heritage during
World War ii and inspired by the 1949 GCs, the 1954 Hague Convention is the
paramount multilateral treaty for the protection of cultural heritage during
armed conflict. World War ii also saw the systematic pillage of works of art
from occupied territories, prompting the adoption of the 1954 Protocol, which
aims at preventing exportation of cultural property and providing for restitu-
tion of illegally exported objects from occupied territories. Against the back-
ground of the damage caused to cultural property during the first Gulf War
and the conflicts in the former Yugoslavia, and influenced by the APs, States
adopted a Second Protocol to the 1954 Convention in 1999 (1999 Protocol). It
seeks to “update and clarify” the 1954 Convention to better reflect “develop-
ments in warfare and the modern battlefield”.
To qualify for protection under the 1954 Convention, the cultural property
must be “of great importance to the cultural heritage of every people”. This
encompasses movable and immovable property, as well as buildings designed
to preserve or shelter movable cultural property and centres containing large
amounts of cultural property. The two core provisions require the “safeguard-
ing” of and “respect” for cultural property [art. 2 1954 Hague Convention]. With
respect to safeguarding, Article 3 requires States parties to take “appropriate
measures” in peacetime to safeguard cultural property in their territory against
the foreseeable effects of armed conflict. More guidance on what these mea-
sures might entail is provided for in the Second Protocol [art. 5 1999 Protocol].
The obligation to “respect” cultural property is set out in Article 4 and
applies in times of armed conflict. It requires refraining from: (a) using cultural
property or its immediate surroundings in a way that would expose it to risk
of damage or destruction; and (b) committing any act of hostility against cul-
tural property [see: Attacks against Historic Monuments, Works of Art and
Places of Worship]. However, this obligation can be waived “where military
necessity imperatively requires such a waiver” [art. 4(2) 1954 Hague Conven-
tion]. The Convention moreover requires States parties to prevent, prohibit,
and put an end to any form of theft, pillage, misappropriation or acts of van-
dalism against cultural property, and to refrain from requisitioning movable
cultural property on the territory of another party [art. 4(3) of the 1954 Hague
Convention]. Commentators disagree on whether this obligation has an exter-
nal element, i.e. entailing a duty to prevent theft, pillage, and misappropriation
not only by one’s own troops, but also by any other actor [A-M. Carstens, ‘The
Hostilities-Occupation Dichotomy and Cultural Property in Non-International
Armed Conflicts’, 52 Stan. J. Int’l L. (2016), pp. 21–22].
To notify the protected status of cultural property, the Convention intro-
duces the use of a distinctive emblem, that is the Blue Shield [arts. 6, 16, 17
1954 Hague Convention]. The use of this emblem is not compulsory and the
absence of a distinctive emblem does not relieve an opposing party of the
duty to protect that property during armed conflict. The opposing party must
thus determine for itself what structures and objects fall within the definition
contained in Article 1. In making this determination, O’Keefe considers that
the “safest course” is to “err on the side of caution” and suggests that every
example of cultural property described in that article should be protected
[R. O’Keefe, The Protection of Cultural Property in Armed Conflict (2006),
p. 111].
Article 19 provides that, in non-international armed conflicts, parties are to
“apply as a minimum the provisions of the present Convention which relate to
respect for cultural property”. While this clearly includes Article 4, doubt exists
as to which other provisions, if any, apply. Chamberlain opines that “[i]t would
be consistent with the object and purpose of the Convention to interpret ‘re-
spect for cultural property’ in the widest sense” [Chamberlain, p. 201].
Article 5 sets out obligations in the event of occupation [see: Occupation].
The occupying power must support the competent authorities of the occupied
territory to safeguard and preserve its cultural property. Where such property
is damaged by military operations and competent national authorities are un-
able to preserve it, the occupying power must take those measures itself in
cooperation with those authorities.
Part i of the 1954 Protocol, moreover, requires contracting parties to pre-
vent the exportation of cultural property outside a territory occupied by it.
This applies irrespective of whether the territory occupied belongs to another
contracting party or not. Furthermore, the 1954 Protocol requires any contract-
ing party to seize cultural property imported into its territory directly or indi-
rectly from any occupied territory. Any property seized must be returned to the
competent authorities at the close of hostilities and must never be retained as
war reparations. Part ii of the 1954 Protocol deals with cultural property com-
ing from the territory of one contracting party and deposited in the territory
of another to protect that property from the dangers of armed conflict. Such
property must be returned to the competent authorities of the territory from
which it came at the end of hostilities. This part applies in both international
and non-international armed conflicts.
Hague Law 367
While the 1954 Protocol has not been considered a great success, the prin-
ciple that an occupying power must prevent illicit export of cultural property
from the territory it occupies now constitutes customary international law
[rule 41 icrc Customary ihl Study]. Moreover, Part i of the Protocol has large-
ly been supplemented by Article 9(1) of the Second Protocol of 1999 which, in-
ter alia, obliges a party in occupation to prohibit and prevent “any illicit export,
or other removal or transfer of ownership of cultural property”.
The Second Protocol of 1999 increases the legal protection of cultural prop-
erty and addresses certain weaknesses of the 1954 Hague Convention. Impor-
tant features include enhanced provisions for the safeguarding of cultural
property in peacetime; the establishment of more stringent conditions for
invoking “imperative military necessity”; the establishment of detailed pre-
cautions in attack and against the effects of hostilities; provisions for the pro-
tection of cultural property in occupied territory; the establishment of a new
regime of “enhanced protection” to replace the “special protection” regime of
the 1954 Hague Convention; provisions for the establishment of jurisdiction
over and prosecution and extradition of persons committing serious violations
of the Protocol; and the establishment of a Fund and a Committee for the Pro-
tection of Cultural Property in the Event of Armed Conflict.
Ellen Nohle, Gilles Giacca – the views expressed are those of the authors alone
and do not necessarily reflect the views of any institution the authors are affili-
ated with
Bibliography
K. Chamberlain, ‘Casualties of Armed Conflict: Protecting Cultural Property’, 17 yihl
(2014).
R. O’Keefe, The Protection of Cultural Property in Armed Conflict (2006).
Hague Declaration (iv, 3) Concerning Expanding Bullets (1899); see: Dum-

Dum (Expanding) Bullets
Hague Law. The expression Hague law commonly refers to the body of ihl
rules regulating the conduct of hostilities, which includes limitations and pro-
hibitions on certain means and methods of warfare. This set of rules has been
codified in a number of Conventions adopted in The Hague.
Hague law can be traced back to an initiative by Czar Alexander ii of Rus-
sia that led to the adoption, in 1868, of the Declaration Renouncing the Use,
in Time of War, of Explosive Projectiles under 400 Grammes Weight, in Saint
Petersburg [see: Saint Petersburg Declaration (1868)]. It paved the way for
368 Hague Law
the 1899 Hague Peace Conference, which led to the adoption of six Hague Con-
ventions and Declarations: Convention (ii) on the Laws and Customs of War
on Land and its annexed regulations; Convention (iii) on Maritime Warfare;
Declaration (iv,1) prohibiting Projectiles from Balloons, and Other Methods of
Similar Nature; Declaration (iv,2) concerning Asphyxiating Gases; Declaration
(iv,3) concerning Expanding Bullets; and the Final Act of the International
Peace Conference. These instruments were revised and complemented by other
Conventions adopted at the second Hague Peace Conference in 1907: Conven-
tion (iii) on the Opening of Hostilities; Convention (iv) on War on Land and
its Annexed Regulations [see: Hague Convention (IV) Concerning the Laws
and Customs of War on Land (1907)]; Convention (v) on Neutral Powers in
case of War on Land; Convention (vi) on Enemy Merchant Ships; Conven-
tion (vii) on Conversion of Merchant Ships; Convention (viii) on Submarine
Mines; Convention (ix) on Bombardment by Naval Forces; Convention (x) on
Maritime Warfare; Convention (xi) on Restrictions of the Right of Capture;
Convention (xii) on the International Prize Court; Convention (xiii) on Neu-
tral Powers in Naval War; Declaration (xiv) on Explosives from Balloons; and
the Final Act of the Hague Peace Conference.
The rules and principles enshrined in the 1899 and 1907 Hague Conven-
tions were subsequently reaffirmed and developed in further treaties, includ-
ing the 1925 Geneva Protocol on Asphyxiating or Poisonous Gases, and of
Bacteriological Methods [see: Geneva Gas Protocol (1925)]; the 1954 Hague
Convention for the Protection of Cultural Property [see: Hague Convention
for the Protection of Cultural Property (1954) and its Protocols]; the 1972
Convention on the Prohibition of Biological Weapons [see: Biological Weap-
ons Convention (1972)]; and the 1980 Convention prohibiting Certain Conven-
tional Weapons and its Protocols [see: Convention on Certain Conventional
Weapons (1980)].
This body of law imposes limits on the conduct of warfare in two manners.
It sets forth rules outlawing or limiting the use of specific means or methods
of warfare (e.g. poisonous gases, expanding bullets). It also includes general
principles governing the choice of means or methods of warfare, such as the
prohibition to use means and methods of warfare which are of a nature to
cause superfluous injury or unnecessary suffering, enshrined in the Preamble
of the 1868 St. Petersburg Declaration [see: Superfluous Injury and Unneces-
sary Suffering], or manner in which attacks may be conducted [see: Distinc-
tion; Proportionality; Precautions (Active); Precautions (Passive)].
Currently, it is largely accepted that the majority of rules on the conduct of
hostilities are also applicable as a matter of customary law to both internation-
al and non-international armed conflicts. Moreover, even where no specific
Hague Regulations (1907) 369
treaty rule restricts or prohibits a particular form of conduct, it remains subject

to the “laws of humanity and the requirements of the public conscience”, as
expressed in the Martens Clause [see: Martens Clause].
Whereas a traditional distinction has been made between Hague law and
Geneva law, this distinction has limited practical relevance nowadays [see: Ge-
neva Law].
Bibliography
F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844) irrc (2001).
E. David, Principes de Droit des Conflits Armés (2012), pp. 273–471.
(2016), pp. 21–24.
R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008),
pp. 40–41.
Hague Peace Conferences; see: Hague Law; Hague Convention (iv) Concern-
ing the Laws and Customs of War on Land (1907); Hague Regulations (1907)
Hague Regulations (1907). The Hague Regulations (Regulations) are annexed

to the 1907 Hague Convention (iv) [see: Hague Convention (iv) Concerning
the Laws and Customs of War on Land (1907)]. They can be considered as
instructions directed to the armed forces of the States, “intended to serve as
a general rule of conduct for the belligerents in their mutual relations and in
their relations with the inhabitants” [preamble Regulations] and to limit “the
choice of means and methods of injuring the enemy in an international armed
conflict” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons,
icj, para. 75].
The Regulations are divided into three sections on: belligerents; hostilities;
and military authority over the territory of the hostile State. The section on the
internment of belligerents and the care of the wounded in neutral countries
that previously appeared in the 1899 version had been included in the 1907
Hague Convention (v) instead. Some notions of importance will be shortly
touched upon, without prejudice to the continued relevance of other notions
(especially the rules relating to flags of truce and armistices).
The section on belligerents specifies the status of belligerents, which is cen-
tral as, once a person falls within this definition, the laws, rights and duties of
war apply [see: Combatants]. It also provides for the right to be recognized
370 Hague Regulations (1907)
and treated as prisoner of war in case of capture by the enemy [see: Prisoners
of War]. Categories of belligerents include: (i) the armed forces, militia and
volunteer corps, when fulfilling the conditions of having a responsible com-
mand, being recognizable, carrying arms openly, and respecting the laws and
customs of war; (ii) persons taking part in a levée en masse, if they carry arms
openly and respect the laws and customs of war [see also: art. 4 gciii; arts.
43–44 api; Combatants; Civilians]. The treatment of prisoners of war is also
regulated [arts. 4–28 Hague Regulations]. The 1929 Geneva Convention on
prisoners of war completed the provisions of the Regulations, providing more
detail and precision and attempted to close protection gaps. The 1949 gciii
replaced the 1929 Geneva Convention and again complemented the Regula-
tions [art. 135 gciii]. Many articles correspond with each other, but gciii is
nevertheless much more independent from the Regulations than was the case
for the 1929 Geneva Convention [art. 135 gciii; 1960 icrc Commentary gciii,
pp. 636, 640].
Section ii, Chapter 1 on the conduct of hostilities specifies the limitations
with regard to the means and methods of warfare. First, Article 22 states that
“the right of belligerents to adopt means of injuring the enemy is not unlim-
ited”, whereas Article 23 states that it is prohibited to inflict unnecessary suffer-
ing, listing concrete acts, such as the prohibition to kill or wound a person hors
de combat, to declare that no quarter will be given, and to employ weapons
that cause unnecessary suffering [see: Superfluous Injury and Unnecessary
Suffering; Quarter]. While Article 23(b) prohibits killing or wounding indi-
viduals “treacherously”, Article 24 specifies that ruses of war are permissible
[see: Ruses of War; Perfidy]. Article 23(g) on the destruction of enemy prop-
erty brings in the military necessity concept, stating that such a destruction
or seizure is prohibited “unless […] imperatively demanded by the necessi-
ties of war” [see: Military Necessity]. Article 25, on the attack of undefended
towns, differs slightly from the 1899 version through the addition of the words
“by whatever means”, which was meant to take into account the technologi-
cal developments of that time. This concept has evolved to the rule that only
military objectives may be attacked [see: Distinction; Military Objectives].
Article 26 lays down a precautionary measure whereby authorities should be
warned [see: Precautions, Active]. Articles 27 and 56 aim at protecting cul-
tural property, which was later supplemented by a dedicated instrument [see:
Hague Convention for the Protection of Cultural Property (1954) and its Pro-
tocols]. Furthermore, Articles 28 and 47 contain the prohibition of pillage [see:
Pillage]. The Section on hostilities also covers spies, flags of truce, capitula-
tions and armistices [see: Spies; Armistice].
Hors de Combat 371
Section iii regulates occupation, laying down the definition in Article 42 that
“territory is considered occupied when it is actually placed under the authority
of the hostile army” and that it “extends only to the territory where such author-
ity has been established and can be exercised” [see: Occupation]. Occupation
can be understood as a status quo and of a temporary nature, which is why the
rules relating to occupation are focused on the continuance of everyday life
with as little changes as possible. Article 43 of the Regulations thus explains
that the territory has to be administered, as far as possible, as before the occu-
pation. Rules on the legal position of the inhabitants requiring respect for cer-
tain rights [art. 46 Regulations] are laid down, pointing out that no allegiance is
owed [art. 45 Regulations]. The principle of individual responsibility is provid-
ed for in Article 50, which prohibits collective sanctions by the occupying State
against the population in response to criminal acts committed by an individual
[Judgment, re Rauter, Dutch Special Court of Cassation, pp. 133–137]. The sub-
sequent Article 33 gciv is based on Article 50 of the Regulations and clarifies
further the prohibition of collective penalties [see: Collective Punishment]. It
is also worth noting that Article 33(3) gciv includes the prohibition of repri-
sals against protected persons and their property, which was not mentioned in
the Regulations, even though the Brussels Declaration and the Oxford Manual
had mentioned the need to cover reprisals [see: Reprisals against Civilians].
Moreover, rules on requisition, contributions and the seizure, destruction and
administration of property are laid down in Articles 48 to 56 of the Regulations
[see: Requisitions; Property, Destruction and Appropriation/Seizure of].
In sum, the 1949 GCs, the 1977 Aps, as well as other ihl treaties and custom-
ary law have reaffirmed, given precision and, in some cases, modified the Regu-
lations in order to strengthen and improve protection under ihl but, overall,
the Regulations are still relevant today, both as treaty and as customary law.
Health; see: Seriously Endangering the Physical or Mental Health or Integrity

of Protected Persons; Public Health and Hygiene
Hors de Combat. The protection of persons hors de combat (which literally

translates as “outside the fight”) is one of the bedrocks of ihl. It arises out of
one of the fundamental tenets of this body of law, namely the recognition that
372 Hors de Combat
warfare ought to be limited to weakening the military forces of the enemy [see:
International Humanitarian Law]. Considering that a person hors de combat
no longer poses a military threat, harming or killing such a person exceeds this
objective [see: Quarter].
The need to protect persons hors de combat has been recognised in a num-
ber of historical ihl documents [e.g. art. 71 Lieber Code; art. 23(c) Hague Regu-
lations]. Common Article 3 GCs and Article 41 api currently enshrine such
protection. Persons hors de combat are, furthermore, protected under custom-
ary ihl in international and non-international armed conflict alike [rule 47
According to Article 41(2) api and Rule 47 icrc Customary ihl Study, a
person may be hors de combat or should, in the circumstances, be recognised
as such for a number of reasons. First, this is the case where a person is “in the
power” of an adverse party. Combatants who have “fallen into the power” of
the enemy are protected under gciii [see: Prisoners of War]. However, the
formulation relating to persons hors de combat is broader. It may, therefore,
also encapsulate situations that would fall outside of gciii protection [1987
icrc Commentary api, para. 1612]. gciii protection nevertheless applies as
soon as it is established that a combatant has “fallen into the power” of the en-
emy, including the obligation of humane treatment [see: Deprivation of Lib-
erty, Treatment]. Second, those who clearly express an intention to surrender
are considered to be hors de combat. Third, a person is hors de combat if he or
she has been rendered unconscious or is otherwise incapacitated by wounds
or sickness and, as a result, is incapable of defending him- or herself. In this
regard, there is overlap with the protection afforded to the wounded and sick
[see: Wounded and Sick]. Although not mentioned in Article 41 api (in con-
trast to Rule 47 icrc Customary ihl Study), such protection is considered to
extend to the shipwrecked too [1987 icrc Commentary api, para. 1620; see:
Shipwrecked].
Unlike Article 41 api, Common Article 3 GCs distinguishes between “mem-
bers of armed forces who have laid down their arms and those placed hors
de combat”, although both categories of persons remain protected under this
provision. Common Article 3 GCs otherwise mentions similar or identical situ-
ations in which a person is considered to be hors de combat, that is “sickness,
wounds, [and] detention”. It also adds “any other cause”, which may signal a
wider approach to hors de combat status. Any divergence that may arise with
Article 41 api is, in any event, diminished by the corresponding rule of custom-
ary ihl.
Persons hors de combat are not to be made the object of attack [see: Attacks
against Civilians and Persons Hors de Combat]. The reference to “persons”
Hospital and Safety Zones and Localities 373
indicates a wide reach and, therefore, “both regular combatants and those
combatants who are considered to be irregular, both those whose status seems
unclear and ordinary civilians” are entitled to protection [1987 icrc Commen-
tary api, para. 1606; see Combatants; Civilians]. Violation of this rule is a grave
breach of api [art. 85(3)(e) api; see: Grave Breaches] and is punishable before
the icc [art. 8(2)(b)(vi), 8(2)(c)(i)-(ii) icc Statute].
Since the absence of a military threat is the rationale underlying the pro-
tection afforded to persons hors de combat, it must vice versa hold true that
such protection is lost if this rationale becomes inapplicable. Thus, measures
permitted under ihl may be employed against a person hors de combat who
engages in any hostile act or attempts to escape. Furthermore, feigning hors de
combat status may amount to an act of perfidy in certain circumstances [art.
37(1)(a)-(b) api; rule 65 icrc Customary ihl Study; see: Perfidy].
Bibliography
D. Banaszewska, ‘Hors de Combat’, in R. Wolfrum (ed.), Max Planck Encyclopedia of
Hospital and Safety Zones and Localities. These types of zones are meant
to be permanent places of refuge, where certain categories of persons can
find protection from the effects of an armed conflict [see also: Specially Pro-
tected Zones]. Although gci and gciv envisage hospital and safety zones
and localities in international armed conflicts only, they may be set up in
non-international armed conflicts as well by means of special agreements
[common art. 3(3) GCs; Special Agreements].
Hospital zones and localities under gci aim to protect wounded and sick
military personnel, persons entrusted with the organisation and administra-
tion of such areas, and medical personnel [art. 23(1) gci; see: Combatants;
Wounded and Sick; Medical Personnel; Hospitals]. Hospital and safety zones
and localities under gciv, in turn, are designed for the protection of wounded
and sick civilians, aged persons, children under fifteen, expectant mothers,
and mothers of children under seven [art. 14(1) gciv; see: Civilians; Children;
Women]. It should be noted that, in practice, the same area may host all these
categories of persons. The local civilian population may also find refuge in
such zones [2016 icrc Commentary gci, paras. 1916–1926].
Hospital and safety zones and localities may be established in peacetime
or after the outbreak of hostilities. As most specially protected zones, it is
374 Hospital and Safety Zones and Localities
necessary that the parties to the conflict adopt an agreement to create a new
zone or recognise an existing one; in this respect, they may draw on the Draft
Agreements annexed to gci and gciv. While ihl does not oblige States to
establish hospital and safety zones and localities, it envisages that both the
protecting powers and the icrc may lend their good offices for the institu-
tion or recognition of such zones [art. 23(2)-(3) gci; art. 14(2)-(3) gciv; see:
Protecting Powers].
Hospital and safety zones and localities may be set up either in a State’s
national territory or in occupied territory. Being permanent places of refuge,
they must be located far from the battlefield or in areas that, foreseeably, will
not be essential to the military effort. It is also fundamental to delimit and
mark them clearly. Military activities of any kind must not take place in such
zones, which must be completely de-militarised and not be militarily defended
[arts. 2, 4–6 gci Annex 1].
Hospital and safety zones and localities cannot be the object of attacks. This
rule applies in both international and non-international armed conflicts as a
matter of customary law [rule 35 icrc Customary ihl Study]. A zone that fails
to fulfil the requirements set in gci or gciv must anyway be protected as a
civilian object, unless it qualifies as a military objective [Military Objectives;
Civilian Objects]. Similarly, persons sheltered therein enjoy the protection
afforded to civilians and persons hors de combat [see: Protected Persons,
Civilians, Hors de Combat].
Under the icc Statute, it is a war crime to attack hospital zones and locali-
ties [art. 8(2)(b)(ix), 8(2)(e)(iv) icc Statute]. Furthermore, targeting hospital
and safety zones and localities may amount to the war crimes of attacking
civilians and civilian objects or attacking buildings and personnel employing
protected emblems; it also constitutes a criminal offence under the domestic
laws of several countries [icrc Customary ihl Study, p. 119].
One example of a protected area explicitly based on Article 23 gci and 14
gciv was created in Osijek and the surrounding areas in December 1991, by
agreement between Croatia and the Socialist Federal Republic of Yugosla-
via. Although not envisaged by gcii, the UK and Argentina created an area
equivalent to a hospital zone at sea during the 1982 Falkland/Malvinas conflict
(so-called Red Cross Box). Protected areas in non-international armed con-
flicts, akin to hospital and safety zones and localities, have been established
during the conflicts in Bangladesh (1971), Chad (1980), and Lebanon (1983).
While practice shows that gci and gciv are not strictly applied in the creation
of protected areas, the concepts envisaged therein are used as terms of refer-
ence [2016 icrc Commentary gci, paras. 1886–1887].
Vito Todeschini – the views expressed are those of the author alone and do not
Hospital Ships 375
Bibliography
B.N. Patel, ‘Protection Zones in International Humanitarian Law’, 39 Indian Journal of
Geneva Conventions: A Commentary (2015), pp. 370–374.
Hospital Ships. Hospital ships have long been considered a proper subject for
specific regulation in ihl. They were contemplated in The Hague Convention
of 1899, whereas The Hague Convention of 1904 on Hospital Ships dealt with
their exemption from many dues and taxes in ports. The fullest elucidation of
the legal regime surrounding hospital ships, prior to gcii, is found in Article 8
of The Hague Convention x of 1907.
A hospital ship is a vessel specifically built or equipped “solely with a view to
assisting the wounded, sick and shipwrecked, to treating them, and transport-
ing them […]” [art. 22 gcii; see: Wounded and Sick; Shipwrecked]. There are
only a very few States that currently maintain dedicated and declared hospital
ships within their maritime forces, and it is vital to distinguish a hospital ship
from other multi-role vessels, which may incorporate high level medical facili-
ties, but which are not entitled to the designation (and in most cases, the pro-
tections) of a hospital ship. In addition to States, “National Red Cross and Red
Crescent Societies […], officially recognized relief societies or private persons
may operate, under the control of a Party to the conflict, a hospital ship for
the benefit of wounded, sick or shipwrecked members of armed forces at sea”
[arts. 22, 24–25 gcii; 2017 icrc Commentary gcii, para. 2031].
Only a hospital ship that meets the definitional, notification, usage/con-
duct, and marking requirements set out in gcii [see, inter alia, arts. 22, 43
gcii; art. 22 api] is entitled to this status. However, other vessels may also be
entitled to a functionally equivalent level of protection, including coastal res-
cue craft [art. 27 gcii; see: Coastal Rescue Craft] and “medical transports” and
“other medical ships and craft” [e.g. arts. 38–40 gcii; art. 23 api; see: Medi-
cal Transports]. However, the presence of a sick-bay in a warship does not
entitle that vessel to any alteration of status [art. 28 gcii], although the sick-
bay itself is entitled to protection as a medical facility [arts. 28, 34–35 gcii; see:
Sick-Bays].
Hospital ships are, of course, exempt from attack, and their loss of protec-
tion is strictly regulated [arts. 22, 34–35 gcii; paras. 47–51 San Remo Manual;
see: Acts Harmful to the Enemy]. They are, however, subject to certain mea-
sures of control by the belligerents as a quid pro quo to this specially protected
status. For example, they are subject to the powers of search (to ensure they
are being used for their proper purpose), and control (such as by designating
376 Hospitals
a course to steer, and control of communications), by the belligerent parties

[art. 31 gcii].
Two interesting, and still vexing, points of law related to hospital ships per-
sist. The first is the requirement in art. 34 gcii that – as a condition of their
special protection – “hospital ships may not possess or use a secret code for
their wireless or other means of communication”. This is problematic in that
the use of most modern communications systems (such as satellite commu-
nications) involve as a matter of course the encryption of data, even for rou-
tine communications such as sending and receiving weather reports. However,
as the icrc has sensibly noted, the focus of this condition was, and remains,
a “prohibition against using means of communication, irrespective of the
technology involved, for military purposes and ‘acts harmful to the enemy’”
[2017 icrc Commentary gcii, paras. 2389–2403]. The second vexing point
of law relates to the arming of hospital ships for self-defensive purposes. One
manifestation of this ongoing interpretive debate is the question as to whether
this limitation allows the use of chaff and other passive/deflective systems, but
prohibits the arming of hospital ships with Close-in Weapons Systems or other
active missile defensive systems.
Bibliography
D.L. Grimord, G.W. Riggs, ‘The Unique and Protected Status of Hospital Ships under
the Law of Armed Conflict’, in R.B. Jacques (ed.), Issues in International Law and
Military Operations, 80 International Law Studies (2006).
Hospitals. A hospital can be colloquially defined as “a place where injured or

sick people are given care or treatment” [Merriam Webster; Oxford English
Dictionary]. There is no legal definition of a hospital under ihl, but they may
also fall under the broader term “fixed and mobile medical units” [see: Medical
Units and Establishments]. Hospitals may be civilian or military in character
and must be respected and protected at all times and in all circumstances in
both international and non-international armed conflicts [art. 19 gci; art. 18
gciv; art. 12 api; art. 11 apii; rule 28 ICRC Customary ihl Study].
The rule that hospitals for wounded and sick members of the armed forces
must be respected and protected was one of the very first rules of ihl treaty
law, set down in Article 1 of the 1864 Geneva Convention. Over time, the pro-
tection owed to those hospitals has been extended to civilian hospitals and to
Hospitals 377
hospitals in non-international armed conflicts. Hospitals and other medical

establishments are protected so they can carry out their essential function of
enabling the treatment, care, and protection of the wounded and sick during
armed conflicts.
The rule that hospitals must be respected at all times entails that they may
not be the object of attack [art. 19 gci; art. 18 gciv; art. 12 api; art. 11 apii].
This includes protection from direct attack and protection from the effects of
attacks on other lawful military objectives. Parties to the conflict may inform
each other of the location of hospitals to enhance their protection, including
by providing gps coordinates. The parties should try to situate hospitals in
locations where they will not be at risk due to attacks on military objectives
[see: Precautions, Passive]. Failing to provide such information, or situating
them in proximity to lawful military objectives, however, does not release
the other party from its obligations to respect and protect hospitals. Hospi-
tals that have been recognized and authorized by the competent authorities
may also be marked with the red cross, red crescent, or red crystal emblem
[see: Marking; Emblem]. The use of the emblem does not itself confer protec-
tion; instead, it can help to identify an object that due to its nature is protected
under ihl.
Hospitals can lose their special protection from attack if they are used
to commit acts harmful to the enemy [see: Acts Harmful to the Enemy].
Enabling the provision of care for wounded and sick members of the armed
forces, including enemy armed forces, may not be considered an act harmful to
the enemy that is outside the humanitarian functions of the hospital. Further-
more, the fact that personnel in the hospital carry small arms [see: Small Arms
and Light Weapons] for personal self-defence or defence of the wounded or
sick in their care does not deprive the hospital of its protection. Hospitals may
be guarded by sentries using light individual weapons for defensive purposes
only, without that leading to the hospital losing its special protection. Further-
more, the temporary presence of small arms and ammunition that was in the
possession of the sick or wounded brought in for treatment and care does not
constitute an act harmful to the enemy [art. 22 gci].
Even if a hospital loses its protection from attack, however, it may only be
attacked if it qualifies as a lawful military objective and after a clear warning
has been given, naming, in all feasible cases, a reasonable time limit, and after
such a warning has gone unheeded [art. 21 gci; art. 19 gciv; art. 13 api; art. 11
apii; see: Military Objectives].
378 Hostages
Hostages. The term hostage is not a legal classification of persons under ihl.
Notwithstanding, the taking of hostages is prohibited by various provisions of
the 1949 GCs and their APs, none of which define “hostages”, probably due
to the difficulty of providing a comprehensive meaning covering all possible
scenarios.
The prohibition of hostage-taking protects different groups of people de-
pending on the applicable rule. In international armed conflict, Articles 34
and 147 gciv safeguard “protected persons” [see: Protected Persons], while
Article 75(1) and (2)(c) api protects persons affected by international armed
conflict, occupation, or national liberation war “who are in the power of a
Party to the conflict and who do not benefit from more favorable treatment
under the [GCs] or under [api]”. In non-international armed conflict, Com-
mon Article 3 GCs protects “persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention, or any other cause” and
Article 4(2)(c) apii protects “all persons who do not take a direct part or who
have ceased to take part in hostilities, whether or not their liberty has been
restricted”.
The prohibition of hostage-taking “can be defined as the seizure, detention
or otherwise holding of a person (the hostage) accompanied by the threat to
kill, injure or continue to detain that person in order to compel a third party
to do or to abstain from doing any act, as an explicit or implicit condition for
the release, safety or well-being of the hostage” [2016 icrc Commentary Com-
mon Article 3 GCs, p. 650]. Common Article 3 GCs indicates that the taking
of hostages is one of the acts that “shall remain prohibited at any time and in
any place whatsoever” [e.g. Judgment, Cruz Sánchez et al. v. Peru, IACtHR,
paras. 269–270]. The prohibition of hostage-taking is considered to be a rule of
customary ihl [rule 96 icrc Customary ihl Study].
There is no unanimity as to whether or not the deprivation of liberty ought
to be unlawful in a hostage-taking situation under ihl. If this is indeed re-
quired, it means that people whose detention is lawful (such as prisoners of
war or civilian internees), or not otherwise prohibited under ihl, will not be
protected by the prohibition of hostage-taking, even if they are treated as such
during their detention.
Other sources have indicated that the unlawfulness of the detention is a
requirement [e.g. Judgment, Blaškić, icty, Trial Chamber, para. 158; 1958 icrc
Commentary gciv, p. 601]. However, the icrc has recently clarified that
“unlawful detention is not a precondition for hostage-taking. Persons whose
detention may be lawful, such as in the case of civilians posing a security
threat, could nevertheless be used as hostages, which would then qualify the
Hostilities, Conduct of 379
situation as hostage-taking. The requisite intent to take hostages need not be

present at the outset of a detention; it can develop during the detention” [2016
icrc Commentary Common Article 3 GCs, p. 653].
Furthermore, although gciii does not encompass any provisions prohibit-
ing prisoners of war from being taken hostage, Rule 96 of the icrc Customary
ihl Study states that “there is no indication that the offence is limited to tak-
ing civilians hostage”.
Threats made to the hostage are illegal under ihl. However, threatening
a person with the continuation of his or her detention does not necessarily
amount to hostage-taking. For instance, if a negotiation is conducted to ex-
change prisoners, making such a threat to “someone whose release is not
legally required” will not constitute hostage-taking. It would, however, be un-
lawful to make such a threat “if the detention would be arbitrary” [2016 icrc
Commentary Common Article 3 GCs, p. 656].
The icc Statute prohibits hostage-taking as a war crime in Articles 8(2)(a)
(viii) (for international armed conflicts) and 8(2)(c)(iii) (for non-international
armed conflicts). Additionally, Article 1 of the International Convention against
the Taking of Hostages defines the offence of hostage-taking, for the purpose
of that Convention.
Bibliography
Criminal Court (2003), pp. 124–127, 406–407.
H. Salinas Burgos, ‘The Taking of Hostages and International Humanitarian Law’, 29
(270) irrc (1989).
D. Tuck, ‘Taking of Hostages’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva
Conventions. A Commentary (2015).
Hostilities, Conduct of. The conduct of hostilities can be described as all

actions in an armed conflict which constitute a hostile act undertaken against
the enemy, whether taking place in an international or a non-international
armed conflict. The actions falling under the conduct of hostilities stand in
contrast to measures undertaken in the context of law enforcement, as the
latter are usually not regulated by ihl but, rather, by domestic law and ihrl
[see: Law Enforcement; International Human Rights Law]. The two bodies
380 Hostilities, Conduct of
of law can nonetheless overlap regarding the same set of actions. While the
conduct of hostilities is a term of art under ihl, it is important to stress that
it is not a precondition for the application of ihl [see: International Armed
Conflict; Non-International Armed Conflict]. In this regard, the conduct of
hostilities is but an element to an international or non-international armed
conflict and it is usually referred to in order to determine the applicable rules,
namely the provisions governing the means and methods of warfare.
1. Means and Methods of Warfare

The conduct of hostilities covers the use of both means (i.e. specific weap-
ons) and methods (i.e. specific ways of conducting an attack) of warfare. Dis-
tinguishing between means and methods of warfare is necessary, since every
weapon can be used unlawfully (method), while only certain categories of
weapons (means) are inherently unlawful [Y. Dinstein, The Conduct of Hostili-
ties under the Law of International Armed Conflict (2015), pp. 2, 4].
The term “means of warfare” refers to all actions employing a specific kind
of weapon or material. While today there is a large number of specialised
conventions dealing with the prohibition or regulation of specific means of
warfare [see e.g. Convention on Certain Conventional Weapons (1980); Anti-
Personnel Mine Ban Convention (1997); Convention on Cluster Munitions
(2008)], the most important rule of ihl dealing with means of warfare is the
prohibition of weapons “which are of a nature to cause superfluous injury or
unnecessary suffering” [art. 35(2) api; rule 70 icrc Customary ihl Study; see:
Superfluous Injury and Unnecessary Suffering].
The expression “methods of warfare” refers to any military operations falling
under the broader concept of “attacks” under ihl [art. 49(1) api; see: Attacks].
In this context, it is worth noting that it is universally agreed that actions not
delivering kinetic force could amount to an attack: chemical, biological, and
radiological attacks are indeed seen as attacks under international law [Deci-
sion on the Defense Motion for Interlocutory Appeal on Jurisdiction, Tadić,
icty, Appeals Chamber, paras. 120, 124]. The question arose more recently
with regard to so-called cyber-attacks. While still a controversial topic, it is also
accepted that cyber operations can fall under the definition of attacks [see:
Cyber Warfare].
2. Historical Origin and Legal Developments

The idea that the way in which hostilities are conducted has certain limits goes
back to ancient times and is probably older than the more modern idea of the
Hostilities, Conduct of 381
protection of certain groups of persons [see: Geneva Law; Hague Law]. Article
35(1)-(2) api – the modern codification of this underlying concept – states that
“the right of the Parties to the conflict to choose methods or means of warfare
is not unlimited” and that “it is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering”.
The ancient will to reduce the effects of war and stop extreme and cruel
violence had philosophical and religious roots. Academics like Hugo Grotius
argued for a prohibition of any behaviour which was not absolutely necessary
in order to end the war. This led to the creation of a regulatory framework for
the conduct of hostilities, aiming “to protect the civilian population, as well
as combatants, against excessive and exceptionally cruel violence” [S. Oeter,
‘Methods and Means of Warfare’, in D. Fleck (ed.), Handbook of International
Humanitarian Law (2013), p. 121], a restrictive process coming from increas-
ingly disciplined and professional armies, a State monopoly of armed violence,
and the “nationalisation of war” across Europe. This paved the way for the
development of the core principle of military necessity in ihl [see: Military
Necessity].
The idea of limited warfare further developed and reached customary status
thanks to the opinio iuris and State practice of the nineteenth century, which
shaped modern ihl [Oeter, p. 115]. The primary rules governing the conduct of
hostilities meander between two cornerstones of ihl: the protection of the ci-
vilian population and the prohibition to inflict unnecessary suffering. This was
reflected in early ihl codifications, starting with the 1863 Lieber Code (which
recognized that the civilian population and civilian objects do not constitute
a legitimate military target) and the 1868 St. Petersburg Declaration (declaring
that the only legitimate object is to weaken the military forces of the enemy)
[see: Saint Petersburg Declaration (1868)].
While the 1899 and 1907 Hague Regulations fell short of providing detailed
provisions for the conduct of hostilities [see: Hague Regulations (1907)], one
of their main achievements was to lay down in Article 22 that “[t]he right of
belligerents to adopt means of injuring the enemy is not unlimited” and in
Article 23 the prohibition of employing “arms, projectiles, or material calcu-
lated to cause unnecessary suffering”. However, while the 1949 GCs offered
detailed provisions with regard to the protection of certain persons not par-
ticipating in hostilities, States were not able to agree on the inclusion of rules
with regard to the conduct of hostilities. It took until 1977 for States to agree
on a detailed codification of the methods and means of warfare, as well as the
protection of the civilian population [arts. 35–47, 48–79 api; see: Additional
Protocol i].
382 Hostilities, Conduct of
3. Rationale and Purpose

The rationale and purpose of the legal regime governing the conduct of hos-
tilities is that “[t]he right of the belligerent to adopt means of injuring the
enemy” [art. 22 1907 Hague Regulations] and “the right of the Parties to con-
flict to choose methods or means of warfare” [art. 35(1) api] are not unlim-
ited. This axiomatic statement clearly rejects the concept of total war [1987
icrc Commentary api, para. 1367]. It is enhanced by the detailed prohibitions
“to cause superfluous injury or unnecessary suffering” [art. 35(2) api] and to
“strike military objectives and civilians or civilian objects without distinction”
[art. 51(4)-(5) api; see Indiscriminate Attacks]. These customary law prohi-
bitions constitute parts of the aforementioned principle of military necessity
[rules 11–12, 70 icrc Customary ihl Study].
4. Critical Remarks
The twenty-first century has brought new (and revived old) challenges to the
conduct of hostilities. Since the end of World War ii, and even more so after
the end of the Cold War and the 9/11 terrorist attacks, there has been a steady
evolution away from classical inter-State war opposing two traditional armies
on each side. Instead, we are witnessing the increase of asymmetrical warfare
where a superior party, e.g. a governmental army, is fighting against an inferior
party, e.g. a rebel group or a terrorist movement [see: Asymmetric Warfare].
In addition, States’ armed forces in a non-international armed conflict (e.g. in
Afghanistan) are simultaneously carrying out law enforcement tasks for secu-
rity purposes, e.g. counter-terrorism measures [T. Gill, R. Geiss, R. Heinsch (ila
Study Group), The Conduct of Hostilities Under International Humanitarian
Law – Challenges of 21st Century Warfare (2014), pp. 2–3; see: Anti-Terrorist
Operations]. As a consequence, the weaker party will often try to use certain
rules of the conduct of hostilities to their advantage, for example by protecting
military installations with civilian human shields or targeting unlawful com-
batants in situations not always covered by ihl [see: Human Shields; Terrorist
Organizations]. This might endanger core principles of ihl, such as distinc-
tion or proportionality [see: Distinction; Proportionality].
Furthermore, the growing numbers of civilians, either affected by mod-
ern warfare or directly participating in hostilities, complicates regular com-
batants’ obligation to distinguish between fighters and civilians [see: Direct
Participation in Hostilities]. In addition, the use of modern technologies like
cyber warfare, drones, or lethal autonomous weapons poses challenges to the
conduct of hostilities and its core principles [ila Study Group, pp. 9–10, 21, 34;
see: Cyber Warfare; Drones; Autonomous Weapons].
Human Rights Courts and Bodies 383
Bibliography
(2016), p. 1 et seq.
R. Geiss, M. Siegrist, ‘Has the Armed Conflict in Afghanistan Affected the Rules on the
Conduct of Hostilities?’ 93(881) irrc (2011).
T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under
International Humanitarian Law – Challenges of 21st Century Warfare (2014 and
2017).
S. Oeter, ‘Means and Methods of Combat’, in D. Fleck (ed.), Handbook of International
Human Rights Courts and Bodies. Human rights courts and bodies are
monitoring and accountability mechanisms set up by human rights trea-
ties to supervise the member States’ implementation of, and compliance
with, their specific treaty obligations [see: International Human Rights
Law]. These monitoring mechanisms can be judicial (i.e. a court, such as the
ECtHR, which is the main supervisory organ of echr) and/or quasi-judicial
(i.e. a committee of independent experts with power to review individual
complaints, such as the hrc, which is the monitoring organ of iccpr). The
founding treaties define and restrict the authority, mandate, and processes of
these bodies.
Human rights courts and bodies were originally not regarded as institutions
through which ihl issues would be addressed. The understanding was that the
two branches of law applied in completely distinct situations, peacetime and
wartime respectively, and that human rights monitoring bodies lacked compe-
tence and expertise to deal with ihl issues [provisions delimiting the courts
and bodies’ jurisdiction: art. 19 echr; art. 63 achr; art. 45 achpr; arts. 40–41
iccpr]. Nevertheless, over time, human rights courts and bodies have been
called upon to assess human rights violations committed in armed conflict
contexts, within States’ territory, but also extraterritorially. As a result, while
they were expected not to address any alleged ihl violations, the human rights
courts and bodies do refer to or even apply ihl through various entry points.
First, all the human rights treaties contain explicit references to internation-
al law, which includes ihl. These provisions may not give human rights courts
and bodies authorisation to directly pronounce on ihl violations as such, but
they do compel them to look into ihl when deciding whether the State has
384 Human Rights Courts and Bodies
violated its human rights obligations. For instance, human rights instruments
allow for derogations from certain treaty provisions, as long as they are consis-
tent with States’ other obligations under international law [e.g. art. 15 echr;
art. 4 iccpr; art. 27 achr]. Thus, it follows that derogations that violate ihl
norms are impermissible [hrc, General Comment 29: Article 4: Derogations
during a State of Emergency, para. 9].
Another example of the straightforward invocation of international law,
and therefore ihl, is included in the principle of legality, which ensures that
no one shall be found guilty of any act that did not constitute a criminal of-
fence, at the time of its commission, under national or international law [e.g.
art. 15 iccpr; art. 7 echr]. For instance, the ECtHR had to pronounce on
whether the distinction between civilians and combatants, set out in ihl, ap-
plied already in 1944, before the adoption of the 1949 GCs, in order to be able
to conclude that there was no violation of the principle of legality [Judgment,
Kononov v. Latvia, ECtHR, Grand Chamber, paras. 202–203].
Second, all the human rights treaties contain broadly framed legal terms
that require further interpretation. In this regard, the monitoring bodies in-
terpret human rights provisions in light of ihl. For instance, Article 6 iccpr
prohibits the arbitrary deprivation of life. The term “arbitrary” cannot be rea-
sonably defined in a context of armed conflict without taking into account ihl
norms. However, ihl provisions merely provide elements of interpretation of
the respective human rights treaties in order to define and specify the content
of human rights norms. Indeed, the IACtHR, while examining a series of ex-
trajudicial executions in an armed conflict context, highlighted that the achr
only gave it competence to determine whether the States’ acts are compatible
with the Convention itself, not with ihl [Judgment (Preliminary Objections),
Las Palmeras v. Colombia, IACtHR, paras. 32–34; Judgment, Bámaca Velásquez
v. Guatemala, IACtHR, paras. 208–209].
In 2014, an ECtHR judgement went a step further. Despite the exhaustive
list of grounds for detention under Article 5 echr on the right to liberty and
security, the Court applied the standards on detention and internment under
the 1949 GCs to ultimately conclude that there was no violation of Article 5
echr [Judgment, Hassan v. UK, ECtHR, Grand Chamber, paras. 109–110; see:
Deprivation of Liberty].
Lastly, showing a more inclusive approach, some of the most recent human
rights treaties make explicit references to the ihl obligations of State parties
and, therefore, expressly authorise the relevant monitoring bodies to evalu-
ate ihl issues [e.g. art. 38 Convention on the Rights of the Child (crc); arts.
1–4 Optional Protocol to the crc on the Involvement of Children in Armed
Human Rights Courts and Bodies 385
Conflict; art. 11 Protocol to the achpr on the Rights of Women in Africa; art. 11
UN Convention on the Rights of Persons with Disabilities].
In general, human rights courts and bodies have been cautious in referring
to or applying ihl while assessing human rights violations in an armed con-
flict, unless it has been considered necessary for reaching a conclusion regard-
ing violations of human rights norms. Occasional references to violations of
ihl obligations that have some equivalent obligation in ihrl should be un-
derstood as observations aiming at reinforcing the significance of the respec-
tive human rights violation, rather than constituting a binding determination
of ihl violations [cescr, General Comment 15: The Right to Water (2003);
Decision, Democratic Republic of Congo v. Burundi, Rwanda and Uganda,
ACmHPR, para. 79].
Interestingly, despite the lack of direct mandate, the hrc, and other UN hu-
man rights treaty bodies, did not hesitate to make direct references to States’
obligations under the 1949 GCs in their concluding observations following
each periodic State reporting cycle [e.g. hrc, Concluding Observations on Bos-
nia and Herzegovina, UN Doc. CCPR/C/79/Add.14, para. 7]. Nevertheless, they
do not follow the same practice in their views on individual complaints. The
reason for this could be that the treaty bodies feel more legally constrained
compared to the reporting procedures, which have a more quasi-political
character.
Looking to the future, the lack of ihl monitoring mechanisms and the fact
that human rights courts and bodies are the only fora where there is a possibil-
ity for individuals to lodge direct complaints suggest that there will be an in-
creasing number of cases where human rights courts and bodies will be called
upon to examine situations where both bodies of law apply. Gradually, as the
relationship between the two branches evolves and as the trend of inclusion
of ihl references in human rights instruments continues, human rights courts
and bodies may revise their cautious approach and directly address ihl issues
[W. Kälin, ‘Universal Human Rights Bodies and International Humanitarian
Law’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and
Humanitarian Law (2013), p. 441].
Commentators have underlined both the positive side of such a develop-
ment, such as the complementary implementation of the two bodies of law
and reinforcement of ihl implementation, as well as the negative side, such as
the lack of experience and expertise of human rights courts and bodies on the
topic of ihl or a reorientation away from human rights issues [H. Krieger (ed.),
Inducing Compliance with International Humanitarian Law: Lessons from the
African Great Lakes Region (2015), p. 263].
386 Human Shields
Ilia Siatitsa – the views expressed are those of the author alone and do not nec-
Bibliography
C. Byron, ‘A Blurring of the Boundaries: The Application of International Humanitar-
ian Law by Human Rights Bodies’, 47 Va. J. Int’l L. (2006–2007).
W. Kälin, ‘Universal Human Rights Bodies and International Humanitarian Law’, in
R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian
Law (2013).
D. Steiger, ‘Enforcing International Humanitarian Law through Human Rights Bodies’
in H. Krieger (ed.), Inducing Compliance with International Humanitarian Law:
Lessons from the African Great Lakes Region (2015).
Human Shields. While formulated with slight differences in several treaty pro-
visions, such as Article 23 gciii, Article 28 gciv, Article 51(7) api, and Article
8(2)(b)(xxiii) icc Statute, the use of human shields is generally described as
using the presence (or movements) of civilians or other protected persons to
render certain points or areas (or military forces) immune from military op-
erations [rule 97 icrc Customary ihl Study; Judgment, Karadžić, icty, Trial
Chamber, para. 525; see: Protected Persons].
The use of human shields distorts the delicate balance between military ne-
cessity and humanitarian considerations in the law, by taking advantage of its
humanitarian protections for military ends [M.N. Schmitt, ‘Human Shields in
International Humanitarian Law’, 47(292) Colum. J. Transnat’l L. (2008–2009),
p. 301; see: Military Necessity; Humanity]. As ihl prohibits attacks against
civilians and other protected persons [see: Attacks against Civilians and Per-
sons Hors de Combat], it naturally disallows abuse of this prohibition too
[M. Pedrazzi, ‘Using Human Shields as a War Crime’, in F. Pocar et al. (eds.),
War Crimes and the Conduct of Hostilities (2013), p. 100]. On the basis of in-
ternational instruments, as well as State practice, including that of States not
party to api, apii, or the icc Statute, the icrc has reached the conclusion
that the prohibition of using human shields is a norm of customary interna-
tional law applicable in both international and non-international armed con-
flict [rule 97 icrc Customary ihl Study]. This conclusion has gained wide
doctrinal support [Schmitt, pp. 306–307; Pedrazzi, p. 105; Y. Dinstein, ‘Issues
Relating to the Use of Civilian Human Shields’, 44(273) Israel Yearbook on Hu-
man Rights (2014), p. 291].
The use of human shields is prohibited regardless of whether it is carried out
by a defending party or by an attacking party [art. 51(7) api; Pedrazzi, p. 101].
Human Shields 387
The prohibition of the use of human shields is not dependent on actual harm
or attack, as its purpose is to protect civilians and other protected persons from
being exposed to the risk of harm and not only to the harm itself [Judgment,
Blaškić, icty, Appeals Chamber, para. 654].
In order for a conduct to qualify as the use of human shields, those plac-
ing a military objective and protected persons together must possess the spe-
cific intent to shield the military objective from attack or to shield, favour,
or impede military operations [art. 8(2)(b)(xxiii)-2 icc Elements of Crimes;
Karadžić, para. 526; rule 97 icrc Customary ihl Study]. Therefore, the coinci-
dental presence of civilians during a military force’s retreat or the co-location
of civilians and a military force in the course of the lawful evacuation of the
former by the latter does not qualify as the use of human shields, unless the
military force intends to take advantage of the civilians’ presence or movement
to shield themselves from the enemy’s military attack [Schmitt, pp. 302–303].
1. Prohibition of the Use of Human Shields in International Armed Conflicts

In the context of international armed conflicts, several treaty provisions
explicitly outlaw the use of human shields. For instance, Article 28 gciv and
Article 51(7) api prohibit the use of civilians, whereas Article 23 gciii pro-
hibits the use of prisoners of war as human shields in international armed
conflicts [see: Civilians; Prisoners of War]. Articles 12(4) and 28(1) api pro-
hibit the similar use of medical units and medical aircraft [also art. 19 gci; see:
Medical Units and Establishments; Medical Aircrafts].
The rationale of the prohibition of using human shields, as described above,
is particularly reflected in Article 51(7) api, which prohibits the use of civil-
ians and the civilian population as human shields. This provision is a corol-
lary to Article 48 api, which articulates the principle of distinction, as well as
to Article 51(1) and (2) api, which provides that “the civilian population and
individual civilians shall enjoy general protection against dangers arising from
military operations” and that they “shall not be the object of attack” [Schmitt,
p. 302; see: Distinction]. Article 58 api further provides a complementary rule
for the prohibition of using civilian shields, in particular by obliging parties to
a conflict to “endeavour to remove the civilian population, individual civilians
and civilian objects under their control from the vicinity of military objectives”
and to “avoid locating military objectives within or near densely populated ar-
eas” [1987 icrc Commentary api, para. 2255; see: Precautions, Passive].
According to Article 51(8) api, the use of human shields shall not release
the opposing party from its obligations towards civilians. In particular, this in-
cludes the duty, required by Article 57 api, to take all feasible precautionary
388 Human Shields
measures when launching an attack [1987 icrc Commentary api, paras.

1989–1991; see: Precautions, Active]. This duty also applies to cases where the
wounded and sick and/or the medical unit taking care of them are used as
human shields [1987 icrc Commentary api, paras. 539–540]. Article 51(8) api
also signifies that the principle of proportionality remains applicable, despite a
violation by the other side by using human shields [art. 51(5)(b) api; Dinstein,
pp. 286–287; see: Proportionality].
2. Prohibition of the Use of Human Shields in Non-international Armed Conflicts

There exists no specific treaty provision outlawing the use of human shields in
non-international armed conflicts. Nonetheless, certain provisions applicable
in non-international armed conflicts can be considered to encompass the pro-
hibition against the use of human shields [1987 icrc Commentary api, para.
4772; rule 97 icrc Customary ihl Study]. Such provisions include Article 13
apii, which stipulates the principle of the protection of civilians and the civil-
ian population, recognised by customary international law [1987 icrc Com-
mentary api, para. 4761], as well as Article 5(1)(b) and (2)(c) apii concerning
the protection of detainees and internees against the dangers of the armed
conflict [Pedrazzi, p. 105].
3. Further Developments in International Criminal Law

Article 8(2)(b)(xxiii) icc Statute and Article 6.1(b)(xxiii) UNTAET Regulation
No. 2000/15 criminalise the use of human shields as a war crime in interna-
tional armed conflicts [see: Serious Violations of the Laws and Customs of
War; War Crimes]. However, there is no specific treaty provision that crimi-
nalises the use of human shields in non-international armed conflicts. Thus,
in combination with varying State practice, whether customary international
law criminalises the use of human shields as a stand-alone crime, especially in
non-international armed conflicts, is still debatable [Pedrazzi, p. 116].
Nonetheless, when specific legal conditions are met, the use of human
shields can amount to the taking of hostages, cruel treatment, or more gener-
ally inhuman treatment, all of which are prohibited by Common Article 3 GCs
and Article 4 apii, as well as by customary ihl both in international and non-
international armed conflicts [rules 87, 90, 96 icrc Customary ihl Study; see:
Hostages; Inhuman Treatment]. The icty has held that the use of prisoners
of war and civilian detainees as human shields may be punishable, where the
required elements of crimes are met, as: (i) inhuman treatment (as a grave
breach of the GCs in international armed conflicts); (ii) cruel treatment (as a
violation of the laws or customs of war in non-international armed conflicts);
Human Shields 389
and (iii) persecution or other inhumane acts (as crimes against human-
ity) [Blaškić, paras. 154–155, 160, 653, 669–671; Karadžić, para. 523; Judgment,
Naletilić and Martinović, icty, Trial Chamber, paras. 245, 262–263, 289–290,
298, 300, 303, 334; see also: Judgment, Naletilić and Martinović, icty, Appeals
Chamber, paras. 420, 465 (affirming Martinović’s convictions); Judgment,
Prlić et al., icty, Trial Chamber, Vol. 1, paras. 115, 150; Vol. 3, paras. 1262–1264,
1356–1358, 1459–1461, 1714–1716; see also: Judgment, Prlić et al., icty, Appeals
Chamber, paras. 1344–1351, 2311–2321, 3366 (affirming all six defendants’ rel-
evant convictions)].
4. Controversial Issues
One of the most debated questions is whether and how to distinguish voluntary
human shields (namely, those who willingly serve as shields) from involuntary
human shields, and as part of this, whether voluntary civilian human shields
should be regarded as civilians directly taking part in hostilities, thereby losing
the protections from attack afforded to civilians as provided for in Article 51(3)
api [see: Direct Participation in Hostilities]. Some commentators answer this
question in the affirmative [Schmitt, pp. 318–319; Dinstein, pp. 282–284], while
others argue that voluntary civilian human shields cannot be equated to civil-
ians directly participating in hostilities and therefore retain the full protection
afforded to civilians [Pedrazzi, p. 104]. The icrc has expressed the view that
the answer depends on whether voluntary human shields directly cause the
threshold of harm to the enemy required to be qualified as direct participation
in hostilities. This is to be assessed in light of the nature of the military opera-
tions in question [N. Melzer, Interpretive Guidance on the Notion of Direct
Participation in Hostilities under International Humanitarian Law (2009), pp.
56–57].
The answers to these questions further affect the analyses of related issues,
such as whether the opposing party encountering voluntary human shields
bears obligations to ensure proportionality and to take precautions in the at-
tack, which are part of the protection afforded to civilians taking no direct
part in hostilities [arts. 51(5)(b), 51(8), 57 api]. It is less controversial that these
obligations remain in place for opposing parties that face involuntary human
shields [Schmitt, pp. 327–328; Dinstein, pp. 285–287]. In addition, where the
opposing party is deemed to bear such obligations (either vis-à-vis both in-
voluntary and voluntary human shields or vis-à-vis involuntary human shields
only), a vigorously debated issue is whether the application of the proportion-
ality test should be relaxed owing to the exceptional circumstances of human
shields [Schmitt, pp. 328–332; Dinstein, pp. 285–289; W.H. Boothby, The Law of
Targeting (2012), pp. 137, 139].
390 Humanitarian Corridors
In order to find logically coherent answers, it is essential to first consider the

underlying issues of the direct participation rule and the proportionality test,
as well as to identify concrete criteria for the implementation of these prin-
ciples, which have also been subject to intense controversy.
Saeko Kawashima – the views expressed are those of the author alone and do
Bibliography
W.H. Boothby, The Law of Targeting (2012), pp. 136–139.
Y. Dinstein, ‘Issues Relating to the Use of Civilian ‘Human Shields’, 44(273) Israel Year-
book on Human Rights (2014).
M. Pedrazzi, ‘Using Human Shields as a War Crime’, in F. Pocar, M. Pedrazzi, M. Frulli
(eds.), War Crimes and the Conduct of Hostilities (2013).
M.N. Schmitt, ‘Human Shields in International Humanitarian Law’, 47(292) Colum. J.
Transnat’l L. (2008–2009).
Humanitarian Assistance; see: Humanitarian Relief
Humanitarian Corridors. Humanitarian corridors are designated routes that

are demilitarized for a specified period of time, in order to permit humanitar-
ian relief to be delivered and allow civilians and other protected persons to
move freely or be evacuated, without being exposed to the dangers of hostili-
ties [see: Humanitarian Relief; Protected Persons].
While it is generally prohibited for parties to a conflict to order the displace-
ment of the civilian population for reasons related to the armed conflict [see:
Deportation or Transfer of Civilians], there are some exceptions: whenev-
er circumstances permit, parties to a conflict have the obligation to take all
possible measures to search for, collect, and evacuate the wounded and sick,
whether civilians or fighters [see: Casualties, Search for]. In addition, a party
may evacuate some or all civilians from an area, if the security of the civilians
involved or imperative military reasons so demand [see: Evacuation]; civilians
must be allowed to return when the reasons for the displacement have ceased
to exist [art. 49(2) gciv; arts. 12, 17 iccpr; rules 109, 129, 132 icrc Customary
ihl Study].
While ihl contains some provisions on the establishment, by agree-
ment between the parties to a conflict, of permanent or temporary zones to
shelter the wounded and sick and civilians from the effects of hostilities
[see: Specially Protected Zones; Neutralized Zones], these differ from
Humanitarian Corridors 391
humanitarian corridors, which are typically more restricted in both time

and geography, and are not specifically provided for under ihl [art. 23 gci;
arts. 14–15 gciv; art. 60 api]. Practical alternatives to humanitarian corridors
that equally aim to enable humanitarian activities within limited space and
time include de-confliction arrangements, humanitarian pauses, and days of
tranquillity.
The establishment of humanitarian corridors is traditionally premised on
all the parties to a conflict agreeing to create and respect them. Pursuant to
unga Resolution 46/182 (1991), the UN Emergency Relief Coordinator has the
responsibility to actively facilitate, “including through negotiation, if needed,
the access by the operational organizations to emergency areas for the rapid
provision of emergency assistance, by obtaining the consent of all parties con-
cerned, through modalities such as the establishment of temporary relief cor-
ridors where needed, days and zones of tranquillity and other forms”. If the
parties to a conflict do not reach an agreement, then an alternative path is for
a military force to secure a humanitarian corridor (while taking into account
the sovereignty of the territorial State), or for the unsc to impose one under
Chapter vii of the UN Charter.
A number of concerns flow from the establishment of a humanitarian cor-
ridor, especially if it does not enjoy the agreement of all parties to a conflict.
Because of its temporal and geographic limitations, a humanitarian corridor
is not an optimal solution for organizations that need general access to de-
liver relief and other forms of assistance wherever they are needed [see:
International Committee of the Red Cross; Relief Societies]. A corridor
cannot serve as a substitute for the general obligation of all parties to armed
conflict to allow and facilitate rapid and unimpeded passage of humanitarian
relief for civilians in need, subject to their right of control [art. 59 gciv; arts.
70–71 api; rules 55–56 icrc Customary ihl Study]. For example, in March
2012, the icrc rejected international calls for humanitarian corridors in Syria,
calling instead for a humanitarian pause that would take place every day for
two hours in order to allow the delivery of aid and evacuations.
In addition, the dire circumstances that typically prompt the idea of a hu-
manitarian corridor are the exact circumstances that make it difficult to secure
the agreement of all parties in order to make it safe and effective. Unless the
agreement of all parties and proper safety guarantees are in place, concentrat-
ing civilians and other protected persons in a given area can expose them to at-
tack by a party to the conflict. There is also a danger that civilians who choose to
move or not to move might be viewed as supporting a party to the conflict and
therefore be vulnerable to attack, ill-treatment or detention by the enemy party.
392 Humanitarian Relief
In order to guard against such dangers in the absence of an agreement be-

tween the parties, a robust military presence (such as a peacekeeping force
mandated by the unsc) will be required to ensure the protection of those trav-
elling through it. However, the presence of military forces to protect the cor-
ridor can also draw attacks from enemy parties, exposing civilians and other
protected persons to hostilities and thereby undermining the very purpose
of the corridor. In addition to presenting such dangers, the militarization of
humanitarian mechanisms can jeopardize on-going negotiations for the sus-
tained delivery of humanitarian assistance.
Nathalie Weizmann – the views expressed are those of the author alone and do
not necessarily reflect the views of the United Nations
Bibliography
irin, ‘Why Humanitarians Wary of “Humanitarian Corridors”’ (2012).
K. Shaheen, ‘Syria: UN Considers Role in Russia’s “Deeply Flawed” Humanitarian Cor-
ridors Plan’, The Guardian (2016).
Humanitarian Relief. Humanitarian relief consists of articles and activities of

prime necessity for subsistence and health. This can include water, food, medi-
cal supplies, clothing, bedding, means of shelter, fuel for heating, other items
and services essential for survival (these can depend on the local conditions),
and objects needed for religious worship [art. 59 gciv; arts. 69–70 api]. The
term “humanitarian relief” covers a narrower range of supplies and activities
than “humanitarian assistance”, which can address longer-term, recurrent, or
chronic needs [art. 81 api].
In practice today, a range of actors – national and international, governmen-
tal and non-governmental – may offer to carry out humanitarian relief opera-
tions in international and non-international armed conflicts [common art. 3
GCs; art. 70 api; art. 18 apii; see: International Committee of the Red Cross;
International Red Cross and Red Crescent Movement; Relief Societies; Civ-
il Defence]. An offer of humanitarian relief that is impartial and conducted
without adverse distinction is not considered as interference in an armed con-
flict or an unfriendly act [art. 70 api].
1. Recipients
Humanitarian relief must have the general aim of distributing articles to vic-
tims of armed conflict (including civilians and persons hors de combat), ac-
cording to need alone [see: Civilians; Hors de Combat]. It must be impartial
and conducted without adverse distinction, thus refraining from diverting
Humanitarian Relief 393
consignments or favouring certain persons on any grounds other than need

(such as race, religion or political opinion) [art. 70 api; art. 18 apii]. How-
ever, this does not preclude specific actions for the benefit of certain vulner-
able groups, such as children, expectant or nursing mothers, or persons with
disabilities, or for the benefit of only one party to the conflict [see: Children;
Women; Disability]. Moreover, ihl explicitly requires that priority be given to
certain categories of vulnerable persons such as children, expectant mothers,
maternity cases and nursing mothers [art. 70 api].
2. Consent
In situations of international armed conflict other than occupation, protected
persons are entitled to receive individual or collective relief that is sent to them
[art. 38 gciv; see: Protected Persons]. Whenever offers of humanitarian relief
are made, consent is required from the State party to the conflict in whose ter-
ritory the humanitarian relief is carried out, as well as from other States party
to the conflict if the relief must transit through territory under their effective
control, and from other States in whose territory the relief is initiated or must
transit [art. 70 api].
In situations of occupation, if the civilian population, in whole or in part, is
not adequately provided with supplies essential to its survival, the occupying
power has an unconditional obligation to consent to impartial humanitarian
relief operations [art. 59 gciv; see: Occupation]. The same absolute obliga-
tion binds States in whose territory the relief operation is initiated or passes
through [art. 59 gciv]. With respect to individual relief consignments, pro-
tected persons in occupied territories shall be permitted to receive parcels ad-
dressed to them, subject to imperative reasons of security [art. 62 gciv].
When offers of humanitarian relief are made in non-international armed
conflict, apii explicitly requires the consent of the State party “concerned”
[art. 18 apii]. As for Common Article 3 GCs, it is silent as to whether consent is
required in all cases from the State party to the conflict in whose territory the
humanitarian relief is carried out, or only when the State is exercising effective
control over the area in which the relief is intended. Some experts consider
that Common Article 3 GCs allows relief operations as long as the State or non-
State party receiving the offer consents to it and the relief does not have to cross
the territory controlled by the opposing side. Others believe that such an ap-
proach could entail an important infringement on the territorial State’s sover-
eignty if only the consent of a non-State party were obtained [D. Akande, E.-C.
Gillard, Cross-Border Relief Operations – A Legal Perspective (2014), pp. 12–19].
In any event, as a matter of practice in order to ensure a safe and unimpeded
relief operation, the consent of non-State armed groups will be required when
394 Humanitarian Relief
the humanitarian relief is intended for or passing through territory under their
effective control. In situations of non-international armed conflict, ihl does
not explicitly address the consent of States in whose territory the relief is initi-
ated or must transit.
In situations of international armed conflict other than occupation, and in
non-international armed conflict, when civilians are inadequately provided
with essential supplies and the relief operations being offered are humanitar-
ian, impartial, and conducted without adverse distinction, consent to these
operations may not be arbitrarily withheld. In other words, States do not have
absolute and unlimited discretion to refuse relief actions.
It is worth noting that, in the Syrian context, the unsc has overridden the
requirement of consent in its decision to authorize UN humanitarian agencies
and their implementing partners to use routes across conflict lines and cer-
tain border crossings in order to ensure that humanitarian assistance reaches
people in need throughout Syria [unsc Resolution 2165 (2014)].
3. Obligation to Allow and Facilitate Passage

In any situation of armed conflict, once consent to an offer of humanitarian
relief has been granted, the parties must allow and facilitate rapid and unim-
peded passage – over land, water, or by air – of humanitarian relief consign-
ments, equipment, and personnel. The parties must also ensure the freedom
of movement of humanitarian personnel that is essential to the exercise of
their functions [art. 59 gciv; arts. 70–71 api; rules 55–56 icrc Customary ihl
Study]. Only in case of imperative military necessity may their activities or
movements be temporarily restricted [art. 71 api; rule 56 icrc Customary
ihl Study; see: Military Necessity]. In international armed conflict, including
situations of occupation, this obligation to allow and facilitate also applies to
States in whose territory relief operations are initiated or transit [art. 70 api].
In non-international armed conflict, ihl does not explicitly address the role
of States in whose territory the relief is initiated or transits. Refusing access of
humanitarian relief intended for civilians in need, including by deliberately
impeding humanitarian relief or restricting the freedom of movement of hu-
manitarian relief personnel, may constitute a violation of the prohibition of
starvation [rule 53 icrc Customary ihl Study; art. 8(2)(b)(xxv) icc Statute;
see: Starvation].
Measures to allow and facilitate passage can include waiving or simplify-
ing and expediting entry procedures for humanitarian personnel; waiving,
reducing or expediting customs inspection requirements; issuing permits
for the passage of humanitarian relief, equipment, and personnel; ensuring
adequate staffing and schedules in order to meet formalities efficiently and
Humanitarian Relief 395
expeditiously; and allowing telecommunications equipment to be imported

for its exclusive use in humanitarian relief operations, except as required for
imperative reasons of security [D. Akande, E.-C. Gillard, Oxford Guidance on
the Law Relating to Humanitarian Relief Operations in Situations of Armed
Conflict (2016), para. 64]. Except in cases of urgent necessity in the interest of
the civilian population concerned (such as reasons of security, medical needs
in a certain area, or transportation difficulties), relief supplies must not be de-
layed or diverted from their intended destination [art. 60 gciv; 70(3)(c) api].
4. Technical Arrangements
The parties to an armed conflict and States in whose territory relief operations
are initiated or transit have the right to prescribe technical arrangements for
the passage of humanitarian relief. The conditions for the passage of consign-
ments set out in Article 23(2) gciv have been rendered obsolete, since Article
70 api, which is considered to represent customary ihl, limits the possibility
to evade obligations on subjective and unverifiable grounds [Akande, Gillard
(2016), paras. 88, 92]. Technical arrangements must be applied in good faith,
and their nature, extent, and impact must not prevent the rapid delivery of
humanitarian relief in a principled manner. Their imposition or effect must
not be arbitrary [Akande, Gillard (2016), paras. 56, 71].
Technical arrangements can require the search of consignments to verify
that relief consignments are exclusively humanitarian (e.g. not containing
equipment that could be used for military purposes), the use of prescribed
routes at specific times so that relief convoys do not interfere with and are not
endangered by military operations, or measures to ensure that medical sup-
plies and equipment comply with health and safety standards [art. 59 gciv;
art. 70 api]. The parties to an armed conflict may make passage of humani-
tarian relief consignments conditional on their distribution under the local
supervision of an impartial organisation or on other measures, to ensure that
the supplies will reach their intended beneficiaries [art. 70(3)(b) api].
5. Obligation to Respect and Protect

Parties to an armed conflict must respect and protect humanitarian relief per-
sonnel in the course of military operations [art. 71 api; rule 31 icrc Customary
ihl Study]. It is prohibited to direct attacks against them. Practice indicates
that it is also prohibited to harass, intimidate, or arbitrarily detain them [rule
31 icrc Customary ihl Study]. The parties must also respect and protect ob-
jects that are used for humanitarian relief operations, such as supplies, instal-
lations, material, units or vehicles. Their destruction, misappropriation and
looting are also prohibited [art. 70 api; rule 32 icrc Customary ihl Study].
396 Humanity
Intentionally directing attacks against personnel, installations, material, units

or vehicles involved in a humanitarian assistance mission is considered a war
crime in both international and non-international armed conflicts, as long as
they are entitled to the protection given to civilians or civilian objects under
ihl [art. 8(2)(b)(iii), 8(2)(e)(iii) icc Statute].
Bibliography
D. Akande, E.-C. Gillard, Promoting Compliance with the Rules Regulating Humanitar-
ian Relief Operations in Armed Conflict: Some Challenges (2017).
D. Akande, E.-C. Gillard, Oxford Guidance on the Law Relating to Humanitarian Relief
Operations in Situations of Armed Conflict (2016).
D. Akande, E.-C. Gillard, Cross-Border Relief Operations – A Legal Perspective (2014).
F. Schwendimann, The Legal Framework of Humanitarian Access in Armed Conflict
(2011).
Humanity. The principle of humanity is one of the general principles of ihl

and, thus, one of the dynamic forces which drives and informs the develop-
ment of the positive rules of ihl expressed in treaty and custom [see: Interna-
tional Humanitarian Law, General Principles of]. Its meaning may, at first, be
thought self-evident; a matter of common sense. For example, according to the
Oxford English Dictionary, humanity is “[t]he quality of being humane”, “kind-
ness”, and “benevolence”. Yet, the legal concept and its practical significance
are more enigmatic. On the one hand, “humanity” is accepted to be a “funda-
mental principle” and “overriding consideration” [Advisory Opinion, Legality
of the Threat or Use of Nuclear Weapons, icj, paras. 92, 95]. But, in practice, it
is manifestly not supreme or, perhaps more aptly, does not mean what it might
initially appear to mean. This follows from the undeniable fact that the prin-
ciple of humanity does not comprehensively prohibit the use of armed force,
which in turn invariably entails some degree of suffering for its participants.
Put otherwise, “humanity” is not absolute.
The principle of humanity is perhaps most clearly understood when consid-
ered in the context of its relationship with the principle of military necessity
[see: Military Necessity]. To some extent, the two concepts are mirror images,
each qualifying the other. The principle of humanity does not absolutely forbid
the use of force and the infliction of human suffering, but it does, at least, estab-
lish that such conduct is exceptional (in accordance with military necessity).
The positive rules of ihl reflect this balance, evident for example in the prin-
Humanity 397
ciple of distinction between combatants and civilians [see: Distinction], the

rules on the conduct of hostilities [see: Hostilities, Conduct of], and the rules
on the protection of vulnerable groups and persons [see e.g. Protected Per-
sons; Women; Children; Disability]. Although humanity may not always be
an overt part of these rules, in the sense that conduct is not uniformly condi-
tioned on whether it would be humane, the assurance of humane treatment is
a significant part of their underlying value.
Likewise, considerations of humanity may also play a residual role in resolv-
ing those limited areas where ihl is genuinely unclear. Thus, the celebrated
statement known as the Martens Clause – which has subsequently been re-
peated and reinforced in the 1949 GCs and 1977 APs, and in international case
law – calls for individuals to be protected based on “the laws of humanity, and
the requirements of the public conscience” [see: Martens Clause]. But this ap-
proach must, on the other hand, be treated with a degree of caution. As already
stated, it does not mean that humanity trumps positive law. In particular, there
seems to be little support in State practice for the view that the principle of
humanity can be called upon to limit conduct which is permitted by positive
rules of ihl. For example, if rules of ihl permit an attack to be made, and the
attack does not employ weaponry which is prohibited by positive rules of ihl
(see below), it remains controversial, at the least, to suggest that the attacker is
nonetheless obliged to prioritise the weapon’s effects on the target (as opposed
to other valid military considerations) in their choice of (lawful) weapon.
Consistent with the significant influence that the principle of humanity
has played “behind the scenes” in the general elucidation of ihl, however, it is
given clear and prominent effect in certain positive rules. Some of these rules
identify circumstances in which considerations of military necessity are more
or less absent while, conversely, considerations of humanity are imperative,
such as the rules protecting vulnerable persons or prohibiting conduct which
is entirely irrelevant to the conduct of hostilities. Other rules, by contrast,
strike a more visible balance between these concerns, such as some of the rules
concerning the conduct of hostilities. In the long term, it is likely that legal
developments resulting from evolving conceptions of the principle of human-
ity will focus in this latter area. Yet, it is noteworthy that recent clarifications
have, in fact, come from the opposite direction, in further delimiting conduct
which is per se regarded as inhumane and devoid of military necessity.
One obvious consequence of the principle of humanity, therefore, is the ab-
solute prohibition of inhuman treatment of persons once they are in the power
of a party to the conflict [see: Inhuman Treatment]. Violating these protec-
tions, which include express prohibitions of killing, torture, hostage-taking,
arbitrary punishment, may be a war crime [e.g. art. 8(2)(a)(i)-(viii), 8(2)(c)
398 Humanity
(i)-(iv) icc Statute; see: War Crimes; Grave Breaches; Serious Violations of
the Laws and Customs of War]. Furthermore, certain conduct is so manifestly
inconsistent with the principle of humanity that it is criminalised even when
both perpetrator and victim are affiliated to the same party to the armed con-
flict [arts. 12–13 gci; arts. 12–13 gcii; 2016 icrc Commentary gci, pp. 191–192].
This of course does not mean that soldiers may not be intentionally exposed
to danger or risk of suffering from the adverse party, for that is their essential
function. But it does underscore that they may not be treated inhumanely by
their comrades, when they are wounded, sick, or shipwrecked in international
armed conflict [see: Wounded and Sick; Shipwrecked], or in the sense that
they are subjected to conduct which is prohibited per se due to its inhumane
nature. This includes, but is not limited to, the conduct prohibited under Com-
mon Article 3 GCs [see: Common Article 3]. Thus, along similar lines, the icc
has confirmed that the protection against rape and other grave sexual violence
committed in the context of armed conflict is likewise absolute [Judgment on
the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s Chal-
lenge to the Jurisdiction of the Court in respect of Counts 6 and 9”, Ntaganda,
icc, Appeals Chamber, paras. 51, 63–65, 67–68; see: Child Soldiers].
Certain war crimes also expressly give effect to the principle of humanity in
the conduct of hostilities. This is most apparent in the absolute prohibition of
certain means or methods of war, widely accepted both in customary law and
relevant treaties [see e.g. Geneva Gas Protocol (1925); Dum-Dum (Expand-
ing) Bullets]. Yet consensus on such questions is particularly hard-won and
debate continues to be lively in this area, even once prohibitive treaties (for
example, regarding the use of anti-personnel mines and certain kinds of clus-
ter munitions) have been ratified by a significant number of States. What is
inhumane in the conduct of hostilities in armed conflict, which itself is pro-
verbially “hell”, thus remains a markedly vexed question. It may be indicative
in this context that icc States parties have thus far made no move to designate
certain weapons expressly as being “of a nature to cause superfluous or un-
necessary suffering” [art. 8(2)(b)(xx) icc Statute; see: Superfluous Injury and
Unnecessary Suffering].
Bibliography
A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ 11(1) ejil (2000).
R. Coupland, ‘Humanity: What is it and How Does it Influence International Law?’
83(844) irrc (2001).
Humiliating and Degrading Treatment 399
K. Larsen et al. (eds.), Searching for a ‘Principle of Humanity’ in International

T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Con-
science’, 94(1) ajil (2000a).
T. Meron, ‘The Humanization of Humanitarian Law’, 94(2) ajil (2000b).
Humiliating and Degrading Treatment. Humiliating and degrading treat-

ment violating the dignity of a person is defined as a war crime of outrages
upon personal dignity, applicable in both international and non-international
armed conflicts [art. 8(2)(b)(xxi), 8(2)(c)(ii) icc Statute; rule 90 icrc Custom-
ary ihl Study]. The severity of the humiliating or degrading treatment must be
of a degree as to be generally recognized as an outrage upon personal dignity
[see: Outrage upon Personal Dignity].
Common Article 3 GCs contains prohibitions against humiliating or de-
grading treatment [see: Common Article 3]. The Convention Against Torture,
referencing both the udhr and the iccpr, prohibits inhuman or degrading
treatment or punishment and defines the conduct in the negative, as acts that
do not amount to torture under Article 1 but are still considered cruel, inhu-
man or degrading treatment or punishment. The echr also contains a prohi-
bition on degrading treatment and punishment [art. 3 echr].
The icty defined outrages upon personal dignity as requiring that the act
or omission cause serious humiliation, degradation or otherwise be a serious
attack on human dignity [Judgement, Kunarac et al., icty, Appeals Chamber,
para. 161]. In assessing what types of acts or omissions constitute outrages upon
personal dignity, an objective criterion is used. In particular, the humiliating or
degrading character of an act or omission must be so intense that it would gen-
erally be considered to cause serious humiliation, degradation, or otherwise be
a serious attack on human dignity. In other words, a reasonable person would
be outraged [Kunarac et al., para. 162]. The mens rea requires that the accused
knew that his act or omission could cause serious humiliation, degradation,
or otherwise be a serious attack on human dignity [Kunarac et al., para. 164].
The precise boundary between torture and humiliating and degrading treat-
ment is difficult to identify [see: Torture]. Whereas torture generally requires
the infliction of severe mental or physical pain or suffering for the specific pur-
poses of gaining information, exacting punishment, or intimidation, humili-
ating and degrading treatment does not contain this requirement. However,
the humiliating and degrading treatment may still involve mental or physical
pain or suffering, but to a lesser severity than torture. An assessment must be
made as to the degree of suffering inflicted on the victim, which involves an
400 Hybrid or Internationalised Tribunals
assessment of the particular circumstances of the case and the characteristics

of the victim.
Sunkyung Kim – the views expressed are those of the author alone and do not
necessarily reflect the views of the Ninth Circuit Court of Appeals
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1
(2005), pp. 315–319.
Hybrid or Internationalised Tribunals. The expressions hybrid, mixed, or in-

ternationalised criminal tribunals refer to tribunals which have been created
to address violations of international criminal law, but which borrow elements
from both national and international legal systems. These tribunals are often
created by way of treaty or agreement, and are mostly locally based courts,
which employ both national and international judges and staff.
Examples of hybrid tribunals include the scsl, the eccc, the Special Pan-
els for Serious Crimes in East Timor (East Timor Panels), the Regulation 64
Panels in Kosovo, the War Crimes Chamber in the State Court of Bosnia and
Herzegovina (wcc), and the stl. More recent examples are represented by the
Extraordinary African Chambers and the Kosovo Specialist Chambers.
Each of these judicial institutions has unique features, which relate to the
manner in which they were created, scope of jurisdiction, composition of judg-
es and staff, physical location, applicable law and the relationship with the
relevant domestic legal system.
The scsl and eccc, as entities, were created by way of agreement between
the respective national governments and the UN. However, strictly speaking,
the eccc is considered to be a national court, which is assisted by the UN.
While a similar agreement was signed between the government of Lebanon
and the UN, this was never ratified by the Lebanese Parliament and thus the
stl was established following unsc Resolution 1757 (2007). The wcc was es-
tablished following an agreement between the Bosnian government and the
Office of the High Representative. The East Timor Panels and the Regulation
64 Panels in Kosovo were established by the UN Transitional Authority in East
Timor and the UN Interim Administration Mission in Kosovo (unmik) respec-
tively. The Extraordinary African Chambers were established by way of agree-
ment between the African Union and Senegal to try crimes committed in Chad
during Hissène Habré’s regime and, similarly to the eccc, is meant to be a
national jurisdiction with an international assistance component. The Kosovo
Hybrid or Internationalised Tribunals 401
Specialist Chambers were created with the support of, and following an agree-
ment with, the European Union.
These hybrid courts were often created to have jurisdiction over war crimes
in situations where the affected States were in the midst of or still recovering
from armed conflict and needed international pressure, encouragement, assis-
tance and/or support to run independent and fair trials for alleged atrocities.
Having regard to the need to preserve impartiality, hybrid tribunals employed
international judges and staff with the goal of applying international best
practices with respect to fair trial rights [see: Fair Trial]. At the same time,
the hybrid structure, as opposed to the purely international criminal tribunals,
allows for varying degrees of national ownership or involvement in the judicial
process. This is achieved through locating the court in or closer to the territory
where the alleged crimes were committed, the employment of national staff
and judges, and the application of domestic substantive and/or procedural
laws as a complement to international law. These hybrid courts can be created
as independent bodies or form part of the domestic legal structure.
Resort to hybrid tribunals developed on the basis that there was no single
approach to respond to mass atrocities that occur in different political and
legal circumstances. The future of such hybrid tribunals is uncertain, but there
could still be a role for new hybrid tribunals to fill gaps left by the icc or other
accountability mechanisms. In this regard, there have recently been discus-
sions about the possibility of creating hybrid judicial structures to address
the armed conflict which occurred in Sri Lanka, while a special court for the
Central African Republic as well as the International, Independent and Impar-
tial Mechanism for the Syrian Arab Republic are already in the early stage of
operations.
These hybrid tribunals have faced numerous political and financial chal-
lenges to their creation, jurisdiction, and functioning but have still contributed
to the body of law which international scholars and practitioners can draw
upon in relation to war crimes and the adjudication of criminal responsibility
for such crimes. For example, the jurisprudence of the scsl has developed or
provided judicial guidance on issues including the use of child soldiers, forced
marriage, attacks against UN peace-keepers, sovereign immunity, and protec-
tion of witnesses. The eccc has developed the law on the role and partici-
pation of civil parties in International Criminal Trials, bridged a gap between
World War ii jurisprudence and the jurisprudence of the ad-hoc tribunals, and
developed a different view on the law relating to liability for joint criminal
enterprise. While there are justifiable criticisms about the selectivity and the
political challenges faced by many of the hybrid judicial structures, ultimately
402 Implementation
they have contributed to determining the truth and criminal responsibility

for mass crimes in circumstances where they otherwise may never have been
adjudicated.
of Cambodia
Bibliography
A. Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against
International Criminality’, in C.P.R. Romano, A. Nollkaemper, J.K. Kleffner (eds.),
Internationalized Criminal Courts (2004).
L. Raub, Positioning Hybrid Tribunals in International Criminal Justice, 41 N.Y.U. J Int’l
L. & Pol. (2008–2009).
S. Williams, Hybrid and Internationalised Criminal Tribunals (2012).
Implementation. Measures of implementation aim at ensuring that rules of

ihl are fully respected. In a broad sense, they strive to make rules of ihl work.
In some references and contexts, the notion of implementation extends to and
comprises enforcement, though usually both terms are distinct.
A non-exhaustive list of essential implementation activities comprises the
translation of ihl treaties and customary ihl rules [see: Translation]; dissem-
ination of ihl [see: Dissemination]; identification, marking, and protecting
specially protected persons, objects, and localities [see: Precautions, Passive];
prevention of misuse and improper use of protected emblems, in particular
the red cross, red crescent and red crystal [see: Emblem]; the determination
and training of qualified personnel being endowed with certain protective
tasks under ihl [see: Qualified Persons]; and the prosecution of violations of
ihl [see: Penal Sanctions and Legislation; Penal Prosecution].
The majority of implementation measures are taken on the domestic level,
starting with an act of transformation of the rule of ihl into a rule of national
law. Domestic implementation provides the special and specific legal infra-
structure for rules of ihl to be applied and employed by different actors. In-
deed, these actors may need to contribute to the application of a rule in a form
and with the instruments they are used to in their daily routines.
Only relatively few rules of ihl are self-executing and do not necessar-
ily need an implementing legislation in order to be meaningful to and/or ap-
plicable by the relevant actors. An example of such a self-executing norm is
the prohibition to conduct indiscriminate attacks [art. 51(4) api] or to make
the civilian population as such, as well as individual civilians, the object of
Implementation 403
attack [art. 51(2) api; rule 1 icrc Customary ihl Study; see: Attacks against
Civilians and Persons Hors de Combat]. Even in cases where the actors in-
volved are not aware of the exact legal aspects and dimensions of the principle
of distinction and the dimensions of attacks, it can reasonably be expected
that persons taking a direct part in hostilities will know what type of behav-
iour is expected by the rule – assuming that they know the rule. Conversely,
the closely related prohibition to spread terror among the civilian population
according to Article 51(2) api is considerably less self-executing [see also: rule
2 icrc Customary ihl Study; see: Terrorism (ihl)]. At least, the notion of
“spreading terror” in the context of armed conflict requires an explanation
of the legal dimensions of “terror” prohibited under ihl and, in particular,
of examples of “prohibited acts of terror” in order to increase the probability
that parties to the conflict, willing to apply ihl, are actually in a position to
do so.
Implementation is particularly important for ihl to be applied by members
of the armed forces. In order to ensure that humanitarian norms are not only
known to members of the armed forces via dissemination, but also understood
and operationalized, States usually break down ihl treaties and customary
ihl into military manuals, which are applicable on a general basis and to all
members of its armed forces [see: Military Manuals]. Military manuals very
often combine international and national legal provisions and translate them
into operationally relevant norms. So-called rules of engagement constitute
directives delineating the circumstances and limitations of the behaviour of
members of the armed forces in the context of specific operations [see: Rules
of Engagement].
On a general level, certain areas of ihl specifically necessitate legal infra-
structure. For instance, sanctions for violations of ihl require enacting respec-
tive criminal and disciplinary law [see: Discipline]. In addition, a specific sta-
tus conferred on persons (combatants, medical and religious personnel, civil
defence personnel), objects (civilian hospitals, medical installations, civil de-
fence installations) or institutions (National Societies of the Red Cross and Red
Crescent, other voluntary aid societies in terms of Article 26 gci, special orga-
nizations of a non-military character as mentioned in Article 63(2) gciv, the
National Information Bureau) under ihl needs to be specified under domestic
law. For ihl to be actually applied, it is paramount that not only parties to the
conflict know that a specific object has a certain status (e.g. a civilian hospital),
but also that domestic public authorities are aware of this fact and have imple-
mented relevant domestic administrative and private law to this effect. Like-
wise, it is essential that administrative, medical, and support personnel know
about the required behaviour arising from the characteristics of such a status.
404 Improvised Explosive Devices
An even more detailed implementation of the immunity of civilian hospitals,

for example, elaborates on content, form, and regularity of drills and exercises.
Measures of implementation may be enacted both in times of armed con-
flict and in times of peace. The more implementation measures are taken
already before the outbreak of hostilities, the more probable it is that rules of
ihl become effective and are observed. At the same time, in practice, it is of-
ten difficult for potential parties to an armed conflict and individuals involved
to conceptualize the practical ramifications of legal protection in armed con-
flict and to accept the ensuing necessities in terms of administrative, human
resources, and financial investment. This holds in particular true in contexts
where the likelihood of an international or non-international armed conflict is
perceived as limited.
Probably the most difficult ihl treaty to implement effectively is the 1954
Convention for the Protection of Cultural Property [see: Hague Convention
for the Protection of Cultural Property (1954) and its Protocols]. The vast
majority of its operative provisions are applicable in peace-time and require
implementation already in time of peace. The mere identification and mark-
ing of cultural property with a distinctive emblem, in order to facilitate its rec-
ognition in the conduct of hostilities, constitutes a considerable effort in terms
of the administrative, human resources, and financial burden, which States
very often renounce to undertake.
Implementation is the critical precondition for ihl norms to effectively reg-
ulate the behaviour of parties to armed conflicts. It is also a precondition for
the enforcement of ihl, as no regulation may be enforced which is not legally
binding on the actor expected to apply it and which is not made applicable in
the actor’s actual behaviour.
Bibliography
V. Bernard, M.C. Nikolova, ‘Generating Respect for the Law: The Need for Persis-
tence and Imagination’, in Éditions Yvon Blais (ed.), Hommage à Jean Pictet par le
Concours de Droit International Humanitaire Jean Pictet (2016).
M. Sassòli, ‘The Implementation of International Humanitarian Law: Current and
Inherent Challenges’, 10 yihl (2007).
Improvised Explosive Devices. Improvised explosive devices (ieds) have

garnered much attention in recent years, primarily due to the use of such
weapons by non-State armed groups and the heavy toll they have inflicted on
Improvised Explosive Devices 405
civilians and civilian populations. ieds are not specifically defined in ihl, but
they are covered by the original and amended versions of Protocol ii ccw [see:
Convention on Certain Conventional Weapons (1980); Landmines; Booby-
Traps]. Although ieds are not defined in these instruments, the concept is en-
veloped into the definition of an “other device” and presented as an example
of such devices in amended Protocol ii ccw. Amended Protocol ii ccw de-
fines “other devices” as follows: “[o]ther devices’ means manually-emplaced
munitions and devices including improvised explosive devices designed to kill,
injure or damage and which are activated manually, by remote control or auto-
matically after a lapse of time” [art. 2(5) amended Protocol ii ccw].
Since 2009, expert work in the ccw has devoted attention to the problems
of ieds, in military and humanitarian terms, and adopted a working definition
to facilitate their work and discussions. Although not formally negotiated and
adopted by States parties, the definition guiding the work of the expert group
is as follows: “[a]n ied is an explosive device placed or fabricated in an im-
provised manner and incorporating destructive, lethal, noxious, pyrotechnic,
or incendiary chemicals. An ied is designed to destroy, incapacitate, harass,
or distract. It may incorporate military stores or be devised wholly from non-
military components” [Group of Experts of the States Parties to Amended Pro-
tocol ii ccw, Discussion Paper 1 (2009)].
Although there are variations, this definition is similar to that used by nato
and the UN [nato, nato Glossary of Terms and Definitions: Listing Terms of
Military Significance and Their Definitions for Use in nato, AAP-06 (2013),
p. 2-I-2; unsg, Report: Countering the Threat Posed by Improvised Explosive
Devices (2016), p. 7].
One important point to highlight in surveying these definitions is that, un-
der amended Protocol ii ccw, a victim-activated munition is not considered
to be an “other device”. Rather, such weapons are classified as mines and po-
tentially booby traps covered by the relevant provisions of the Protocol [see:
Landmines; Booby-Traps]. This approach is consistent with that taken by the
Convention on the Prohibition of Anti-Personnel Mines [see: Anti-Personnel
Mine Ban Convention (1997)]. Thus, in ihl, a victim-activated improvised
explosive device is more properly classified as an improvised mine.
Bibliography
J. Revill, Improvised Explosive Devices: The Paradigmatic Weapon of New Wars (2016).
Small Arms Survey, Infernal Machines: Improvised Explosive Devices (2013).
A. Wilkinson, J. Bevan, I. Biddle, ‘Improvised Explosive Devices (ieds): An Introduc-
tion’, in J. Bevan (ed.), Conventional Ammunition in Surplus (2008).
406 Incendiary Weapons
Incendiary Weapons. The 1980 Protocol on Prohibitions or Restrictions on the

Use of Incendiary Weapons (Protocol iii) ccw [see: Convention on Certain
Conventional Weapons (1980)] defines an incendiary weapon as “any weapon
or munition which is primarily designed to set fire to objects or to cause burn
injury to persons through the action of flame, heat, or a combination there-
of, produced by a chemical reaction of a substance delivered on the target”
[art. 1(1) Protocol iii ccw].
Incendiary weapons can take various forms, including artillery projectiles
[see: Artillery], bombs, flame-throwers, grenades, improvised munitions (e.g.
“barrel bombs”), mines, or rockets. Probably the most notorious incendiary
substance used in weapons is napalm, which was widely used in World War ii
in flamethrowers and air-dropped bombs. Napalm became used as a generic
term to refer to incendiary substances developed later, even if these contained
different chemical components. Another well-known incendiary substance is
white phosphorus, which ignites spontaneously in contact with atmospheric
oxygen and continues to burn until it is depleted or oxygen supply is cut off.
Certain incendiary substances used in weapons can produce temperatures of
over 2000 degrees Celsius, sufficient to melt metal structures. Some react vio-
lently in contact with water.
Depending on their design and delivery method, incendiary weapons can
affect a wide area. The heat can also ignite secondary fires that, under certain
conditions, can coalesce into extremely destructive firestorms.
Incendiary weapons cause severe injury, including through thermal and
chemical burns, pulmonary damage due to the inhalation of smoke and tox-
ic fumes, circulatory shock, heat stroke, asphyxiation and poisoning. These
effects are often fatal. The treatment of burn victims is difficult, prolonged,
and intensely painful. Survivors may suffer severe infections and organ failure.
Injuries can result in lifelong deformity, disability, and psychological trauma.
In the 1970s, against the backdrop of extensive use of incendiary weapons in
Vietnam and elsewhere, incendiary weapons were increasingly characterized
as “a category of arms viewed with horror” [unga Resolution 2932 (1972)]. To
protect civilians from the effects of incendiary weapons, 1980 Protocol iii ccw
prohibits the use of “air-delivered incendiary weapons” to attack any military
objective “located within a concentration of civilians” [art. 2(2) Protocol iii
ccw]. The Protocol does not prohibit the launching of incendiary weapons
from the ground or the sea into an area containing a concentration of civilians,
but such an attack is permissible only when the targeted military objective “is
clearly separated from the concentration of civilians and all feasible precau-
tions are taken with a view to limiting the incendiary effects to the military
Incendiary Weapons 407
objective”, and to avoiding or, at least, minimizing incidental civilian harm

[art. 2(3) Protocol iii ccw].
Opinions on the legality of incendiary weapons diverge and it is unclear to
what extent the Protocol’s provisions have become part of customary ihl. In
the determination of the icrc, State practice establishes as a norm of custom-
ary international law applicable in both international and non-international
armed conflicts that “if incendiary weapons are used, particular care must be
taken to avoid, and in any event to minimize, incidental loss of civilian life,
injury to civilians and damage to civilian objects” [rule 84 icrc Customary ihl
Study; see: Precautions, Active]. Furthermore, due to their propensity to cause
injury and suffering beyond what is necessary to place an enemy combatant
hors de combat, the icrc considers that, as a norm of customary international
law applicable in both international and non-international armed conflicts,
“the anti-personnel use of incendiary weapons is prohibited, unless it is not
feasible to use a less harmful weapon to render a person hors de combat” [rule
85 icrc Customary ihl Study].
In spite of customary and treaty-based restrictions, incendiary weapons con-
tinue to cause grave harm. To increase the humanitarian benefit of Protocol iii
ccw, it has been suggested to revise the Protocol so as to cover weapons and
munitions which, albeit not “primarily designed” to do so, cause harm through
heat or fire in practice [art. 1(1)(b) Protocol iii ccw], such as certain smoke or
illumination projectiles. In this regard, Human Rights Watch and the Harvard
Law School’s International Human Rights Clinic propose that the prohibition
on the use of incendiary weapons for attacks on targets within a concentration
of civilians should apply regardless of the method of delivery [Human Rights
Watch, Harvard Law School’s International Human Rights Clinic, The Human
Suffering Caused by Incendiary Munitions – Memorandum to Convention on
Conventional Weapons Delegates (2011)].
Bibliography
Human Rights Watch, Harvard Law School’s International Human Rights Clinic, ‘Mem-
orandum to Convention on Conventional Weapons Delegates – The Human Suffer-
ing Caused by Incendiary Munitions’ (2011).
‘Incendiary Weapons’, Weapons Law Encyclopedia.
F. Kalshoven, ‘Arms, Armaments and International Law’, in Collected Courses of the
Hague Academy of International Law (1985), pp. 256–259.
M. Lumsden, Incendiary Weapons (1975).
408 Indiscriminate Attacks
Indiscriminate Attacks. Indiscriminate attacks are prohibited under ihl in

international and non-international armed conflict. According to both treaty
and customary international law, indiscriminate attacks are defined as “(a)
those which are not directed at a specific military objective; (b) those which
employ a method or means of combat which cannot be directed at a specific
military objective; or (c) those which employ a method or means of combat
the effects of which cannot be limited as required by this Protocol; and con-
sequently, in each such case, are of a nature to strike military objectives and
civilians or civilian objects without distinction” [art. 51(4) api; rule 12 icrc
Customary ihl Study].
The prohibition of indiscriminate attacks is intrinsically linked to the prin-
ciple of distinction [see: Distinction], as its main objective is to spare the civil-
ian population from the effects of attack [see: Civilians; Civilian Population].
It differs from the prohibition to directly attack civilians in that, in the context
of a direct attack, the attacker directly targets civilians, while an attacker in-
volved in an indiscriminate attack disregards civilian damages or injury [see:
Attacks against Civilians and Persons Hors de Combat]. According to Article
85(3)(c) api, “launching an indiscriminate attack affecting the civilian popula-
tion or civilian objects in the knowledge that such attack will cause excessive
loss of life, injury to civilians or damage to civilian objects” is a grave breach
of ihl and therefore a war crime [see: Grave Breaches]. This has been con-
firmed in Article 8(2)(b)(iv) icc Statute for international armed conflicts. In
addition, Article 8(2)(b)(xx) icc Statute prohibits the use of weapons “which
are inherently indiscriminate in violation of the international law of armed
conflict”.
Indiscriminate attacks are exemplified by the two types of attacks men-
tioned in Article 51(5) api: (a) so-called “carpet bombing”, that is “an attack by
bombardment by any methods or means which treats as a single military ob-
jective a number of clearly separated and distinct military objectives located
in a city, town, village or other area containing a similar concentration of civil-
ians or civilian objects”; and (b) violations of the principle of proportionality,
namely an attack “which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military advan-
tage anticipated” [see: Proportionality].
1. Historical Origin
Compared to the moral and religious development of the basis for the princi-
ple of distinction in the Middle Ages, the prohibition of indiscriminate attacks
is a more recent development, which first arose in the legal practice of the
nineteenth century and led to its status as a rule of customary law [1987 icrc
Indiscriminate Attacks 409
Commentary api, paras. 1823–1827]. The first attempt to codify the prohibition
of indiscriminate attacks in the area of air warfare manifested itself in Article
24(3) of the 1923 Hague Rules for Air Warfare. Although they have to be seen
as clarifying the customary law rule at that time, the 1923 Hague Rules for Air
Warfare never entered into force and remained the last attempt at codification
until the 1977 Diplomatic Conference which brought about the adoption of the
respective provision in api [1987 icrc Commentary the respective provision
in api, para. 1924].
The drafting process leading to the current form of Article 51(4) and (5) api
was not an easy one. There were voices that wanted to limit the prohibition to
the statement of the first sentence of Paragraph 4: “[i]ndiscriminate attacks
are prohibited” [1987 icrc Commentary api, para. 1950]. However, due to the
experiences from World War ii, a more detailed definition of indiscriminate
attacks was agreed upon.
2. Article 51(4) api

Article 51(4) api covers two aspects of ihl relating to indiscriminate at-
tacks: the indiscriminate use of weapons (i.e. the method of warfare) and
the use of indiscriminate weapons as such (i.e. means of warfare) [see: Hos-
tilities, Conduct of]. In this regard, Article 51(4) api sets forth a three-step
approach.
Subparagraph (a) deals with attacks not directed at a specific military ob-
jective and refers to the manner in which a particular attack is carried out [W.
Boothby, Weapons and the Law of Armed Conflict (2009), p. 78]. This is the
clearest consequence of the principle of distinction. Crucial for the proper im-
plementation of this subparagraph is the definition of a military objective and
it must be clarified in advance whether the attack is directed against such a
military objective [see: Military Objectives]. As a consequence, military strat-
egies like “blind fire” into territory controlled by the enemy is prohibited, as
is the release of bombs over the territory of the adversary when the original
objective was missed [S. Oeter, ‘Means and Methods of Combat’, in D. Fleck
(ed.), Handbook of International Humanitarian Law (2013), p. 191]. While at-
tacking a specific military objective, the attacker might spread his fire over a
certain area (“harassing fire” or “interdiction fire”) against strategic points, but
the respective target must be able to be identified as one single military target.
In this regard, the strategy of “area bombardment” in which several distinct
military objectives are treated as one single target is prohibited, due to the
danger that in these cases such untargeted fire will endanger civilians and the
civilian population.
Subparagraph (b) encompasses the inherent ability or inability of either
the means or methods of warfare to be directed against a specific military
410 Indiscriminate Attacks
objective [Boothby, p. 78]. This refers especially to the first historic examples
of remote controlled weapons, like the German V-1 or V-2 bomb, which, be-
cause of their inaccuracy, could not properly target a military objective and
were shot into the broad direction of British cities during World War ii. An-
other example would be the way Scud-Missiles were shot by Iraq in the general
direction of Tel-Aviv. In a similar way, it has been discussed that the use of land
or sea mines can constitute an attack in the spirit of this subparagraph when “a
person was directly endangered by such a mine” [1987 icrc Commentary api,
paras. 1959–60; see: Landmines].
Finally, sub-paragraph (c) prohibits the use of methods or means of combat
the effects of which cannot be limited as required by api. This is sometimes
seen as the most controversial part of the definition of indiscriminate attacks
[Oeter, p. 193]. These obligations need to be understood as “the rationale and
essence of the principle of distinction” [Boothby, p. 78]. Considering the pos-
sibility that the use of nuclear weapons could violate this paragraph, a number
of States lodged a reservation with regard to this provision.
3. Article 51(5) api

While Article 51(4)(a)-(c) api describes indiscriminate attacks in an abstract
way, Article 51(5) api gives two more concrete examples. It needs to be high-
lighted that these are just two examples “among others”, so it is not to be seen
as an exhaustive list.
Article 51(5)(a) api concerns the type of attack known as “area bombard-
ment” during World War ii, which was seen as legal by the allied powers at that
time [Oeter, p. 196]. While there has been a long-term discussion about the
legality of these attacks, States were reluctant to lay down an explicit prohibi-
tion. Therefore, subparagraph (a) now reflects an innovation. In the end, this
is a further exemplification of the more abstract category of indiscriminate at-
tacks contained in Article 51(4)(b) api. It is important to clarify that this provi-
sion is only applicable when the military objectives are “clearly separated and
distinct” [Boothby, pp. 78–79].
Where there is no possibility for the commander to make a clear distinc-
tion between the different targeted objectives, Article 51(5)(b) api provides for
an explicit codification of the principle of proportionality. This provision thus
clarifies that a violation of the principle of proportionality is seen as a breach
of the prohibition of indiscriminate attacks. While the exact wording of this
subparagraph was the object of extensive discussions, it is striking that neither
the word “disproportionate” nor the word “extensive” was chosen, but rather
the seemingly stronger term “excessive”. According to his own account, Frits
Kalshoven suggested this terminology, since States originally could not agree
Indiscriminate Attacks 411
on a formulation [ila Study Group, The Conduct of Hostilities and Interna-

tional Humanitarian Law – Final Report (2017), fn. 135].
4. Customary ihl
The icrc Customary ihl Study re-affirms the customary law status of the
prohibition of indiscriminate attacks and clearly states that both parts of this
prohibition reflect customary ihl in both international and non-international
armed conflict (that is the general prohibition and the specific instances of
indiscriminate attacks) [rules 11–13 icrc Customary ihl Study].
Interestingly, the prohibition of indiscriminate attacks is placed under the
general customary principle of distinction, labelled as one of its “derivative
obligations”, alongside the proportionality and precautionary principles [J.F.
Quéguiner, ‘The Principle of Distinction: Beyond an Obligation of Customary
International Humanitarian Law’, in H.M. Hensel (ed.), The Legitimate Use of
Military Force. The Just War Tradition and the Customary Law of Armed Con-
flict (2008), p. 165].
5. Critical Remarks
The codification of the prohibition of indiscriminate attacks in Article 51(4)
and (5) api is one of the most important achievements in recent codification
attempts of ihl. It is a direct consequence of the lessons learned especially
from World War ii. In this regard, it is unfortunate that api has not achieved
universal ratification, although the principle must be seen as having gained
customary ihl status. Moreover, modern means and methods of warfare, such
as cyber-attacks and remote-controlled drones, pose an additional challenge
to ensuring compliance with this prohibition [see: Cyber Warfare; Drones].
From an international criminal law perspective, it might be one of the
most difficult war crimes to prosecute because of the inherent relativity of
the principle of proportionality. The war crime of violating the prohibition of
indiscriminate attacks is not explicitly included in the Rome Statute as such
(notwithstanding the criminalisation of violations of the principle of propor-
tionality, as well as the use of weapons which are inherently indiscriminate,
both in international armed conflict), although it is included as an offence in
the legislation of numerous States [J.-M. Henckaerts, L. Doswald-Beck, Cus-
tomary International Humanitarian Law, Vol. i (2005), p. 589]. However, ac-
cording to the jurisprudence of the icj and the icty, indiscriminate attacks
can amount to a direct attack against civilians [Advisory Opinion, Legality of
the Threat or Use of Nuclear Weapons, icj, para. 243; Judgment, Galić, icty,
Trial Chamber i, para. 57]. The Rome Statute penalises direct attacks against
civilians and civilian objects in Article 8(2)(b)(i)-(ii) and (e)(i) icc Statute.
412 Individual Criminal Responsibility
Bibliography
W. Boothby, Weapons and the Law of Armed Conflict (2009), pp. 69 et seq.
(2016), pp. 146 et seq.
T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under Inter-
national Humanitarian Law – Challenges of 21st Century Warfare (2017).
S. Oeter, ‘Means and Methods of Combat’, in D. Fleck (ed.), Handbook of International
Individual Criminal Responsibility. The rise of individual criminal responsi-

bility for violations of international law represents a relatively recent chapter
in the history of this discipline, which until the twentieth century conferred
rights and duties mostly upon States. As such, individual criminal responsi-
bility is a regular consequence of an evolution whereby individuals also hold
some rights and duties stemming from international law.
A trend in this sense already emerged after World War i when, nota-
bly, Article 228 of the Treaty of Versailles recognized the possibility of put-
ting individuals on trial for violations of the laws and customs of war. The
Nuremberg trials held after World War ii, however, represented a defining mo-
ment for this development. The Nuremberg judges famously concluded that
“[c]rimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced” [Judgment, Goering et al., Trial of
the Major War Criminals, imt, p. 223]. The Charter of the imt at Nuremberg
contained two rules that proved to be crucial for the development of an effec-
tive doctrine of individual criminal responsibility: on the one hand, Article 7
affirmed that a defendant’s official capacity would not relieve him of respon-
sibility; on the other hand, Article 8 established that the defence of superior
orders was unavailable to defendants [see: Superior Orders, Defence of]. The
resulting combined effect made it impossible for defendants to pass the buck
of responsibility up to their superiors in the chain of command, who could
have potentially avoided punishment because of the immunity recognized
to State officials. On the contrary, the unavailability of immunities and of the
defence of superior orders signalled that State officials were to be held account-
able for their misdeeds alongside their State. Individual criminal responsibility,
indeed, should be seen as going hand-in-hand with State responsibility in
Individual Criminal Responsibility 413
securing the implementation and enforcement of international law [see: State

Responsibility].
In particular, individual criminal responsibility for violations of interna-
tional law has traditionally been attached to particularly serious behaviour, e.g.
acts of genocide, crimes against humanity, war crimes, and acts of aggression,
which are often identified as the “core international crimes” [e.g. arts. 5–8bis
icc Statute; arts. 2–5 icty Statute; arts. 2–4 ictr Statute; see: International
Criminal Law].
These violations of international law are often carried out by a plurality of
people and/or in contexts of emergency, armed conflict, or generalized vio-
lence. Individuals may be involved in crimes in various capacities, but criminal
responsibility arises only for some specific types of involvement, also known
as “modes of liability” or “forms of responsibility”. Their precise and foresee-
able definition is fundamental to attribute individual responsibility for what
often can be described as collective criminality. In this regard, the statutes of
international criminal tribunals usually contain a list of modes of liability to be
applied in the relevant proceedings [e.g. art. 25 icc Statute; art. 7 icty Statute;
art. 6 ictr Statute].
“Commission”, also known as “perpetration” is the principal mode of liabil-
ity for a crime. Crimes can be perpetrated by an individual directly (i.e. when
he or she carries out all the elements of the crime as defined by the law), by an
individual indirectly (i.e. when he or she carries out the elements of the crime
through another person, regardless of whether the latter is criminally respon-
sible or not), or by more individuals jointly. In order to deal with this last case,
different tribunals have adopted dissimilar doctrines. In particular, the icty
has used the doctrine of Joint Criminal Enterprise, deemed to have a custom-
ary basis, according to which all individuals sharing a common criminal plan
are responsible for all crimes involved in the plan’s implementation, as long as
they have made a significant contribution to such implementation. According
to the broadest reading of such doctrine, those who share the plan would also
be responsible for the perpetration of all the crimes that, despite not forming
part of the original plan, constituted a reasonably foreseeable consequence
of the plan’s implementation [Judgment, Tadić, icty, Appeals Chamber, pa-
ras. 227–228]. Joint Criminal Enterprise has been used as a mode of liability
also by other tribunals, including the ictr and the scsl. The icc, instead, has
had recourse to a different doctrine to deal with joint perpetration, namely
the theory of co-perpetration through control over the crime. According to
such doctrine, participants in a common plan involving the perpetration of
one or more crimes are responsible for such crimes if they shared the plan and
made an essential contribution to its implementation [Judgment, Lubanga,
414 Inhuman Treatment
icc, Trial Chamber, paras. 981–1018]. Such essential contribution would be evi-
dence of “control over the crime”, in that withholding it could have frustrated
or significantly modified the common criminal plan’s execution.
Individuals who have not perpetrated a crime can still be found to be crimi-
nally responsible for a variety of other (so-called “accessory”) forms of partici-
pation. Like in many domestic systems, ordering, instigating (in the language
of Article 25(3)(b) icc Statute, “soliciting or inducing”), or aiding and abetting
the perpetration of a crime would give rise to individual criminal responsibil-
ity in international law as well. Peculiar to international law is the mode of lia-
bility known as “command/superior responsibility” [see e.g. art. 28 icc Statute;
art. 7(3) icty Statute], pursuant to which those military or civilian superiors
who culpably fail to prevent or punish crimes committed by their subordinates
may be held criminally liable [see: Command Responsibility].
Finally, it should be recalled that individual criminal responsibility could
be excluded in certain occasions [e.g. arts. 31–33 icc Statute]. Specific cir-
cumstances (e.g. self-defence) legally justify the performance of a conduct
that would otherwise constitute a crime. Other circumstances (e.g. involun-
tary intoxication or duress) may excuse individuals who performed an illegal
conduct, exonerating them from criminal responsibility. As mentioned, since
the Nuremberg trials, the fact that an individual acted pursuant to superior
orders does not relieve him or her from responsibility. However, Article 33 icc
Statute seems to have introduced (for war crimes only) an exception to the
unavailability of such defence, when the defendant was not aware of the or-
der’s illegality and such illegality was not manifest [see: Superior Orders, De-
fence of].
Antonio Coco – the views expressed are those of the author alone and do not
Bibliography
Eser, A., ‘Individual Criminal Responsibility’, in A. Cassese, P. Gaeta, J.R.W.D. Jones
(eds.), The Rome Statute of the International Criminal Court: A Commentary (2002).
Schabas, W., The International Criminal Court: A Commentary on the Rome Statute
(2016), pp. 539–671.
E. van Sliedregt, Individual Criminal Responsibility in International Law (2013).
Information Bureaux; see: National Information Bureaux
Inhuman Treatment. The prohibition on inhuman treatment is a core ihl

principle. Indeed, after World War ii, it was placed at the centre of the law
Inhuman Treatment 415
on armed conflict, and was described as “in truth the leitmotiv” of the four
1949 GCs [1958 icrc Commentary gciv, p. 204]. Inhuman treatment involves
physical or mental pain or suffering of a certain degree of severity. While
closely linked to torture [see: Torture], the two notions are distinct. Accord-
ing to the 1984 Convention Against Torture, torture requires that suffering
be inflicted with the involvement of a State official for a particular purpose,
often the attainment of information; inhuman treatment can be carried out
for any purpose at all. According to the icc Statute, torture must be inflicted
upon a person who is in the custody of, or under the control of the perpetrator
(who need not be a State official), whereas inhuman treatment has no such
limitation.
The definition of what constitutes inhuman treatment is broad. To a certain
extent, the concept must remain flexible and able to evolve over time to cover
new forms of conduct as they emerge, while bearing in mind the constraints
of the principle of legality. Examples of inhuman treatment include incommu-
nicado detention, sensory deprivation, and biological experiments. A number
of otherwise lawful acts may cumulatively amount to inhuman treatment, and
individual acts which are generally lawful, such as strip searches by police, can
constitute inhuman treatment under certain circumstances, such as where
excessive force is used. The maltreatment does not need to be active, as with
corporal punishment, but can also take place in circumstances of negligence/
neglect, as where a person is left for extended periods in solitary confinement
or there is a lack of medical care.
ihl’s prohibition on inhuman treatment is found in multiple provisions of
the GCs, including Common Article 3 GCs [see: Common Article 3]. While
Common Article 3 GCs refers to “cruel treatment” rather than “inhuman treat-
ment”, the substance of these terms is the same in this context. The prohibi-
tion binds State and non-State actors alike, in all types of conflict. Inflicting
inhuman treatment is listed as a grave breach in Articles 50, 51, 130, and 147 of
the four GCs respectively, and as such is covered by the grave breaches regime
applicable in international armed conflict [see: Grave Breaches].
The prohibition on inhuman treatment is by no means unique to ihl. In-
ternational criminal law and ihrl both proscribe such conduct. While these
are three distinct fields of law, the development of inhuman treatment in one
undoubtedly influences the understanding of the concept in the others. The
mens rea element of inhuman treatment is one aspect affected by this overlap.
Under ihl and ihrl, maltreatment does not need to have been deliberately
carried out. However, in the field of international criminal law, the icty has
taken a different approach and has interpreted the crime of inhuman treat-
ment as requiring a degree of intentionality [Judgment, Delalić et al., icty,
416 Internal Disturbances and Tensions
Trial Chamber, para. 543]. Interestingly, this approach is supported by Article

7(1)(k) icc Statute (with regards to inhuman treatment as a crime against hu-
manity), but not by Article 8(2)(a)(ii) and 8(2)(c)(i) icc Statute (with regards
to inhuman treatment as a war crime). Such divergences are perhaps attribut-
able to the different goals of the respective legal fields, but the question of how
this development affects the ihl notion of inhuman treatment remains to be
seen.
Emma Irving – the views expressed are those of the author alone and do not
Bibliography
C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of Ill-
Treatment in International Humanitarian Law’, 89(867) irrc (2007).
M. Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in
Armed Conflict (2014).
M. Nowak, R. Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’,
in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Com-
mentary (2015).
Inhumane Weapons Convention; see: Convention on Certain Conventional

Weapons (1980)
Initiative; see: International Committee of the Red Cross
Integrity; see: Seriously Endangering the Physical or Mental Health or Integ-

rity of Protected Persons
Internal Disturbances and Tensions. Internal disturbances are situations in-

volving clashes characterized by a certain gravity and length, amounting to
a serious disruption of domestic order, including acts of violence. In general,
in such situations, government authorities face groups of persons or dem-
onstrators that express their opposition and discontent, and demand to be
heard. This may occur, for instance, during meetings, gatherings of persons,
demonstrations, national strikes, riots, and even coups d’état. Experts indicate
that even isolated and sporadic acts of violence or situations of fighting be-
tween different factions can be considered to be an internal disturbance [M.
Harroff-Tavel, ‘Action Taken by the International Committee of the Red Cross
Internal Disturbances and Tensions 417
in Situations of Internal Violence’, 294 irrc (1993), pp. 195–220]. The State’s
response usually involves the deployment of police, security forces, or even
armed forces to re-establish law and order.
Tensions differ from disturbances in that they usually denote situations that
do not include direct acts of violence perpetrated by State authorities or groups
of persons. They may be caused for a variety of reasons, including social and
economic problems leading to general discontent (amounting to, for instance,
strikes or civil disobedience), situations of natural disasters or catastrophes
giving rise to an environment of lawlessness (resulting in, for instance, looting
and other infractions), and health crises (such as pandemics, which may entail
wider effects, including a shortage of medication or food supplies).
Accordingly, the main difference between disturbances and tensions re-
volves around the type of response by the State. Even so, authorities may, in re-
sponse to tensions, decide to use force and/or to preventively proclaim a state
of emergency in order to reduce the repercussions of political, social, econom-
ic, or ethnic tension [C. de Rover, To Serve and to Protect: Human Rights and
Humanitarian Law for Police and Security Forces (1998), p. 187].
Disturbances and tensions have been excluded from the scope of ihl, as
they do not amount to protracted armed violence [M.P. Moloeznik, Manual
de Sistemas Comparados de Policía (2010), p. 44; see: International Armed
Conflict; Non-International Armed Conflict; Armed Groups]. For instance,
the provisions of the Rome Statute relating to non-international armed con-
flict do not “apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence or other acts of a similar nature”
[art. 8(2)(d), (f) icc Statute]. Instead, disturbances and tensions often lead to
operations aimed at maintaining or restoring public order [Law Enforcement].
However, there is currently some academic debate regarding the possible
classification of certain specific cases, such as the operations against drug car-
tels in Mexico, as a non-international armed conflict. This view is premised
on the consideration that these organizations have reached such a level of
organization (considering factors such as weaponry, casualties, training, and
impact on the civilian population) that they may meet the threshold to qualify
as armed groups and that the intensity of the violence may not merely be an
internal disturbance but rather a non-international armed conflict. Even so,
this possibility still remains a theoretical one.
Thus, the applicable legal framework covering internal disturbances and
tensions is determined by the national legislation of States, informed by their
obligations under ihrl, which define basic rights and the obligations of the
State that cannot be derogated from even during a state of emergency [see:
418 International Armed Conflict
International Human Rights Law; Customary International Law]. In addi-

tion, soft-law instruments, such as the 1990 UN Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials provide guidelines for law
enforcement officials on how to proceed while using coercive force. Distur-
bances and tensions are, nonetheless, sometimes accompanied by violations
of human rights. Rights particularly endangered in such cases comprise: the
right to life; the right to liberty and security; the right not to be subjected to
torture and cruel, inhuman, or degrading treatment or punishment; and the
right not to be subject to arbitrary arrest or detention. In case of such viola-
tions, the victims and their families may access the national criminal justice
system in accordance with domestic legislation. Should such crimes amount to
crimes against humanity or even genocide, they may potentially have recourse
to the international justice system too, such as the icc, provided that it may
exercise jurisdiction.
Finally, it is worth noting the pressing need for a legal instrument specifi-
cally defining and regulating disturbances and tensions, considering that they
occur increasingly often and involve consequences that – in some cases – are
comparable to those of armed conflicts or lead to an escalation of violence
ultimately resulting in hostilities [Moloeznik, pp. 42–46]. States consider these
situations to be strictly of national concern and are, thus, afraid of constraining
their national sovereignty by agreeing to specific definitions. In this respect,
the international community has refrained from the use of the expressions “in-
ternal disturbances and tensions” and has opted for the more general expres-
sion “other situations of violence”.
Marcos Pablo Moloeznik – the views expressed are those of the author alone
with
Bibliography
C. de Rover, To Serve and to Protect: Human Rights and Humanitarian Law for Police
and Security Forces (1998).
M. Harroff-Tavel, ‘Action Taken by the International Committee of the Red Cross in
Situations of Internal Violence’, 294 irrc (1993).
M.P. Moloeznik, Manual de Sistemas Comparados de Policía (2010).
International Armed Conflict. An armed conflict is characterised as “in-

ternational” (as distinct from “non-international”) when it involves two or
more opposing States [see: Non-International Armed Conflict]. The legal
International Armed Conflict 419
distinction is important because different rules apply to the two categories

of armed conflict. Many find it disconcerting that this disparity in applicable
rules persists. It is primarily the rules on protection of categories of victims
of armed conflict [see: Protected Persons; Occupation] that differ depending
on the legal character of the armed conflict. The rationale for disparate regu-
lation of different types of armed conflict seems counter-intuitive when it is
explained that the rules applicable to the conduct of hostilities apply equally
to both categories of armed conflict [see: Hostilities, Conduct of]. Why then,
given the uniformity of conduct of hostilities rules, can the international com-
munity not determine the common ground on protection of victims of armed
conflict and agree on a unitary set of rules applicable irrespective of the legal
characterisation of an armed conflict? As appealing as such an outcome might
be, the lex lata, including Article 8 icc Statute, maintains the distinction be-
tween international and non-international armed conflicts and applies differ-
ent legal regimes to both.
1. Definition
Neither the GCs nor the APs define what an armed conflict is or specify the
requisite threshold level of exchange of hostilities for the existence of an
armed conflict. The first paragraph of Common Article 2 GCs merely states
that: “the present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High Con-
tracting Parties, even if the state of war is not recognised by one of them”. It is
clear from this provision that the existence of an international armed conflict
is determined de facto and not de jure (by a formal declaration of war and/or
formal recognition of war by both parties). That is an important development
in the law because the humanitarian objectives of the GCs should be applied
as broadly as possible and not be dependent upon formal declarations of war
[2016 icrc Commentary gci, p. 193; see: Common Article 2].
The icty articulated the following definition: “an armed conflict exists
whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or
between such groups within a State” [Decision on the Defence Motion for In-
terlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, para. 70].
The Appeals Chamber’s approach has been cited as the authoritative judi-
cial definition by a multitude of international criminal courts and tribunals.
The definition correctly identifies different thresholds for the existence of
international and non-international armed conflicts with a significantly lower
threshold for an international armed conflict: “whenever there is a resort to
armed force between States” rather than “protracted armed violence between
States and organised armed groups or between such groups […]”.
2. Resort to Armed Force

According to the icty in Tadić, the threshold for an international armed con-
flict is very low – whenever a State resorts to armed force against another State.
The icrc confirms that no specific threshold level of intensity is required to
establish an international armed conflict.
The icrc concedes that there might be circumstances in which members
of a State’s armed forces resort to force ultra vires or in what might be termed
a “border skirmish” or a “naval incident” that neither of the States involved
wants characterised as an international armed conflict [2016 icrc Commen-
tary gci, para. 237]. However, the icrc also asserts that, as soon as one State
has physical custody of members of the armed forces of another State, there
is an international armed conflict and the protective regime of gciii applies
[2016 icrc Commentary gci, para. 239]. For instance, the U.S. claimed the
protection of gciii for a pilot shot down over Lebanon’s Beka’a Valley in 1982
by a Syrian surface-to-air missile, on the basis that an international armed con-
flict existed between the US and Syria over Syrian occupied Lebanese territory
[C. Greenwood, ‘International Humanitarian Law and United Nations Military
Operations’, 1 yihl (1998), p. 7].
It is conceivable that an international armed conflict could be triggered
solely by virtual means if, for example, cyber attacks targeted critical infra-
structure with devastating effects [see: Cyber Warfare]. Most experts agree
that the means of conducting hostilities is less significant than the conse-
quences for the purposes of determining the existence of an international
armed conflict [rule 82 Tallinn Manual 2.0 on the International Law Applicable
to Cyber Operations].
3. Indirect Intervention
A non-international armed conflict between a State’s armed forces and a non-
State armed group can transform into an international armed conflict by the
indirect intervention of a second State in support of the non-State armed
group [see also: Transnational Armed Conflict]. In the Nicaragua case, the
icj decided that alleged violations of ihl by the Contra Rebels could not
be attributed to the U.S. for the purposes of State responsibility [see: State
Responsibility]. The icj determined that U.S. financing, organising, training,
equipping, and supplying the Contras and even U.S. selection of targets and
planning of military operations for the Contras was insufficient to hold the
International Armed Conflict 421
U.S. responsible. The Court decided that the relevant test was one of “effective
control” by the U.S. over the specific “military and paramilitary operations in
the course of which the alleged violations” of ihl were committed [Judgment,
Case concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), icj, para. 115]. The Court determined further that
evidence of such control was lacking.
In Tadić, the icty Appeals Chamber considered the nature of Serbian Gov-
ernment support for the Bosnian Serb military to determine whether that sup-
port was sufficiently extensive to transform an otherwise non-international
armed conflict into an international armed conflict. The Appeals Chamber
considered the icj’s “effective control” test, but decided it was not the appro-
priate test for internationalisation of an armed conflict. The correct test for
these purposes, according to the Chamber, is one of “overall control” “[a]nd
must comprise more than the mere provision of financial assistance or mili-
tary equipment or training. This requirement, however, does not go so far as
to include the issuing of specific orders by the State, or its direction of each
individual operation. Under international law it is by no means necessary that
the controlling authorities should plan all the operations of the units depen-
dent on them, choose their targets, or give specific instructions concerning the
conduct of military operations and any alleged violations of ihl. The control
required by international law may be deemed to exist when a State (or, in the
context of an armed conflict, the party to the conflict) has a role in organis-
ing, coordinating or planning the military actions of the military group, in addi-
tion to financing, training and equipping or providing operational support to
that group” [Judgment, Tadić, icty, Appeals Chamber, para. 137]. The major-
ity of the Appeals Chamber decided that Serbia exercised a sufficient level of
control over the Bosnian-Serb military to determine that Serbia was a party
to the armed conflict with Bosnia-Herzegovina and that, therefore, the armed
conflict was international – involving two opposing States despite the lack of
direct engagement by Serbian government armed forces. This test has been re-
peatedly applied in subsequent icty cases and by other international criminal
courts and tribunals.
In 2007, the icj came to consider the nature of the relationship between
Serbia and the Bosnian Serb military forces to determine whether or not Bos-
nian Serb violations of the 1948 Genocide Convention could be attributed to
Serbia. The icj reaffirmed its “effective control” test and rejected the icty’s
“overall control” test. The icj conceded that the overall control test may well be
“applicable and suitable” for determining whether or not an armed conflict is
international, but distinguished that question from the determination of State
responsibility for the violations of international law by a non-State armed

group. It is clear that the icj’s “effective control” test sets a higher threshold
than that for the icty’s “overall control” test in terms of the level of involve-
ment of the foreign State.
The icrc considers that the icty’s “overall control” test is the most appropri-
ate standard for determining the legal character of an armed conflict because
it better reflects the relationship between the armed group and the third State
[2016 icrc Commentary gci, para. 409]. The icc has also embraced this stan-
dard, albeit without further explanation [Judgment, Lubanga, icc, Trial Cham-
ber, para. 541; Judgment, Katanga, icc, Trial Chamber, para. 1178; Judgment,
Bemba, icc, Trial Chamber, para. 130]. It remains to be seen how these tests
will be applied by international criminal courts and tribunals in the future.
4. Military Occupation
The second paragraph of Common Article 2 GCs states that “[t]he Conven-
tion shall also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no armed
resistance” [see: Common Article 2]. Again, the GCs provide no definition of
a military occupation and it is necessary to refer back to Article 42 of the 1907
Hague Regulations for a definition: “[t]erritory is considered occupied when
it is actually placed under the authority of the hostile army. The occupation
extends only to the territory where such authority has been established and
can be exercised” [see: Occupation].
Military occupation occurs where the armed forces of a foreign State exer-
cise authority and control over part or all of the physical territory of another
State without that territorial State’s consent. Whether the occupation meets
with armed resistance or not, the relevant legal framework is that applicable
to international armed conflicts. Usually the exercise of authority and control
manifests in the presence of foreign armed forces who have displaced the local
authorities in their administration of law and order. However, it is also argu-
able that an occupation exists over territory which the foreign armed forces
could exercise effective authority and control whenever they chose to do so
[2016 icrc Commentary gci, paras. 301–304].
5. Wars of National Liberation

Article 1(4) api extends international armed conflicts to include “armed conflicts
in which peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination,
as enshrined in the Charter of the United Nations and the Declaration on Prin-
ciples of International Law Concerning Friendly Relations and Co-operation
Among States in accordance with the Charter of the United Nations”.
International Committee of the Red Cross 423
This particular provision is amongst the most controversial in the entire

Protocol and has precluded some States from ratification and/or accession.
The most common objection is that the provision elevates the legal status of
some armed groups by identifying them as parties to an international armed
conflict. Such a result, according to some States, is tantamount to “legitimisa-
tion” of “terrorist” organisations. Widespread objections to the provision have
ensured that Article 1(4) api does not reflect customary international law and
only applies as a matter of treaty law to those States parties to api.
Tim McCormack – the views expressed are those of the author alone and do
not necessarily reflect the views of the International Criminal Court or any other
Bibliography
C. Dwyer, T. McCormack, ‘Conflict Characterisation’, in R. Liivoja, T. McCormack (eds.),
Handbook on the Law of Armed Conflict (2016).
J.K. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck
(ed.), The Handbook of International Humanitarian Law (2013).
International Committee of the Red Cross. Originally founded as the Interna-

tional Committee for Relief to the Wounded by a group of Swiss nationals led
by Henry Dunant [see: Dunant, Henry] in 1863, the icrc is a humanitarian or-
ganization with the specific mandate to protect and assist the victims of armed
conflict and other situations of violence.
The icrc is the only humanitarian organization explicitly mentioned in
the GCs, with specific provisions defining its role and scope of activities. The
general role of the icrc to undertake activities for the protection and relief of
the victims of armed conflict is defined in Articles 9 gci and gciii and Article
10 gciv. In addition, specific activities, such as visiting detained persons [art.
126 gciii; art. 143 gciv; see: icrc Visit; Deprivation of Liberty; Internment;
Assigned Residence], the establishment of a tracing agency for exchange of
information regarding protected persons [art. 123 gciii; art. 140 gciv; see:
Central Tracing Agency], lending good offices in order to facilitate the institu-
tion and recognition of hospital and safety zones and localities [art. 23 gci;
art. 14 gciv; see: Hospital and Safety Zones and Localities], and the right of
the icrc to offer its services during non-international armed conflicts, which
is commonly known as the “right of initiative”, are some examples of icrc
activities foreseen by ihl.
Furthermore, the icrc is a component of the International Red Cross and
Red Crescent Movement and follows its fundamental principles, namely hu-
manity, impartiality, neutrality, independence, voluntary service, unity, and
424 International Committee of the Red Cross
universality [see: International Red Cross and Red Crescent Movement]. In

addition, the icrc is well-known for its respect of the principle of confiden-
tiality, which entails that none of its findings are shared publicly, except in
exigent circumstances. This has, naturally, generated much criticism in the
international community for not openly exposing abuses. However, the icrc
considers confidentiality essential to the execution of its mandate, as it allows
it to generate trust and communicate effectively with the persons and/or par-
ties concerned. The importance of preserving the icrc’s confidentiality has
resulted in the privilege attached to its staff not to testify before any national
or international body [see e.g. rule 73(4) icc rpe; see also: Decision on the
Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a
Witness, Simić et al., icty, Trial Chamber, paras. 34–80].
Pursuant to the first element of its mandate, the icrc seeks to protect the
lives and dignity of victims of armed conflict and other situations of violence.
This is done, for instance, by establishing a dialogue with weapon bearers, such
as members of government armed forces or armed groups with the aim “to en-
sure that […] [these] actors fulfil their obligations and uphold the rights of in-
dividuals. It also tries to prevent or put an end to actual or probable violations
of ihl or other bodies of law protecting people in these situations” [icrc, The
icrc – its Mission and Work (2009), p. 14]. In addition, by visiting places of
detention, the icrc seeks to ensure the humane treatment of detainees [see:
Inhuman Treatment; Torture]. In recent years, the icrc has developed a more
holistic approach in its detention activities, by means of which it seeks to cover
the needs of all detainees, whether detained in relation to the conflict or pur-
suant to a violation of the law. However, limits linked to the context, the type
of places to visit, and capacities remain. Through its visits, the icrc identifies
facts and conditions, which it then shares with the authorities to remind them
of their responsibilities. If necessary, the icrc can provide training and tech-
nical support on a variety of subjects (such as international standards regard-
ing water and habitat) or deliver supplies (such as food, clothes, and cleaning
kits). Finally, it is important to highlight the role of the icrc in restoring and
maintaining contact between family members and clarifying the fate of per-
sons reported missing as a consequence of armed conflict or other situations
of violence [see: Missing Persons].
The second element of the icrc’s mandate consists of assisting victims
of armed conflict and other situations of violence by addressing the essen-
tial needs of individuals and/or communities in accordance with the social
and cultural environment. These needs usually relate to issues of health,
water, sanitation, shelter, and economic security. The assistance activities of
International Committee of the Red Cross 425
the icrc are not limited to the provision of goods and services. In certain
contexts, they extend to providing support to the existing institutions and ser-
vices, training specialized staff, and persuading the authorities to assume their
responsibilities.
The icrc’s modes of action are key to a better understanding of its function-
ing. To increase awareness of responsibility and provide services or goods, the
icrc engages, as the case may be, in: (i) persuasion (e.g. direct dialogue with
armed actors or ihl training); (ii) mobilization of State agencies or third ac-
tors to fulfil a specific task (e.g. requesting an organisation to deliver food sup-
plies); (iii) denunciation as a measure of last resort (e.g. reminding Israel of its
obligation under ihl of facilitating contact between Palestinian detainees in
Israel and their families residing in the occupied territories in May 2017); (iv)
provision of support to local staff (e.g. concerning health activities and ani-
mal vaccination) or supplies (e.g. fishing kits, farming tools, and vaccination
equipment); and (v) acting as a substitute to provide the required activity itself
when there is no will or capacity to do so. The icrc does not limit itself to any
of these modes of action but may combine them.
It is, furthermore, noteworthy that the icrc acts as the guardian of ihl.
It received this role as recognition for its support in the adoption of the 1864
Geneva Convention and it was formalized in Article 5 of the Statutes of the
International Red Cross and Red Crescent Movement. Since then, the icrc
has sought to promote the adequate application of ihl and to adapt it to the
demands of current armed conflicts, especially in relation to the means and
methods of warfare. For instance, it provides authoritative interpretation
(commentaries) of the GCs and APs, has prepared an extensive study on cus-
tomary ihl [see: Customary International Humanitarian Law], and supports
efforts to introduce ihl into national legislation [see: Implementation].
Gerardo Moloeznik – the views expressed are those of the author alone
with
Bibliography
P. Boissier, History of the International Committee of the Red Cross, Volume i: From
Solferino to Tsushima (1978).
A. Durand, History of the International Committee of the Red Cross, Volume ii: From
Sarajevo to Hiroshima (1984).
icrc, The icrc. Its Mission and Work (2009).
A. Aeschlimann, ‘Protection of Detainees: icrc Action behind Bars’, 87(857) irrc
(2005).
426 International Committee of the Red Cross, Visit
International Committee of the Red Cross, Visit. Persons deprived of their

liberty in the context of either armed conflict or other situations of violence
are inherently vulnerable by virtue of the power relationship between detain-
ing authority and detainee [see: Deprivation of Liberty; Assigned Residence;
Internment]. The icrc has accordingly been mandated by the GCs and their
APs to secure humane treatment and conditions of persons detained in con-
nection with either international or non-international armed conflict [see: In-
ternational Committee of the Red Cross]. Where the humanitarian situation
demands, it may also visit persons criminally or administratively detained,
outside the context of armed conflict. Through its visits, the icrc endeavours
to: prevent torture and other forms of ill-treatment [see: Torture; Humiliating
and Degrading Treatment; Inhuman Treatment]; prevent and resolve disap-
pearances [see: Missing Persons; International Convention for the Protection
of all Persons from Enforced Disappearance (2006)]; improve conditions of
detention (e.g. regarding food, water and health services) [see: Deprivation of
Liberty, Treatment]; restore and maintain family contacts; and ensure respect
for legal safeguards.
The icrc’s visits to persons deprived of liberty date back to the 1870 Franco-
Prussian War, when its staff visited prisoners of war to distribute letters and
relief parcels from their families [see: Prisoners of War]. During World War
i, the icrc compiled reports on visits, with a view to improving the deten-
tion conditions of prisoners of war, and the individual data on those pris-
oners were centralized. The subsequent 1929 Geneva Convention explicitly
made provision for the monitoring of detention by the icrc. However, at the
time, there was no treaty or customary law entitlement for the icrc to visit
prisoners in accordance with its now standard modalities, including private
interviews.
On the basis of this experience, the organization vested itself with a stricter
methodology, which was enshrined, in 1949, in Article 126 gciii and Article
143 gciv. These visit procedures are binding on all States engaged in interna-
tional armed conflict as a matter of customary ihl [rule 124 icrc Customary
ihl Study]. Similar rules customarily apply in non-international armed con-
flict, although icrc access to prisoners is not automatic and must be negoti-
ated [common art. 3 GCs; art. 18(1) apii; rule 124 icrc Customary ihl Study].
In the decades following World War ii, the icrc developed its activities in
aid of persons deprived of their liberty. In all armed conflicts, the organiza-
tion has invoked ihl (normally through a formal rappel du droit diplomatic
cable) and called on the parties to honour their international commitments,
in particular by granting the icrc access to all persons captured in the course
of military operations. In situations of violence falling short of armed conflict,
International Committee of the Red Cross, Visit 427
the icrc has taken the initiative of offering its services to the authorities con-
cerned [art. 5(2)(d) Statutes of the International Red Cross and Red Crescent
Movement].
The icrc’s detention-related work is based upon a comprehensive assess-
ment of the situation both inside and outside places of detention. This is fa-
cilitated by confidential, bilateral dialogue with the detaining authorities. Its
established visit methodology includes: access to all detainees within its legal
remit; access to all premises and facilities used by and for the detainees; autho-
rization to repeat its visits; the possibility to speak freely and in private with
the detainees of its choice; and the assurance that the authorities will provide
the icrc with a list of all detainees within its field of interest or authorize
it to compile such a list. A subsequent analysis of the information gathered
enables the icrc to identify the main risks faced by the detainees and oth-
er factors influencing their situation, including the challenges that confront
the detaining authorities in attempting to address humanitarian concerns.
The icrc works with the detaining authorities and expects them to take the
necessary steps to ensure humane treatment and conditions of detention. It
therefore maintains a confidential dialogue with them concerning its findings,
relevant national and international standards, and the action and resources
required to improve the situation of detainees. On the basis of its assessment
and analysis of each situation, the icrc develops a specific strategy to meet
the needs of the detainees most effectively. The strategy may include icrc ac-
tion in relation to individual detainees, facilities, organizations and regulatory
frameworks, plus material or technical activities aimed at meeting humanitar-
ian needs.
The effectiveness of the icrc’s detention visits is closely connected to the
detaining authorities’ respect for its consistent and rigorous working methods,
including the conditions and procedures for visits and the confidentiality of
its work. In the absence of an agreement to respect its visit modalities, which
remain the same worldwide, the icrc cannot effectively protect the rights of
detainees under international law. In 2016, close to one million persons de-
prived of liberty benefited from icrc involvement and activities in 1650 places
of detention in 98 countries. Nevertheless, in a minority of cases, there remain
practical challenges to visits, including the denial of access by sovereign States
in non-international armed conflict and other situations of violence, the refus-
al to accept the icrc’s mandatory working modalities, or the impossibility of
gaining access to certain facilities on the territory of non-State armed groups.
Any of these challenges may be overcome through arguments appealing to the
authorities’ understanding of the icrc’s neutral, impartial, and independent
mandate based in ihl.
428 International Convention for the Protection of All Persons
not necessarily reflect those of the icrc
Bibliography
A. Aeschlimann, ‘Protection of Detainees: icrc Action behind Bars’, 87(857) irrc
(2005).
D. Tuck, ‘Detention by Armed Groups: Overcoming Challenges to Humanitarian
Action’, 93(883) irrc (2011).
International Committee for Relief to the Wounded; see: Dunant, Henry;

International Committee of the Red Cross
International Convention for the Protection of All Persons from Enforced

Disappearance (2006). Under ihl, the term “enforced disappearance” as such
is not used. Instead, reference is made to “missing persons” [see: Missing Per-
sons]. Pursuant to ihl, missing persons are those “whose families are without
news of them or who are reported missing, on the basis of reliable informa-
tion, owing to an international or non-international armed conflict, a situa-
tion of internal violence or disturbances” [icrc, Guiding Principles – Model
Law on the Missing (2009)]. While enforced disappearance is always a crime,
persons can be reported missing as a consequence of natural catastrophes or
calamities.
Customary ihl prohibits enforced disappearance in both international and
non-international armed conflicts [rules 98, 117 icrc Customary ihl Study].
Parties to hostilities must take all feasible measures to account for persons re-
ported missing as a result of the conflict and must provide their families with
any information on their fate and whereabouts.
Enforced disappearance is a crime under international law and a serious vio-
lation of multiple human rights. As to the former, when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack, enforced disappearance amounts to a crime against
humanity [art. 7(1)(i) icc Statute]. International criminal tribunals have pro-
nounced themselves on cases of enforced disappearance [see e.g. Judgment,
Kupreškić et al., icty, Trial Chamber, para. 566]. As to the latter, enforced
disappearance is currently defined in three instruments of ihrl [Preamble
of the United Nations Declaration on the Protection of All Persons from En-
forced Disappearance; art. ii of the Inter-American Convention on Forced Dis-
appearance; art. 2 of the International Convention for the Protection of All
International Convention for the Protection of All Persons 429
Persons from Enforced Disappearance (icpaped)]. Moreover, the prohibition

of enforced disappearance and the corresponding obligation to investigate
and punish those responsible has attained the status of ius cogens [Judgment,
Goiburú and Others v. Paraguay, IACtHR, para. 84].
The existing definitions establish three constitutive elements of the crime:
(i) deprivation of liberty against the will of the person concerned; (ii) involve-
ment of governmental officials, at least indirectly by tolerance, support, or ac-
quiescence; and (iii) refusal to disclose the fate and whereabouts of the person
concerned. The definition provided under the icc Statute differs from the oth-
ers in two aspects. First, it includes among the possible perpetrators of the
offence political organisations or persons or groups of persons acting with the
authorisation, support, or acquiescence of such political organisations. Sec-
ond, it adds an element of dolus specialis, requiring that the perpetrator acts
with the intention of removing the victim from the protection of the law for
a prolonged period of time. Pursuant to ihrl, the placement of the person
outside the protection of the law is an inherent consequence of the crime and
not a constitutive element.
The icpaped was adopted on 20 December 2006 and entered into force on
23 December 2010. The adoption of this treaty is the outcome of more than 30
years of struggle of relatives of disappeared persons across the world. It fills a
gap in international law, being the first legally binding universal ihrl instru-
ment dealing with this phenomenon and spelling out in detail States’ obliga-
tions, not only with regard to criminalisation, investigation, and eradication of
the practice, but also in terms of prevention and victims’ rights.
Article 1 icpaped establishes the non-derogable right of every person not to
be subjected to enforced disappearance. Article 3 icpaped requires States par-
ties to take appropriate measures to investigate disappearances committed by
non-State actors and to bring those responsible to justice. States parties must
codify enforced disappearance as an autonomous offence under domestic
criminal legislation [arts. 4–7 icpaped] and recognise its continuous nature,
in particular with regard to the applicability of statutes of limitation for crimi-
nal proceedings [art. 8 icpaped]. States parties must further adopt adequate
measures to exercise jurisdiction, including universal jurisdiction, over the of-
fence of enforced disappearance [arts. 9–11 icpaped], and to conduct effec-
tive, thorough, and impartial investigations [art. 12 icpaped].
For the purposes of extradition, enforced disappearance cannot be regarded
as a political offence [art. 13 icpaped] and the principle of non-refoulement
must be applied where there are substantial grounds to believe that a person
would be in danger of being subjected to enforced disappearance if extradited,
430 International Convention for the Protection of All Persons
surrendered, expelled, or returned [art. 16 icpaped; see: Non-Refoulement].

States parties must afford one another mutual legal assistance and humanitarian
cooperation [arts. 14–15 icpaped]. Article 17 icpaped prohibits secret deten-
tion. Access to information on persons deprived of their liberty must be en-
sured to certain persons having a legitimate interest, including relatives and
their legal representatives, while conducts aiming at obstructing or unduly
restricting such access must be sanctioned [arts. 18–22 icpaped]. States par-
ties must ensure that law enforcement personnel are trained on the contents
of the treaty [art. 23 icpaped]. Article 24 icpaped recognises as victim of
enforced disappearance not only the disappeared person, but also any indi-
vidual who has suffered harm as the direct result of an enforced disappear-
ance, such as relatives of the disappeared. This provision spells out in detail
the rights of victims of enforced disappearance, including the right to know
the truth and to obtain compensation and reparations. Article 25 icpaped
sets forth obligations in cases concerning the enforced disappearance of chil-
dren, including where the latter are wrongfully removed and the documents
attesting to their true identity are falsified, concealed, or destroyed. The im-
plementation of the icpaped is monitored by the Committee on Enforced
Disappearances (ced).
The icpaped requires States parties to adopt several amendments in their
domestic legislation. To date, compliance has not been particularly high. Very
few States codify enforced disappearance as a separate crime under their
domestic legislation or have adapted their legislation to issue “certificates of
absence due to enforced disappearance”. The ced plays thus a crucial role in
enhancing the level of enforcement of the icpaped.
There is a rich – although not always homogeneous – jurisprudence on
enforced disappearance, mostly developed by domestic tribunals and inter-
national human rights mechanisms. While the latter coincide in considering
that this practice entails a violation of the right to personal liberty and secu-
rity and amounts to a form of inhuman treatment against the relatives of the
disappeared person, their case law differs as regards the other fundamental
rights impaired, including the right to life, the right to recognition as a person
before the law, the right to an effective remedy and the right to fair trial. The
main discrepancy however concerns the violation of the prohibition of torture
with regard to the disappeared person. The hrc and the IACtHR apply a pre-
sumption and reverse the burden of proof, considering that the deep feelings
of fear and defencelessness experienced by the disappeared person amount,
at a minimum, to inhuman and degrading treatment. The ECtHR has never
reached this conclusion, rather requesting applicants to prove beyond reason-
able doubt that their relative has in fact been tortured.
International Criminal Law 431
Gabriella Citroni – the views expressed are those of the author alone and do
not necessarily reflect the views of TRIAL International or any other institution
the author is affiliated with
Bibliography
L. Ott, Enforced Disappearance in International Law (2011).
T. Scovazzi, G. Citroni, The Struggle against Enforced Disappearance and the 2006
United Nations Convention (2007).
M.L. Vermeulen, Enforced Disappearance: Determining State Responsibility under the
International Convention for the Protection of All Persons from Enforced Disap-
pearance (2012).
International Criminal Law. International Criminal Law is commonly defined

as a body of international rules and norms designed both to prescribe certain
categories of conduct (mainly war crimes, crimes against humanity, genocide,
and aggression), and to make those persons who engage in such conduct crimi-
nally liable [see: Individual Criminal Responsibility]. These rules and norms
consequently either authorise States, or impose upon them the obligation, to
prosecute and punish such criminal conduct. This could be done either direct-
ly at the domestic level, or through international criminal mechanisms [see:
Penal System]. However, opinions diverge on this definition and more exten-
sive and narrower variations exist as well.
It is worth noting that the idea of universal criminal justice finds its roots far
back in human history. However, only in the twentieth century did such ideas
begin to be conceptualized as legal issues. The establishment of criminal norms
in international law first required the recognition of the individual as a subject
of international law, considering that international law was traditionally con-
cerned with the rights and obligations of States [see: State Responsibility].
Secondly, it was necessary to overcome States’ defensive attitude towards
outside interference, which was rooted in the concept of sovereignty. Mod-
ern international criminal law can be traced back to the Nuremberg trials in
the aftermath of World War ii. International criminal law has since then made
huge strides with the establishment of several international criminal tribunals,
with a limited jurisdiction ratione materiae and ratione temporis, as well as the
so-called mixed or hybrid tribunals [see: International Criminal Tribunals;
Hybrid or Internationalised Tribunals].
International criminal law draws, in part, on ihl, which criminalises con-
duct amounting to war crimes [see: War Crimes; Serious Violations of the
Laws and Customs of War; Grave Breaches]. Such crimes must, in principle,
432 International Criminal Tribunals
be repressed by States, but the failure of many States to do so contributed to

the establishment of international courts and tribunals with corresponding
jurisdiction. International criminal law has, therefore, strengthened the imple-
mentation of ihl to a certain extent. However, the two branches of law must
not be equated to each other. The main differences are the following: ihl is
primarily concerned with State responsibility and is primarily applied during
armed conflict in order to prevent violations as far as possible [see: Interna-
tional Humanitarian Law]. To the contrary, international criminal law focuses
on individual criminal responsibility and is mainly applied after a violation has
occurred.
The main aims of international criminal law are retribution (the expression
of society’s condemnation by punishing the perpetrator for his or her conduct)
and deterrence (preventing the perpetrator and others from engaging in sim-
ilar conduct in the future). Wider aims have been ascribed to international
criminal law as well, including rehabilitation of the offender, documenting his-
torical events, and contributing to reconciliation. However, doubts have been
expressed as to the possibility of achieving such aims through international
criminal law, which remains essentially a tool for determining the guilt or in-
nocence of an individual.
The rise of international criminal law has, inter alia, been hailed for prevent-
ing the collective condemnation of a State or a group, and for enabling the
prosecution of those accused of horrendous crimes in circumstances in which
States have not been willing or able to do so. However, this body of law has not
been free from criticism. In this regard, the high costs of international criminal
tribunals, the limited enforcement powers of these institutions, and the se-
lectivity of international criminal justice have, for example, been highlighted.
Camilla van der Walt, Ousman Njikam – the views expressed are those of the
authors alone and do not necessarily reflect the views of the United Nations Mis-
sion in South Sudan, the United Nations International Residual Mechanism for
Criminal Tribunals, or the United Nations in general
Bibliography
R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International
Criminal Law and Procedure (2010), pp. 3–40.
D. Shaw, International Law (2008), pp. 397–443.
International Criminal Tribunals. Following World War ii, and particu-

larly from the early 1990s, international criminal tribunals (icts) became
increasingly important fora in the prosecution of serious violations of ihl, in
International Criminal Tribunals 433
addition to addressing genocide and crimes against humanity. The icts have
included the imt, imtfe, icty, ictr, mict and now the permanent icc.
Whether an ict is described as a tribunal or a court holds no significance for
international law.
icts are often defined as a categorically unique species of court. This view
was justified in a past where icts were the only fora to hold individuals crimi-
nally responsible under international law for international crimes [W. Schabas,
The UN international criminal tribunals: the former Yugoslavia, Rwanda and
Sierra Leone (2006), pp. 3 et seq]. Today, the rise of prosecutions of internation-
al crimes before national courts, including on the basis of universal jurisdic-
tion, means that icts do not have exclusive domain over international crimes.
The fact that icts prosecute international crimes is therefore of little value,
eo ipso, in defining icts. Instead, icts are distinctive from domestic criminal
courts due to their legal basis, together with various aspects of their operation.
The legal basis of the imt was a multilateral treaty between States, namely
The Charter of The International Military Tribunal at Nuremberg, agreed be-
tween the UK, the usa, France, and the ussr. In contrast, the legal basis of the
imtfe is unique amongst all icts, established by way of a proclamation issued
by a joint organ of several States, with General Douglas MacArthur acting “as
the agent of the Allied Powers” [Judgment, Hirota v MacArthur, US Supreme
Court, p. 198].
icts have also been established by way of the unsc’s powers under Chapter
vii of the UN Charter. The icty was “the first truly international criminal tri-
bunal for the prosecution of persons responsible for serious violations of ihl”
[T. Meron, ‘War Crimes in Yugoslavia and the Development of International
Law’, 88(1) ajil (1994), p. 78]. Although the icty and ictr are often described
as ad hoc, in reality, all icts except the permanent icc have been set up on an
ad hoc basis, including the temporary mict established by the unsc.
The icc was constituted by the Rome Statute, a multilateral treaty between
States. It is the first permanent ict. Although the Rome Statute allows for the
seat of the Court to be relocated, the icc has constructed permanent premises
in The Hague.
In addition to their legal basis, icts are uniquely defined by various as-
pects of their operation. icts often have unique material jurisdiction (ex-
tending to extremely serious offences, including various grave breaches of
the 1949 GCs, their 1977 APs and various types of war crimes in international
and non-international armed conflicts), applicable law (whether treaty-based
institutions, like the icc, or being more reliant on customary international
law like the icty and ictr), a distinctive system of procedural and eviden-
tiary rules (drawing on rules from both the common-law and civil-law worlds),
434 International Criminal Tribunals
appointment and composition of judicial benches (having a great diversity

of professional backgrounds, often with limited prior legal or judicial experi-
ence), and staffing and funding arrangements (again, legal staff bring a diverse
range of skills and experience to the icts).
A central question for the future of icts is the interplay between the role of
the icc as a permanent institution and the possibility of further ad hoc icts,
which may offer the international community greater flexibility in reaching
political agreements on how to provide accountability. The icts have contin-
ued to contribute to significant developments in ihl (for instance, the effect of
the icty’s Tadić Appeals Chamber jurisprudence on non-international armed
conflicts, or the impact of the icc’s Bemba trial judgment on sexual and gender-
based violence in armed conflict) and have brought about steps towards great-
er accountability following many of the armed conflicts of recent years. Yet,
both the ad hoc tribunals and the icc have continued to face criticism based
principally on the length of proceedings and on accusations that prosecutions
are brought selectively.
While the icc is undoubtedly the premier forum for prosecuting interna-
tional crimes for the foreseeable future, this does not prevent the existence
of a range of different icts with prescriptive jurisdiction that overlaps with
the icc’s. Therefore, the potential for future icts remains rich and fertile [see:
Hybrid or Internationalised Tribunals]. The future of icts is unlikely to be
monolithic or limited to the icc; it is more likely to be diverse and comprised
of a community of icts [W. Burke-White, ‘Community of Courts: Toward a Sys-
tem of International Criminal Law Enforcement’, 24 mjil (2002), p. 1], which
in turn, goes hand-in-hand with a pluralistic approach to the development of
international criminal law [P. Webb, International Judicial Integration and
Fragmentation (2013)].
Cambodia
Bibliography
L. Bådagård, M. Klamberg, The Gatekeeper of the ICC-Prosecutorial Strategies for
Selecting Situations and Cases at the International Criminal Court (2016).
S. Brammertz, The Legacy of the icty: Fair Trials and Cooperation with Local Courts.
Assessing the Legacy of the icty (2011), pp. 27–34.
R. O’Keefe, International Criminal Law (2015), pp. 85 et seq.
C. Stahn, The Law and Practice of the International Criminal Court, Part 1: Context,
Challenges, and Constraints (2014).
International Human Rights Law 435
P. Webb, International Judicial Integration and Fragmentation (2013).

R. Zacklin, The Failings of Ad Hoc International Tribunals (2004).
International Human Rights Law. ihrl is the body of international law com-
prising a set of rules, established either by treaties between States or by cus-
tom, aimed at regulating the relationship between States and individuals, with
regard to the latter’s fundamental rights and freedoms. ihrl lays down obli-
gations which States are bound to respect, protect, and fulfil. This means that
States must refrain from interfering with or curtailing the enjoyment of human
rights (obligation to respect). They must further protect individuals and groups
against human rights abuses (obligation to protect). Finally, they must take posi-
tive action to facilitate the enjoyment of basic human rights (obligation to fulfil).
Human rights are inherent entitlements that belong to every person as a
consequence of being human, regardless of the nationality, place of residence,
sex, national or ethnic origin, colour, religion, language, or any other status.
They are interrelated, interdependent, and indivisible.
Human rights are also inalienable. That means that they should not be taken
away, except in specific situations and according to due process (for example,
the right to liberty may be restricted if a person is found guilty of a crime by a
court of law).
The origins of ihrl go back to the Magna Charta of 1215. However, it is only
with the adoption, by the unga on 10 December 1948, of the udhr, that these
rights have been recognised under international law. The latter spelled out for
the first time basic civil, political, economic, social, and cultural rights that all
human beings should enjoy.
The udhr, together with the 1966 iccpr (which provides e.g. for the right to
life, the right to equality before the law and freedom of expression) and its two
Optional Protocols, and the 1966 icescr (which provides e.g. for the right to
work, to social security and education, or collective rights, such as the rights to
development and self-determination) form the so-called International Bill of
Human Rights. Equally important are the Conventions on Genocide (1948), the
Convention on the Elimination of All Forms of Racial Discrimination (1965),
the Convention on the Elimination of All Forms of Discrimination against
Women (1979), the UN Convention Against Torture (1984) and the Convention
on the Rights of the Child (1989) [see: Non-Discrimination; Torture; Conven-
tion on the Rights of the Child (1989) and its Protocols].
States have adopted further human rights instruments at the regional level,
such as the echr (1950), the American Declaration of the Rights and Duties of
436 International Human Rights Law
Man (1948), the achr (1969) and the achpr (1981), which address particular
human rights concerns in a specific region. Through their ratification, States
undertake to adopt implementing measures at domestic level.
Since 1948, the unga has adopted some eighty (80) human rights conven-
tions and declarations, whereas the ohchr has lead responsibility for their
promotion and protection. The UN has further established mechanisms, such
as the hrc and numerous so-called treaty-bodies to monitor their implemen-
tation. In addition, there are numerous non-treaty based principles and guide-
lines (soft law) that also belong to the body of ihrl.
The cornerstone principle of ihrl is universality: after its first emphasis in
the udhr in 1948, it has been reiterated in various conventions, declarations,
and resolutions. All States have ratified at least one and 80% of States have rati-
fied four or more of the core human rights treaties, reflecting consent among
States in creating legal obligations binding upon them, and giving concrete ex-
pression to universality. Furthermore, some fundamental human rights norms
enjoy universal protection by customary international law across all boundar-
ies and civilizations.
While ihrl was originally designed to apply in times of peace, its core pro-
visions, which have ius cogens status and can never be restricted, have found
their way into the special provisions of ihl. In this regard, the icj confirmed
the convergence and complementarity of ihrl and ihl and recognized the
continuing applicability of ihrl also in time of armed conflict [Advisory
Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, p. 240, para. 2;
see also: V. Chetail, ‘The Contribution of the International Court of Justice to
International Humanitarian Law’, 85(850) irrc (2003), p. 240].
Nevertheless, some ihrl treaties allow for derogations in situations of
public emergency. These, however, must have a legal basis, be proportional
to the crisis at hand and be compatible with other rules of international law,
including ihl. Among the non-derogable human rights are the right to life,
the prohibition of torture or cruel, inhuman or degrading treatment or pun-
ishment, prohibition of slavery and servitude, and the prohibition of retroac-
tive criminal laws [J.-M. Henckaerts, ‘Concurrent Application of International
Humanitarian Law and Human Rights Law: a Victim Perspective’, in R. Arnold,
N. Quénivet (eds.), International Humanitarian Law and Human Rights Law:
Towards a New Merger in International Law (2008), pp. 237–268; C. Droege,
‘The Interplay between International Humanitarian Law and International
Human Rights Law in Situations of Armed Conflict’, 40(2) Israel Law Review
(2007), pp. 310–355].
ihlr violations, for instance, have been condemned in the context of
armed conflicts or military occupation in Afghanistan, Iraq, Sudan, Russia, the
International Human Rights Law 437
former Yugoslavia, and Uganda [Henckaerts, p. 250]. In particular, the interplay

between these two branches in the context of armed conflict has been exam-
ined by the ECtHR in the following three cases stemming from the involve-
ment of UK troops in Iraq: Al-Skeini v. United Kingdom (2011), Al-Jedda v. United
Kingdom (2011), and Hassan v. United Kingdom (2014). The British case of Ser-
dar Mohammed v. Ministry of Defence deals with similar issues in the Afghan
context, while the IACmHR and the IACtHR have addressed this aspect in
Coard v. United States and Bámaca-Velasquez v. Guatemala, respectively. In the
Al Jedda case, for instance, the ECtHR examined the lawfulness of UK deten-
tion practice in Iraq under the echr [J. Pejić, ‘The European Court of Human
Rights’ Al-Jedda Judgment: the Oversight of International Humanitarian Law’,
93(883) irrc (2011), p. 837].
With regard to the derogation of human rights, a controversial issue is
whether States can derogate from human rights treaties for situations that take
place outside their territories, especially in times of armed conflict. Authors
like Milanović, for instance, argue that, contrary to the dicta in some of the
decisions of the House of Lords and the UK Supreme Court, extraterritorial
derogations are not only permissible, but may even be necessary and desirable,
“as part of the price worth paying for the treaties’ extensive and effective ap-
plication outside states’ boundaries” [see M. Milanović, ‘Extraterritorial Dero-
gations from Human Rights Treaties in Armed Conflict’, in N. Bhuta (ed.), The
Frontiers of Human Rights: Extraterritoriality and Its Challenges (2016), pp. 55
et seq]. Another matter of debate concerns the application of ihl and ihrl to
peacekeeping activities and the interplay between these two bodies of law in
the latter scenarios. The issue is particularly relevant with reference to the use
of active, offensive force deployed by peacekeepers under the unsc mandates
in Africa, and involves some critical considerations about the current interpre-
tation of the dual applicability principle and the narrowed legal implications
resulting from the application of the lex specialis logic to peacekeeping mis-
sions [J. Fowkes, ‘The Relationship between ihl and ihrl in Peacekeeping
Operations: Articulating the Emerging AU Position’, 61(1) Journal of African
Law (2017), pp. 1–22].
Bibliography
V. Chetail, ‘The Contribution of the International Court of Justice to International
Humanitarian Law’, 85(850) irrc (2003).
C. Droege, ‘The Interplay between International Humanitarian Law and International
Human Rights Law in Situations of Armed Conflict’, 40(2) Israel Law Review (2007).
438 International Humanitarian Law
J.-M. Henckaerts, ‘Concurrent Application of International Humanitarian Law and

Human Rights Law: a Victim Perspective’, in R. Arnold, N. Quénivet (eds.), Interna-
tional Humanitarian Law and Human Rights Law: Towards a New Merger in Inter-
national Law (2008).
M. Milanović, ‘The Lost Origins of Lex Specialis: Rethinking the Relationship between
Human Rights and International Humanitarian Law’, in J. Ohlin (ed.), ‘Theoretical
Boundaries of Armed Conflict and Human Rights’ (2016).
J. Pejić, ‘The European Court of Human Rights’ Al-Jedda Judgment: the Oversight of
International Humanitarian Law’, 93(883) irrc (2011).
International Humanitarian Fact-Finding Commission; see: Commissions of

Inquiry and Fact-Finding Missions
International Humanitarian Law. ihl, also referred to as the laws of

war, is a set of rules designed to protect persons who are not, or no longer,
participating in hostilities, as well as to safeguard other categories of per-
sons and objects by imposing limits on the means and methods of warfare.
ihl is based on several core principles, such as distinction, proportional-
ity, and precaution [see: International Humanitarian Law, General Prin-
ciples of]. As such, ihl is part of public international law and regulates the
conduct of parties engaged in an armed conflict (ius in bello) [see: Public
International Law]. It differs from ius ad bellum, another part of public in-
ternational law, which regulates whether a State may lawfully resort to armed
force against another State [see: Ius ad Bellum]. ihl only applies to situations
of armed conflict, whether international or non-international [see: Interna-
tional Armed Conflict; Non-International Armed Conflict; Transnational
Armed Conflict]. It is also distinct from ihrl, which, in general, confers in-
herent entitlements onto every human being, applies during peacetime and
armed conflicts alike, and primarily regulates the relationship between States
and persons within States’ jurisdiction [see: International Human Rights
Law].
The 1863 Lieber Code and the 1864 Geneva Convention for the Ameliora-
tion of the Condition of the Wounded in Armies in the Field are the first ex-
amples of codification of the laws of war. Modern ihl subsequently developed
through two main streams: first the 1907 Hague Conventions, which aimed at
regulating the conduct of warfare [see: Hague Law] and then the four GCs of
1949 which aimed at providing protection to people not taking part in hos-
tilities [see: Geneva Conventions]. The GCs have been supplemented by the
International Humanitarian Law 439
1977 api and apii on the protection of victims of international and non-in-
ternational armed conflict respectively, and by the 2005 apiii related to the
red crescent as an additional distinctive emblem. The GCs specifically address
the protection of certain groups during international armed conflicts, notably
wounded, sick, and/or shipwrecked members of armed forces in the field and/
or at sea, prisoners of war, and civilians [see: Protected Persons]. In non-inter-
national armed conflicts, persons who are not, or are no longer, taking part in
hostilities are protected, mainly through Common Article 3 GCs and apii [see:
Common Article 3; Additional Protocol ii]. The GCs have been universally
ratified, whereas the rate of ratification of the 1977 APs is more limited [see:
Additional Protocol i; Additional Protocol ii].
The GCs and APs represent the core of ihl, alongside customary ihl [see:
Customary International Humanitarian Law]. Customary ihl is now consid-
ered to be essential because it fills gaps left by treaty law and is applicable to
States that have not ratified ihl treaty law. For instance, the icrc Custom-
ary ihl Study concluded that at least 136 of 161 Rules of customary ihl apply
equally to international and non-international armed conflicts. However,
certain States continue to oppose the international customary law status of
certain rules of ihl.
ihl is at the core of substantive international criminal law, which pre-
scribes international crimes – primarily war crimes, crimes against humanity,
and genocide – and is concerned with the individual criminal responsibility of
perpetrators for such crimes [see: International Criminal Law]. International
criminal law contributes, to some extent, to the enforcement of ihl by prose-
cuting individuals for the most serious breaches of ihl. The icty and ictr, in
particular, contributed to the clarification of ihl notions, thus enhancing the
continuity between ihl and international criminal law. For instance, the icty
held that the Tribunal’s work and jurisprudence would be grounded in ihl
and confirmed that customary law and Hague law apply to non-international
armed conflicts [Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, Tadić, icty, Appeals Chamber].
Bibliography
N. Melzer, International Humanitarian Law – A Comprehensive Introduction (2016),
pp. 17–20.
M. Shaw, International Law (2008), pp. 1167–1203.
440 International Humanitarian Law, General Principles of
International Humanitarian Law, General Principles of. Modern ihl is es-

sentially a rule-based system – in other words, a system based on specific pre-
scriptions or proscriptions which, if breached, result in State and/or individual
responsibility [see: State Responsibility; Individual Criminal Responsibility].
Most of these rules originated in multilateral treaties and have progressively
become part of customary international law as well [see: Customary Interna-
tional Law]. A positivist, rule-based approach is useful because it promotes
legal clarity and certainty, and helps actors to ensure that their conduct com-
ports with the law. It contains the potential for more effective enforcement,
in suitable circumstances. However, equally, such an approach also creates
greater scope for debate, controversy, and criticism. Some might see the law
as overly technical in its distinctions or beset by apparent “loopholes”; others
might see it as overly intrusive or binding the hands of “our boys”. Law might
even be said to beget “lawfare” [O.F. Kittrie, Lawfare (2016), pp. 1–8, 40–49].
In this context, the general principles of ihl – which should not be con-
fused with similarly-named sources of (rules of) public international law, such
as principles of [customary] international law or general principles of law [see
e.g. art. 38 icj Statute; art. 21 icc Statute] – can be usefully distinguished from
the rules. They provide much of the language and conceptual framework by
and through which the positive rules are developed and interpreted. They
might be considered the soul of the law. The general principles of ihl are
not legally enforceable in and of themselves, in the sense that one principle
may not be applied in isolation to determine the legality of certain conduct.
Indeed, their precise relationship with the positive rules remains a matter of
some debate and contention. Yet they serve a number of important functions.
First, they define the objectives of ihl and the different considerations which
the law attempts to accommodate. Second, they provide a frame of reference
which may assist in analysing the evolution and effectiveness of the law. Third,
they may provide a basic rule of thumb to assist the subjects of ihl – whether
combatants or civilians – in appreciating their rights and responsibilities.
The cardinal principles of ihl are the principle of military necessity and
the principle of humanity [see: Military Necessity; Humanity]. For example,
the Saint Petersburg Declaration of 1868 stated the goal for (what would be-
come) ihl as “conciliat[ing] the necessities of war with the laws of humanity”
[see: Saint Petersburg Declaration (1868)]. It is notable in this early (and non-
binding) statement that military necessity and humanity were seen as signifi-
cant, not in isolation, but for their interaction with one another. It thus cannot
be said that one is absolutely supreme over the other. Likewise, although
there is no formal hierarchy between the general principles of ihl, it seems
logical to regard military necessity and humanity as cardinal principles which
International Humanitarian Law, General Principles of 441
yield, consequently, other principles including distinction between civilians

and combatants, proportionality, and perhaps the prohibition of unnecessary
suffering [see: Distinction; Proportionality; Superfluous Injury and Unnec-
essary Suffering]. For example, making and enforcing a distinction between
civilians and combatants (further elaborated by specific rules) is the necessary
consequence of reconciling military necessity and humanity [see: Combat-
ants; Civilians].
It is possible that at least some of these general principles may come to as-
sume a fundamental or “constitutional” status in international law, as peremp-
tory or non-derogable norms or ius cogens [V. Chetail, ‘The Contribution of
the International Court of Justice to International Humanitarian Law’, 85(850)
irrc (2003), pp. 247–252]. In other words, this would mean that States are not
free to depart from such norms in their treaty-making [see e.g. arts. 44(5), 53
vclt]. To date, although the icj has not expressly made such a conclusion, it
has crept ever closer, acknowledging certain humanitarian rules or principles
to be “elementary” [Judgment, The Corfu Channel Case (United Kingdom v.
Albania), icj, p. 22], “fundamental” [Judgment, Case Concerning Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),
icj, para. 218], “universally recognized” and “intransgressible” [Advisory Opin-
ion, Legality of the Threat or Use of Nuclear Weapons, icj, paras. 79, 82], and
of an “erga omnes character” [Advisory Opinion, Legal Consequences on the
Construction of a Wall in the Occupied Palestinian Territory, icj, para. 157].
Consistent with these views, the general principles of ihl might also be said
to form much of the practical basis for the claim that ihl is “common to all hu-
man communities wherever they may be”, transcending the different schools
of thought and cultural traditions around the world [M. Sassòli, A. Bouvier,
A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), Chapter i, p. 6].
Although it is true that Western cultures influenced much of the modern codi-
fication of ihl until the 1970s, the underlying framework of interests which
the general principles accommodate are discernible much more widely. Thus,
even if some specific ihl rules might seem counter-intuitive in some cultural
contexts (for the sake of argument), the roots of those rules – in the general
principles of ihl – should be recognisable and familiar.
Nonetheless, it is for this reason, among others, that it may be important
to distinguish the general principles of ihl from other values or ideals which
might be said to make up some kind of warrior code or ethos. Such concep-
tions may well be valuable in training (and restraining) combatants – provided
they are consistent with ihl – but typically also contain subjective notions
(such as “honour”) which are not only difficult to accommodate in law but
may well be culturally relative. That said, it cannot be denied that the historical
442 International Organizations
development of ihl was deeply entwined with institutionalised forms of such

thinking, and certain contemporary rules (for example, some aspects of per-
fidy) remain hard to explain except in this context [see: Perfidy]. Perhaps for
these reasons, some States and commentators continue to dispute whether
chivalry or honour should be regarded as a principle of ihl [US Department
of Defense, Law of War Manual (2016), pp. 50, 65–69; C.J. Dunlap Jr., ‘The DoD
Law of War Manual and its Critics: Some Observations’, 92(85) International
Law Studies (2016), pp. 103–107].
Bibliography
G. Abi-Saab, ‘The “General Principles” of Humanitarian Law according to the Interna-
tional Court of Justice’, 27(259) irrc (1987).
V. Chetail, ‘The Contribution of the International Court of Justice to International
Humanitarian Law’, 85(850) irrc (2003).
C.J. Dunlap Jr. ‘The DoD Law of War Manual and its Critics: Some Observations’, 92(85)
International Law Studies (2016).
D.W. Greig, ‘The Underlying Principles of International Humanitarian Law’, 9(46)
Australian Yearbook of International Law (1980).
N. Hayashi, ‘Basic principles’, in R. Liivoja, T. McCormack (eds.), Routledge Handbook
of the Law of Armed Conflict (2016).
O.F. Kittrie, Lawfare (2016).
U.S. Department of Defense, Law of War Manual (2015, updated 2016), pp. 50–70.
International Organizations. According to the definition of the ilc, an in-

ternational organization is an “organization established by a treaty or other
instrument governed by international law and possessing its own international
legal personality. International organizations may include as members, in ad-
dition to States, other entities” [art. 2(a) ilc Draft Articles on the Responsibil-
ity of International Organizations (2001)].
Other definitions describe an international organization “as a formal,
continuous structure established by agreements between members (govern-
mental and/or non-governmental) from two or more sovereign states with
the aim of pursuing the common interest of the membership” [C. Archer,
International Organizations (2001), p. 33]. International organizations may be
governmental (igo) – also called public international organizations – or non-
governmental organizations (ngo), which are international organizations
“composed of private individuals and/or of national associations of individuals
International Organizations 443
or companies” [F. Seyersted, Common Law of International Organizations

(2008), p. 3].
The law of igos involves three different types of legal relationship and dy-
namics: (i) between the organization and its member States; (ii) between the
organization and staff or organs of the organization; and (iii) between the or-
ganization and the outside world comprising issues of treaty-making by the
organization and of accountability [J. Klabbers, An Introduction to Interna-
tional Organizations Law (2015), p. 3]. Concerning the icrc, even though it is
considered a ngo, it has been given a number of specific functions of a public
international organization by the four GCs and the three APs [Seyersted, pp. 8,
54; see: International Committee of the Red Cross].
igos used to be established by an international agreement or treaty between
States and/or others igos, are based on a document akin to chart or “constitu-
tion”, are integrated by at least one organ, and are created by international law
[C.F. Amerasinghe, Principles of the Institutional Law of International Orga-
nizations (2005), p. 10]. igos may be classified in different ways, for example
according to: (i) the size (regional, global or bilateral); (ii) the purpose (general
political, specific defensive and/or security related, or specialized technical);
(iii) the functions and powers (consultative, operational, regulatory of territory
or persons, or supranational); (iv) the duration (permanent or temporary); (v)
the intergovernmental or the supranational character of the organization; and
(vi) the type of membership (open or closed) [Seyersted, pp. 9–10; Ameras-
inghe, pp. 9–13]. Some international agreements may establish organs (such as
international tribunals or human rights bodies) to supervise or monitor States’
compliance with the provisions of a treaty, “either independently from or un-
der the auspices of an igo”, even though, various international tribunals are
igo “in their own capacity” [Seyersted, p. 13; see: International Criminal Tri-
bunals; Human Rights Courts and Bodies].
In the context of ihl, international organizations may carry out a wide
range of activities, from dissemination of ihl rules, to protection of and as-
sistance to civilians, displaced persons, and victims of hostilities, medical aid,
transitional justice and investigation into ihl violations as well as criminal
prosecution of those responsible for war crimes. Importantly, if the found-
ing instrument of an international organization allows for the deployment of
armed forces, such as in the case of the un, even if the issue remains contro-
versial, depending on the circumstances, the international organization could
be bound to respect ihl if it operates in an armed conflict context [UNSG Bul-
letin on Observance by United Nations Forces of International Humanitarian
Law (1999); M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?,
Part I, Vol. I (2011), Chapter 13, pp. 23-24].
444 International Red Cross and Red Crescent Movement
Jorge Errandonea – the views expressed are those of the author alone and do
not necessarily reflect the views of the Inter-American Court of Human Rights
Bibliography
C.F. Amerasinghe, Principles of the Institutional Law of International Organizations
(2005).
F. Seyersted, Common Law of International Organizations (2008).
International Red Cross and Red Crescent Movement. The International Red
Cross and Red Crescent Movement (“Movement”) is a worldwide humanitar-
ian network composed of three main components: the icrc [see: Interna-
tional Committee of the Red Cross], the International Federation of the Red
Cross and Red Crescent Societies (Federation), and 190 member Red Cross and
Red Crescent Societies. Its mission is to “prevent and alleviate human suffering
wherever it may be found, to protect life and health and ensure respect for the
human being, in particular in times of armed conflict and other emergencies,
to work for the prevention of disease and for the promotion of health and social
welfare, to encourage voluntary service and a constant readiness to give help
by the members of the Movement, and a universal sense of solidarity towards
all those in need of its protection and assistance” [Preamble, Statutes of the
International Red Cross and Red Crescent Movement]. This mission follows an
ethical, operational, and institutional framework based on seven fundamental
principles, namely humanity, impartiality, neutrality, independence, voluntary
service, unity, and universality.
The abovementioned components of the Movement, while maintaining
their independence and identity, cooperate with each other and, whenever
necessary, with other organizations that are active in the humanitarian field.
Such cooperation always proceeds on the basis of the fundamental prin-
ciples [arts. 1, 7 Statutes of the International Red Cross and Red Crescent
Movement].
In order to “provide more effective response to humanitarian needs using
to best effect the Movement’s many resources”, clear guidelines have been ad-
opted within the Movement “for the performance of tasks by [its] members,
using the specific areas of competence and the complementary capacities of
each to best effect” [Preamble Agreement on the Organization of the Interna-
tional Activities of the Components]. Thus, this agreement establishes, in gen-
eral terms, that the lead agency will be the icrc in situations of international
and non-international armed conflicts, internal strife, and their direct results.
The Federation will take a proactive role in cases of natural or technological di-
sasters and other emergency and disaster situations in peace time, which may
Internment 445
require resources exceeding those of the operating National Society. Lastly, a

National Society may undertake the functions of lead agency necessary for the
coordination of international relief assistance within its own territory, subject
to the concurrence of the icrc or the Federation [art. 3 Statutes of the Inter-
national Red Cross and Red Crescent Movement].
The “International Conference is the supreme deliberative body for the
Movement” and, in this context, the “representatives of the components of the
Movement […] [and] States Parties to the Geneva Conventions […] examine
and decide upon humanitarian matters of common interest and any other re-
lated matter” [art. 8 Statutes of the International Red Cross and Red Crescent
Movement]. The participation of States’ representatives undeniably adds a po-
litical component to the discussion. Regardless of the efforts of the three com-
ponents of the Movement, States’ interests and agendas are put forward and,
therefore, more powerful States may set the tone of the discussion, influence
the wording of a resolution, and possibly limit the scope of a decision. Con-
sequently, the final outcome may not be what the humanitarian community
would have expected and was aiming for.
In recent years, members of the Movement have been directly attacked on
several occasions, for instance in Libya, Yemen, Syria, and Afghanistan. This
tendency poses a serious challenge to the acceptance of and respect for hu-
manitarian actors in places affected by crisis. The Movement has responded
by raising awareness on the part of authorities, affected communities, armed
actors, and States on the importance of a safe environment for humanitarian
actors. The measures adopted in this respect range, for instance, from dissemi-
nation of information on the nature of humanitarian work to support in rela-
tion to the adoption of laws.
Gerardo Moloeznik – the views expressed are those of the author alone and
Bibliography
H. Haug, Humanity for All: the International Red Cross and Red Crescent Movement
(1993).
icrc, ifrc, Handbook of the International Red Cross and Red Crescent Movement
(2008).
Internment. Internment is a form of deprivation of liberty [see: Deprivation

of Liberty] based on security reasons and, for that reason, it is often referred
to as security or administrative detention. Internment is also independent of
any criminal procedure. Article 21 gciii, for instance, confirms that prison-
ers of war may not be prosecuted by the detaining power for having directly
446 Internment
participated in the hostilities, provided that they have respected the laws and
customs of war [see: Prisoners of War]. Their internment is only meant to
prevent their return to the battlefield and shall in no way be considered as a
punishment or sanction. Internment is one of the most extensively developed
regimes within ihl, in particular during international armed conflict, and the
rules thereof may be broadly divided into two main areas: rules regulating the
resort to internment (legal basis, grounds for deprivation of liberty, and proce-
dural guarantees), and rules regulating the treatment of internees [see: Depri-
vation of Liberty, Treatment].
During international armed conflict, ihl provides that prisoners of war
and civilian internees may be subjected to internment, and grants them a le-
gal status entailing a high degree of protection. It should be noted here that
medical personnel may also see their liberty restricted; however, such restric-
tion is referred to as retention and not internment, for it cannot be justified by
security reasons [see: Medical Personnel].
Following Article 21 gciii, “[t]he Detaining Power may subject prisoners of
war to internment”. Combatants in an international armed conflict are legally
deemed to represent a threat to the security of the enemy party to the conflict
and, hence, their internment is one of the means permitted by ihl to disable
them – i.e. prevent them from directly participating in hostilities – and, more
broadly, to weaken the military strength of the enemy. In other words, intern-
ment under gciii is based upon status. Prisoners of war may accordingly be
interned until the end of active hostilities [art. 118 gciii], without any obliga-
tion placed on the detaining power to review the continued need for their in-
ternment. No procedural guarantee is therefore provided by gciii in relation
to the legal basis for the internment, with the exception of Article 5 gciii. The
latter states that in case of doubt as to whether any persons captured while en-
gaged in a belligerent act are indeed combatants, “such persons shall enjoy the
protection of the present Convention until such time as their status has been
determined by a competent tribunal”.
In contrast to prisoners of war, internment of protected civilians should
in principle be an exceptional measure and, together with assignment to
residence [see: Assigned Residence], is the most severe measure of control
that may be taken against them [arts. 41, 78 gciv]. Internment under gciv is
therefore not status-based, but instead threat-based (e.g. nuclear scientists or
weapons experts). Once placed in internment, protected persons are granted
the status of “civilian internees”. Although gciv makes a distinction between
protected persons in the own territory of a party to the conflict and protected
persons in occupied territory, the rules regulating the resort to internment are
quite similar for both categories. First, the grounds for depriving protected
persons of their liberty are clearly spelled out. Article 42 gciv provides that
Internment 447
“[t]he internment or placing in assigned residence of protected persons may

be ordered only if the security of the Detaining Power makes it absolutely nec-
essary”, while Article 78 gciv states that protected persons in occupied terri-
tory may be subjected to assigned residence or internment “[i]f the Occupying
Power considers it necessary, for imperative security reasons”. The two differ-
ent wordings nevertheless create a similar standard, with the only difference
that internment should be even more exceptional during occupation [1958
icrc Commentary gciv, p. 367]. Second, because internment is an exception
that may only be resorted to based on specific security grounds, procedural
guarantees were introduced to ensure compliance with such grounds. Both Ar-
ticles 43 and 78 gciv require that the internment procedures include a right to
appeal the decision, as well as a regular review process: internment in the ter-
ritory of a party “shall [be] periodically [reviewed], at least twice yearly”, while
it shall be subjected to a “periodical review, if possible every six months” in
occupied territory. Both the appeal and the review process shall be dealt with
by “an appropriate court or administrative board” in the territory of a party,
and by “a competent body” in occupied territory. Here again, the difference in
wording should not be interpreted as setting two different standards; it was
only meant to take into account the reality of occupation, which precludes the
establishment of an overly elaborate procedure.
It should however be noted that both articles require the detaining power
and the occupying power to take steps to determine the bodies entitled to ex-
ercise such competence over the fate of civilian internees, before they may in-
tern any protected person. In practice, this means that while ihl grants some
flexibility to States as to the exact composition of the review entity, it makes it
clear that the decision shall be an administrative one, made not by an official
but by an administrative organ offering the necessary guarantees of indepen-
dence and impartiality [1958 icrc Commentary gciv, p. 260].
The regulation of the resort to internment, while well-developed in inter-
national armed conflict, becomes virtually non-existent when it comes to
non-international ones [see: Deprivation of Liberty]. The icrc considers that
internment is nonetheless “inherent” to non-international armed conflict, but
recognizes that Common Article 3 GCs and apii are silent on the grounds or
procedural safeguards applicable to persons interned in such situations [icrc,
Opinion Paper on Internment (2014), p. 6]. Such silence should not be inter-
preted as implying a prohibition of internment in non-international armed
conflict – for this would clearly be unrealistic, if not counter-productive and
dangerous considering that internment remains a frequent occurrence in,
or even a necessary component of, non-international armed conflict. What
it reveals is rather the extreme difficulty experienced by States in agreeing
upon wording that would regulate the grounds and procedural guarantees for
448 Italian Military Internees
internment, without simultaneously creating a legal entitlement for non-State

parties to armed conflict to themselves intern [see: Belligerents, Equality of].
As a consequence, a consensus still remains to be achieved on the resort to
internment during non-international armed conflict, whether regarding its le-
gal basis or its regulation. The absence of any explicit legal provision detailing
grounds and procedures has provoked opposing views on filling this gap, with
some arguing in favour of a membership-based approach that would resemble
the logic of gciii, and others promoting a threat-based approach more akin
to the logic of gciv. A third position suggests that, in the absence of guid-
ance from ihl, ihrl should regulate internment in non-international armed
conflict.
Bibliography
E. Debuf, Captured in War: Lawful Internment in Armed Conflict (2013).
L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016).
icrc, Internment in Armed Conflict: Basic Rules and Challenges – Opinion Paper
(2014).
Italian Military Internees. On 8 September 1943, the “axis” between Nazi Ger-
many and Fascist Italy fell apart, after the latter signed an armistice with the
Anglo-American coalition [see: Armistice]. This event triggered a rapid esca-
lation towards the final outcome of World War ii, at least on the European
frontline, but also marked an important and neglected development in ihl.
After the armistice entered into force, Adolf Hitler issued an executive decree
ordering the German army to treat all Italian soldiers, previously loyal allies in
the conflict, as military internees, unless they accepted to continue fighting
alongside the Germans. Italian soldiers who refused to do so were loaded on
trains, deported to ad hoc detention camps, and assigned to forced labour or to
work in war-sustaining factories.
The power to intern military personnel was not unknown under the law ap-
plicable at the time: Article 11 of the 1907 Hague Convention (v) provided that
a neutral power shall intern troops of a party to an armed conflict when these
troops are present on its territory [see: Internment]. However, Germany was
not a neutral power at that stage and, thus, did not have the right to intern Ital-
ian soldiers deployed on any territory.
Crucially, Germany denied Italian military internees (imis) the status of
prisoners of war, which was regulated under the 1929 Geneva Convention on
Italian Military Internees 449
Prisoners of War [see: Prisoners of War]. According to Article 1(2) of the 1929
Geneva Convention on Prisoners of War, which complemented the provisions
of the 1899 and 1907 Hague Regulations, its protection extended to “all persons
belonging to the armed forces of belligerents who are captured by the enemy
in the course of operations […]”. The Convention regulated in detail the treat-
ment of prisoners of war during captivity, including the prohibition to perform
work in “direct connection with the operations of war” [art. 32 1929 Geneva
Convention on Prisoners of War]. Both Germany and Italy were parties to this
treaty and Italian soldiers were captured on the basis that they were (sudden-
ly) considered enemies. Accordingly, Italian soldiers should have been treated
as prisoners of war [see: Deprivation of Liberty, Treatment], at least as of 13
October 1943, the date of Italy’s declaration of war to Germany.
The classification of imis had, therefore, no legal basis under ihl or any
other legislation, and left them in a legal vacuum, outside the protection of
the law [A. Pons, Autobiografia di Guerra (2005), pp. 83–84, on file with the
author]. In this regard, it is worth recalling that ihl is grounded in simple but
clear dichotomies, which constitute its strengths and limitations at the same
time. A fundamental dichotomy concerns the status of individuals involved in,
or affected by, armed conflict. An individual is either a combatant or a civilian,
in international armed conflict, and is either a civilian or a civilian taking di-
rect part in hostilities, in non-international armed conflict [see: Combatants;
Civilians; Direct Participation in Hostilities]. While these dichotomies help
classifying persons in times of armed conflict in order to determine what pro-
tection, if any, they are entitled to, they do not leave much room for intermedi-
ate options. This makes it difficult, at times, to adapt ihl to new or changing
scenarios. On the other hand, however, it is also difficult to place somebody af-
fected by armed conflict outside these categories. Every person who has fallen
into the enemy’s hands “must have some status under international law […].
There is no intermediate status; nobody in enemy hands can be outside the
law” [1958 icrc Commentary gciv, p. 51].
The situation of imis constitutes an example of denial by a State of one of
the foundational propositions of international law, namely that “no State can
set itself above a rule of international law by unilateral action” [C. Tomuschat,
Entitlement of Italian Military Internees to Benefit under the Law Creating
A Foundation “Remembrance, Responsibility and Future”? – Legal Opinion
(2001), p. 18]. Their circumstances evidence how persons involved in or other-
wise affected by war can be at the mercy of a State that chooses to elevate itself
above ihl.
450 Ius Ad Bellum
Bibliography
G. Hammermann, Gli Internati Militari Italiani in Germania. 1943–1945 (2004).
C. Tomuschat, Entitlement of Italian Military Internees to Benefit under the Law
Creating A Foundation ‘Remembrance, Responsibility and Future’? – Legal Opinion
(2001).
Ius Ad Bellum. The term ius ad bellum came to common use after World War ii,
under the law of the UN Charter. It designates the situations in which a State
(or other entity) is legally entitled under international law to use force against
another State or another entity. The concept is however spatially bound: it
covers only uses of force in “international relations”, i.e. mainly between or
among States; it does not extend to uses of force of a State on its own territory,
for example to curb an insurrection. However, in a larger sense, the concept
can be extended to such relations when they are exceptionally subjected to
international law. This is the case, for example, if a Government concludes an
agreement (e.g. a ceasefire) with a rebel group, which may even be monitored
by an international organization. A use of force could in this case be in breach
of that agreement and involve ius ad bellum issues.
1. Ius ad Bellum under Current International Law

Under current international law, there are three situations in which a subject
of international law holds a right to use force, i.e. holds an ius ad bellum. The
first situation relates to the scenario of self-defense if an armed attack occurs
[art. 51 UN Charter; Judgment, Case concerning Military and Paramilitary Ac-
tivities in and Against Nicaragua (Nicaragua v. United States), icj, paras. 193
et seq]. The second situation refers to an authorization by the unsc under
Chapter vii of the UN Charter, as this concept evolved in practice. The unga
can recommend a use of force, but the extent to which this recommendation
can create a legal title for a lawful use of force, if there is no other legal basis,
is controversial. Regional International Organizations can authorize a use of
force, but only subject to an authorization of the unsc [art. 53 UN Charter].
Third, a State can use force on the territory of another State when the recog-
nized government of the latter has given its consent, but only within the limits
of the consent given [see e.g. Judgment, Case concerning Armed Activities on
the Territory of the Congo (Democratic Republic of the Congo v. Uganda), icj,
paras. 42 et seq]. There are no other recognized international legal grounds en-
titling to the use of force. In particular, humanitarian intervention is not legally
accepted. Too many States – notably within the so-called Third World – are
Ius Ad Bellum 451
opposed to recognizing such an entitlement. In view of this resistance, a rule

of customary international law could not emerge. We may however notice that
in case of extremely limited rescue operations in order to save nationals abroad
when these are trapped in some situations of aerial hijacking or the like, the
condemnation of the acting State has usually been weak. This practice shows
some degree of understanding for the dilemma in which that State is placed.
These three entitlements to use force are rooted in general international
law (customary international law, reflected in part by the UN Charter) [see:
Customary International Law]. There is no derogatory international law on
ius ad bellum entitlements, such that it would take precedence over the gen-
eral law by virtue of the lex specialis principle. This is the reason why the rules
relating to the use of force are considered to be expressive of ius cogens. It is
therefore not surprising that when special rules of international law seem to
contravene the mentioned general rules, the effort of the legal operators is to
interpret them according to the general rules, so as to harmonize both [see e.g.
art. 4(h) Constitution of the African Union (2000), which seems to allow the
Union to take forcible action without the prior consent of the unsc; see also:
J.P. Cot, A. Pellet, M. Forteau (eds.), La Charte des Nations Unies, Vol. ii (2005),
pp. 1421–1423]. Alternatively, the special rule may be considered null [e.g. the
Treaty of Guarantee for Cyprus (1960); see N. Ronzitti, Rescuing Nationals
Abroad through Military Coercion and Intervention on Ground of Humanity
(1985), p. 120].
The discussed perspective of ius ad bellum is based on subjective entitle-
ments of States or other entities. The question is whether a State or another
entity may use force, i.e. whether it has a subjective right or at least a legally rec-
ognized faculty to use force. However, sometimes the term ius ad bellum is used
in a broader objective sense. It then designates the whole branch of interna-
tional law dealing with the use of force, or more broadly with the maintenance
of international peace. In view of the fact that under current international law
– based on the general principle of non-use of force by States [art. 2(4) UN
Charter] – there are only more or less narrow exceptions to the prohibitive
rule, this branch of the law is sometimes also qualified as ius contra bellum.
The latter term may be considered largely synonymous to ius ad bellum, but
only with regard to the objective limb of the latter. It certainly better captures
the main drive of the modern law under the UN Charter, which is based on the
conception that the maintenance of peace is the first goal to be achieved for
the benefit of all members of international society. Finally, we must notice that
ius ad bellum/ius contra bellum is part of the international law of peace.
452 Ius Ad Bellum
2. Ius Ad Bellum and Ius In Bello

From the perspective of the law of armed conflicts (ius in bello) the main point
of interest is the precise relationship it entertains with ius ad bellum. Both
branches of international law relate to the use of force: while ius ad bellum
defines which State is entitled to use force, in what situations, and under what
conditions, ius in bello specifies how the military force must be used once there
is in fact a situation of use of force or of hostilities and contains mainly restric-
tions on the lawful ways to conduct hostilities and to treat enemy personnel
and civilians [see: International Humanitarian Law]. A fundamental differ-
ence is that ius ad bellum is grounded in a general prohibitive rule (non-use
for force), from which it carves out permissive exceptions, whereas ius in bello
is based on a general permissive rule (it is lawful to harm the adverse party in
order to overpower it), from which it carves out prohibitive exceptions.
There is an ever-existing tendency of every belligerent to consider that,
when it possesses a good title for using force under ius ad bellum (e.g. because
it resists aggression, or because it fights against “barbaric terrorist move-
ments”), it should also be entitled to enjoy more liberties under ius in bello.
This argument boils down to a claim for lawful inequality in ius in bello: you
cannot treat alike the aggressor and the aggressed; you cannot treat alike the
civilized and the barbarians, etc. Under modern international law, however,
as far as ius in bello is applicable at all (e.g. it is not applicable to all context of
the fight against terrorism), the foundational principle is the equality of the
belligerents under the law of armed conflicts [see: Belligerents, Equality of].
In other words, all belligerents have to apply equally the ius in bello rules they
are bound by. This is tantamount to saying that there is a separation between
ius in bello and ius ad bellum [M. Sassòli, A. Bouvier, A. Quintin, How Does Law
Protect in War?, Part i, Vol. i (2011), pp. 114 et seq].
There are at least four fundamental reasons for the mentioned rule of sepa-
ration between ius ad bellum and ius in bello. First, a deontological reason: the
law of armed conflict provides a minimum of humanitarian protection for the
actual or potential victims of war. It is not acceptable that this minimum of
protection be discarded and that consequently the war ushers in unbounded
destructive activity to the detriment of all. After all, one can question why the
protected persons (e.g. civilians) should be less protected, just because they
happen to stand on the wrong side from the point of view of the ius ad bellum
entitlement of their Government [see: Protected Persons]. Second, a practical
reason: the law of armed conflicts contains prohibitions that must apply to all
belligerents to be workable. If one belligerent takes liberties with regard to the
rules, the other belligerent will unfailingly reciprocate. No State or actor will
accept to be bound by more restrictive rules than its adversary, all the more in
Ius Ad Bellum 453
the context of the struggle for survival. Third, a structural reason: it is by far not
always clear which State possesses a good title under ius ad bellum. Also, there
is no international organ with the power to make a binding finding on this is-
sue. Therefore, it is common practice that each State claims to be the aggressed
while none is, quite obviously, ever the aggressor. Thus, in practice, a claim to
be entitled to take liberties with regard to ius in bello would be presented by
each belligerent. Fourth, a legal reason: once the rules on the use of force (ius
ad bellum) are brought into play or have been violated, the subsidiary rules of
ius in bello are called upon to apply. They have precisely been foreseen for these
specific situations. To claim that they should now not apply in their full com-
plexion, because of the breach of ius ad bellum by some actor, is tantamount to
overlooking their true legal function and operation.
Overall, it can be said that the separation between ius ad bellum and ius in
bello is the sine qua non condition for keeping alive the practical functioning of
ius in bello. This principle of separation is now clearly expressed in paragraph 5
of the Preamble of api. It is a rule of customary international law.
3. Interaction between Ius ad Bellum and Ius in Bello

There are different types of interactions between ius ad bellum and ius in bello,
as illustrated by the following examples.
First, the separation between ius ad bellum and ius in bello leads, in some
contexts, to a two-tier legal analysis. Take the example of belligerent occupa-
tion [see: Occupation]. From the standpoint of ius ad bellum, such an occupa-
tion may be an internationally wrongful act, triggering all the consequences
of State responsibility: namely a duty of cessation, restitution, and reparation.
From the standpoint of ius in bello, the occupation is recognized as an entitle-
ment to administer the territory. There is even an obligation to do so in all the
cases where the belligerent holds effective hostile control over that territory
[arts. 42–43 1907 Hague Regulations].
The precise link between both legal analyses can be explained as follows:
(i) there is a duty of restitution and reparation under ius ad bellum, which
is unaffected by the ius in bello issue (separation of ius ad bellum and ius in
bello); (ii) acts performed under ius in bello and in conformity with this body
of law (sometimes even mandated by it) will not be considered as interna-
tionally wrongful acts and will not give rise to a duty to make reparation (this
was already established in the case law after World War ii) [see H. Meyrowitz,
L’Égalité des Belligérants devant le Droit de la Guerre (1970), pp. 261 et seq]; and
(iii) the ius in bello does not take position on the lawfulness of the occupation
itself (which it leaves to ius ad bellum), but limits itself to consider how that
territory must be administered.
454 Journalists
Thus, the overall result is that international law can at once, without contra-
diction, consider that a given occupation is unlawful and yet that it also gives
rise to rights and obligations of the occupier which, when breached, could in-
cidentally give rise to further internationally wrongful acts.
Second, there are also situations where there is a closer link between the
two legal branches. Thus, for example, in the law of self-defense, the applicable
conditions of necessity and proportionality may refer to the conformity of the
action under ius in bello, including the protection of the natural environment
and the law of neutrality [see: Environment; Neutrality]. Therefore, a use of
force that does not respect the latter rules can also be termed “unnecessary”
and possibly “disproportionate” under ius ad bellum self-defense [Advisory
Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, paras. 30, 89].
In other words, the principle of separation applies strictly in the context of the
“equality of belligerents” (equal application of the rules of ius in bello), but not
necessarily in some other legal contexts.
Robert Kolb – the views expressed are those of the author alone and do not
Bibliography
O. Corten, Le Droit Contre la Guerre (2014), pp. 932 et seq.
C. Gray, International Law and the Use of Force (2004), pp. 334 et seq.
H. Meyrowitz, L’Égalité des Belligérants devant le Droit de la Guerre (1970), pp. 418 et
seq.
K. Okimoto, The Distinction Between Jus ad Bellum and Jus in Bello (2011), pp. 389 et seq.
Ius in Bello; see: International Humanitarian Law; Ius Ad Bellum
Journalists. Journalists are civilians and they, thus, benefit from the correspond-
ing protection defined in ihl, in both international and non-international
armed conflicts [see: Civilians]. The icrc has recognized the protection of
journalists in armed conflict as a norm of customary international law [rule 34
Pursuant to Article 79 api, relative to international armed conflict, journal-
ists engaged in dangerous professional missions in areas of armed conflict,
including “war correspondents” authorized or accredited with the armed
forces, qualify as civilians within the meaning of Article 50(1) api [see: War
Correspondents]. Journalists may not be the targets of direct military attacks
or reprisals, may not be subjected to threats of violence or indiscriminate
attacks, and may not be used as shields [art. 51 api]. They also enjoy the fun-
Journalists 455
damental guarantees included in Article 75 api [see: Fundamental Guaran-

tees]. Pursuant to Article 52 api, journalist equipment, material, and facilities
are considered to be civilian objects and, therefore, are also not to be made
the object of direct attack. Serious violations of the laws of armed conflict
perpetrated against journalists, therefore, constitute grave breaches of the GCs
and api [see: Grave Breaches] as well as violations of international criminal
law [art. 8(2)(b)(i), (ii) icc Statute].
Like other civilians, journalists lose their protection if they participate di-
rectly in hostilities and for as long as they so participate [art. 79(2) api; see:
Direct Participation in Hostilities]. Importantly, the term participation in
relation to journalists does not apply to their ordinary professional activities,
such as conducting interviews, taking notes and pictures, making audio and
video recordings.
Under api, journalists are entitled to obtain an identity card, issued by the
State of nationality or residence, or the State in which the media organization
employing them is located, attesting to their status as journalists on danger-
ous professional missions [art. 79(3) api]. The card, however, does not confer
any particular status, rights, or privileges. It attests the journalists’ profession
and only serves for identification purposes, particularly in case of arrest or
capture.
Although apii, relative to non-international armed conflicts, does not con-
tain specific provisions for the protection of journalists, their protection as ci-
vilians extends also to such conflicts, particularly under Article 13 apii as well
as Common Article 3 GCs [see: Common Article 3].
The role of journalists and war correspondents has been recognized in in-
ternational criminal justice, in connection with their appearance as witnesses.
The icty Appeals Chamber held that journalists working in war zones might
be forced to testify only when the evidence sought “is of direct and important
value in determining a core issue in the case” and “cannot reasonably be ob-
tained elsewhere” [Decision on Interlocutory Appeal, Brđanin and Talić, icty,
Appeals Chamber, para. 50].
There has been a wealth of debate on whether journalists should be granted
special status under ihl, similarly to medical and religious personnel [see:
Medical Personnel; Religious Personnel]. In the view of the icrc, however,
the protection currently afforded to journalists under the GCs and APs is ad-
equate. The issue rather appears to be the awareness of the armed forces of
the protection applicable to journalists and its enforcement on the battlefield.
Cambodia
456 Judges and Public Officials
Bibliography
A. Balguy-Gallois, ‘The Protection of Journalists and News Media Personnel in Armed
Conflict’, 86(853) irrc (2004).
E. Crawford, K Davies, ‘The International Protection of Journalists in Times of Armed
Conflict: the Campaign for a Press Emblem’, 32(1) Wis. Int’l L.J. (2014), pp. 1–36.
I. Dusterhoft, ‘The Protection of Journalists in Armed Conflicts: How Can They Be Bet-
ter Safeguarded?’, 29(76) Utrecht Journal of International and European Law (2013).
F. Foster, ‘The Price of News from the Front Line: Rethinking the Protection of Media
Personnel under International Humanitarian Law’, 20(3) Journal of Conflict &
Security Law (2015).
H.P. Gasser, ‘The Protection of Journalists Engaged in Dangerous Professional Missions’,
23(232) irrc (1983).
Judges and Public Officials. Article 54 gciv prohibits the occupying power to
alter the status, apply sanctions, or take any measures of coercion or discrimi-
nation against judges and public officials in occupied territory. This prohibi-
tion is without prejudice to the prohibition to compel protected persons to
work as specified in Article 51(2) gciv and “it does not affect the right of the
occupying power to remove public officials from their posts” [art. 54(2) gciv].
As a situation of occupation is by nature temporary and should not introduce
far-reaching changes in the pre-existing order [see: Occupation], judges and
public officials should be allowed to continue enforcing the law and adminis-
tering the daily life of the population as its “natural guardians and protectors”,
because they are in the best position to do so [1958 icrc Commentary gciv,
p. 306].
Importantly, judges and public officials remain protected at all times under
gciv, regardless of their status [1958 icrc Commentary gciv, p. 304; see: Pro-
tected Persons]. Nevertheless, along the same line of the special protection
(and specific provisions) granted under ihl to particularly sensitive or vulner-
able categories of persons in armed conflicts [see e.g.: Children; Women], a
specific regulation was foreseen to protect judges and public officials, in light
of their particular functions within the State apparatus, which may raise is-
sues of conflict between their ethical duty to serve their country and the new
authority of the occupying power.
The icrc has understood the term “public officials” as referring to “people
in State or local government service, who fulfil public duties” and the term
“judges” as referring to “members of the judiciary” [1958 icrc Commentary
gciv, p. 304]. The prohibition to alter their status aims at safeguarding the
independence of judges and public officials in the exercise of their functions
Judges and Public Officials 457
[1958 icrc Commentary gciv, p. 304]. The prohibition to apply sanctions or

other coercive or discriminatory measures attempts to strike a balance be-
tween the duty to act under the authority of the occupant, to whom they owe
obedience, and the right not to swear allegiance, nor be demanded to exercise
their functions in the name of the occupying power [1958 icrc Commentary
gciv, p. 305].
However, according to Article 51 gciv, judges and public officials over eigh-
teen years of age may be compelled to do work necessary for the public util-
ity services – such as water, gas, electricity, etc. – or for the feeding, clothing,
sheltering, transportation or health of the population of the occupied territory.
The continuation of their work should, whenever possible, help the occupying
power to achieve its duty to maintain public order and life, as required by Ar-
ticle 43 of the 1907 Hague Regulations.
The last sentence of Article 54 gciv safeguards the long-standing right of
the occupying power to remove public officials from their posts, while ensur-
ing the bona fide application of Article 54 gciv as a whole [1958 icrc Com-
mentary gciv, p. 308]. This applies, however, only to public officials but not to
judges, considering that “the principle of independence of the judiciary applies
absolutely, even in the law of belligerent occupation” [H.P. Gasser, ‘Protection
of the Civilian Population’, in D. Fleck (ed.), The Handbook of Humanitarian
Law in Armed Conflicts (2013), p. 290]. Nevertheless, since the interest of the
occupied population is a priority, should the judiciary stop functioning on ac-
count of the judges’ refusal to perform their duties, the occupying power can
appoint new judges [Gasser, p. 290].
The power of altering the status of or removing judges and public officials
from duties belongs to that set of prerogatives of the occupying power that ar-
guably require effective control over the occupied territory [art. 42 1907 Hague
Regulations]. This, in turn, raises the issue as to when a territory can be de-
fined occupied, thus triggering all rights and duties of the occupant and the
occupied population [see: Occupation]. If a territory can be defined occupied
as the invasion proceeds, that is when military operations are still ongoing
(functional approach) – thus triggering all relevant provisions of gciv – judges
and public officials would benefit from the protection of Article 54 gciv at
an early stage. However, this would empower the occupant to remove those
officials who may use their authority to the detriment of the occupying pow-
er when the occupation is not yet fully established on the battlefield. On the
other hand, if occupation law becomes applicable only when the occupation
is well established, this would leave judges and public officials bereft of the
additional protection granted under Article 54 gciv, though still enjoying the
rights afforded to protected persons.
458 Land Warfare
Ania Salinas – the views expressed are those of the author alone and do not
Bibliography
H.P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck (ed.), The Handbook of
Humanitarian Law in Armed Conflicts (2013).
M. Siegrist, The Functional Beginning of Belligerent Occupation (2011).
Kriegsraison; see: Military Necessity
Land Warfare. While the means and methods of warfare have rapidly
evolved, and have posed novel challenges to the legal framework for the con-
duct of hostilities, ultimately the bulk of armed conflict is still conducted
on land. It follows that the rules and regulations pertaining to the conduct
of land warfare remain as relevant as they were in the era when these rules
developed.
Early attempts to regulate the conduct of land warfare were contained in the
Lieber Code, a series of binding instructions addressed by the U.S. President
to the Union Army during the American Civil War in 1863. The basic protec-
tions contained in the Code were developed and gave rise to international
agreements which placed certain limits on the conduct of land warfare. Sig-
nificant early international instruments included the 1864 Geneva Convention
for the Amelioration of the Condition of the Wounded in Armies in the Field
and the 1868 Additional Articles relating to the Condition of the Wounded in
War (which were both updated at an international conference in Geneva in
1906). The Hague Conventions of 1899 and 1907 contained the basic rules and
regulations pertaining to the laws and customs of war on land [see: Hague
Convention (iv) Concerning the Laws and Customs of War on Land (1907);
Hague Regulations (1907)]. These Conventions sought to revise the 1874
Brussels Declaration concerning the Laws and Customs of War, which was
never ratified after its adoption at a diplomatic conference. The Hague Law
also built on the developments made in the 1880 Oxford Manual, which was
adopted by the Institute of International Law as a form of guidance for na-
tional legislation governing the laws of war.
Article 1 of the 1907 Hague Convention obliged the contracting parties to
issue instructions to their armed forces which were to be in conformity with
the regulations annexed to the Convention (“Regulations”). In addition, the
preamble to the Hague Conventions introduced the so-called Martens Clause,
Land Warfare 459
a provision setting a minimum standard of protection applicable to any situa-

tion [see: Martens Clause].
The Regulations contained rules pertaining, inter alia, to the treatment
of prisoners of war and the conduct of hostilities. For the purposes of land
warfare, Article 22 of the Regulations specified that the right of belligerents
to adopt means of injuring the enemy was not unlimited. In this regard, Ar-
ticle 23 of the Regulations identified specific conduct which was “especially
forbidden”, including: (a) the use of poison or poisoned weapons; (b) to kill
or wound treacherously; (c) to kill or wound an enemy who had surrendered;
(d) to declare that no quarter will be given; (e) to employ arms, projectiles or
material calculated to cause unnecessary suffering; (f) to make improper use
of a flag of truce, national flag or military insignia / uniform of the enemy; (g)
to destroy or seize the enemy’s property, unless imperatively demanded by the
necessities of war; and (h) to declare abolished, suspended, or inadmissible in
a court of law the rights and actions of the nationals of a hostile party, or to
compel the national of the hostile party to take part in operations against their
own country. Article 25 included a prohibition against attack or bombardment
of towns, villages, dwellings or buildings which were undefended. These early
Regulations pertaining to land warfare were further developed in the 1949 GCs
and their 1977 APs [see: Geneva Law].
The basic principles and rules governing land warfare outline the obliga-
tions of combatants and, more generally, of all those who actively participate
in hostilities. These obligations concern behaviour towards civilians and civil-
ian property, those who are hors de combat, and towards military objectives
and enemy combatants. The core ihl principles which govern land warfare
include the principles of distinction, precaution, and proportionality [see: Dis-
tinction; Precautions, Active; Precautions, Passive; Proportionality]. In addi-
tion, there are a range of rules aimed at prohibiting: perfidy; the use of human
shields; the recruitment of child soldiers; the denial of quarter and threats to
deny quarter; collective punishment; reprisals; and forcible displacement of
the civilian population, not justified by military necessity or civilian security
[see: Perfidy; Human Shields; Child Soldiers; Quarter; Collective Punish-
ment; Reprisals against Civilians; Deportation or Transfer of Civilians].
One of the most significant underlying values of these rules is respect for
and protection of non-combatants, whether they are civilians or combatants,
who are hors de combat [see: Hors de Combat]. Those protected included
the wounded and sick, medical personnel, medical vehicles and medi-
cal units [see: Wounded and Sick; Medical Personnel; Medical Units and
Establishments].
460 Land Warfare
Some of the ihl rules governing land warfare also seek to protect combat-
ants [see: Combatants]. Most notably, these include the prohibition on the use
of means and methods of warfare which cause superfluous injury or unnec-
essary suffering [see: Superfluous Injury and Unnecessary Suffering]. Given
that certain categories of weapons by their very nature are likely to cause su-
perfluous injury or unnecessary suffering, they have been subject to prohibi-
tions or strict rules governing their use during hostilities.
The difficulty with the regulation of land warfare has always been relating
to the ever-changing and developing technology, particularly with respect to
weapons employed. That is reflected by the fact that the law is often two steps
behind those developments, as it constantly needs to adapt and attempt to
regulate the use of new and more lethal or powerful weapons. The law has
had to address the use of weapons ranging from poisoned arrows to poison-
ous or asphyxiating gases [see: Geneva Gas Protocol (1925); Chemical Weapons
Convention (1992)], expanding bullets [see: Dum-Dum (Expanding) Bullets],
nuclear weapons [see: Nuclear Weapons], anti-personnel land mines
[see: Landmines], biological weapons [see: Biological Weapons Conven-
tion (1972)] and more recently cluster bombs and the use of drones [see:
Convention on Cluster Munitions (2008); Drones]. Another challenge is to
find agreements between States on which weapons ought to be banned or
restricted.
The next challenge in the regulation of warfare may turn to military opera-
tions conducted in space or cyberspace, and whether the existing principles,
which have developed over time in the context of land warfare, can adapt
again and regulate military action conducted in a vastly different setting [see:
Cyber Warfare]. While there will certainly need to be more specific provisions
to deal with the unique circumstances of space and cyberspace, some of the
underlying principles and the interests which ihl seeks to protect will be
the same.
of Cambodia
Bibliography
W.H. Boothby, Weapons and the Law of Armed Conflict (2016).
H.S. Levie, ‘History of the Law of War on Land’, 838 irrc (2000).
Y. Sandoz, ‘Land Warfare’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of In-
ternational Law in Armed Conflict (2014).
M.N. Schmitt, ‘International Law and Military Operations in Space’, 10 Max Planck
Yearbook of United Nations Law (2006).
Landmines 461
Landmines. There are several treaties in ihl regulating landmines. These in-
clude the original (1980) and amended (1996) versions of Protocol ii ccw [see:
Convention on Certain Conventional Weapons (1980)], and the Convention
on the Prohibition of Anti-Personnel Mines of 1997 [see: Anti-Personnel Mine
Ban Convention (1997)].
Each of these treaties contains definitions identifying the constituent el-
ements of a landmine, and distinguish between those mines that are meant
for use against persons (anti-personnel mines) and those that are intended for
use against vehicles (anti-vehicle mines or mines other than anti-personnel
mines). The definitions in these treaties have many common elements.
A “mine” is defined rather consistently in ihl. Article 2(1) of the original and
amended versions of Protocol ii ccw and Article 2(2) of the Anti-Personnel
Mine Ban Convention define it as a munition placed on, under or near the
ground, or other surface area, and meant to be exploded by the presence, prox-
imity or contact of a person or vehicle. Thus, a landmine’s primary feature is
that it is an explosive weapon meant to be buried, placed on or near the ground
or connected to some other surface area. Another feature, and perhaps the one
that most distinguishes mines from other kinds of explosive weapons, is that
they are designed to be victim activated, that is, triggered by the intended tar-
get. Thus, munitions designed to be detonated by a timer, by command of the
user or by other means are not considered landmines in ihl.
Amended Protocol ii ccw and the Anti-Personnel Mine Convention spe-
cifically define “anti-personnel mine”. A definition of such mines was not in-
cluded in the original version of Protocol ii ccw, but one was developed for
its amended version in light of the effort to further regulate anti-personnel
mines at the First ccw Review Conference (1995–1996) and the develop-
ment of specific provisions in amended Protocol ii ccw regulating these
weapons.
For the most part, the definitions of an anti-personnel mine in Article 2(3) of
the amended version of Protocol ii ccw and Article 2(1) of the Anti-Personnel
Mine Ban Convention have common elements. The principal distinction is
that amended Protocol ii ccw defines an anti-personnel mine as “a mine that
is primarily designed to be exploded by the presence, proximity or contact of
a person and that will incapacitate, injure or kill one or more persons”. The
definition of the Anti-Personnel Mine Ban Convention omits “primarily”, but
retains the remaining elements. Thus, it defines an anti-personnel mine as
“a mine designed to be exploded by the presence, proximity or contact of a per-
son and that will incapacitate, injure or kill one or more persons”. The exclu-
sion of the word “primarily” was meant to clarify that the Anti-Personnel Mine
Ban Convention covers mines even when they have multiple functions (i.e. an
462 Laser Weapons
anti-personnel mine coupled with anti-vehicle mines). This has been one of
the criticisms of the definition used in amended Protocol ii ccw.
Questions are often raised as to how these definitions interrelate with other
kinds of munitions, such as improvised explosive devices (ieds) [see: Impro-
vised Explosive Devices] and booby traps [see: Booby-Traps]. While ieds are
not defined in any ihl treaty, a victim-activated ied would be considered as
a mine and fall under the treaties discussed above. Booby-traps are defined
in both the original and amended versions of Protocol ii ccw and there are
specific provisions regulating these weapons. But when such devices are explo-
sive, detonated by the action of the victim, and placed on, under or near the
ground, they can also be classified as mines given existing definitions.
Unlike anti-personnel mines, anti-vehicle mines are not specifically defined
in ihl. The elements identifying such mines are generally derived from the
definition of mine, as outlined above, which distinguishes between mines to be
detonated by a person and those to be detonated by a vehicle. While the terms
anti-vehicle or anti-tank mines are often widely used in general ihl discussions,
it is useful to note that in the ccw context such mines are normally referred to
as “mines other than anti-personnel mines”.
Bibliography
Geneva International Centre for Humanitarian Demining, The Humanitarian and
Developmental Impact of Anti-Vehicle Mines (2014).
International Campaign to Ban Landmines, Landmine Monitor (2016).
L. Maresca, S. Maslen, The Banning of Anti-Personnel Mines: The Legal Contributions
of the International Committee of the Red Cross 1955–1999 (2000).
S. Maslen, Commentaries on Arms Control Treaties, Vol i: The Convention on the Pro-
hibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines
and on their Destruction (2004).
Laser Weapons. Laser beams are capable of causing physical harm through
the use of directed and focused energy, heating or even tearing human tissue
apart. ihl prohibits the use of laser beams as weapons.
Laser weapons were first used in the 1982 Falkland War by UK armed forces
in order to blind pilots of Argentinian aircrafts. The U.S. and the Soviet Union
bilaterally restricted dangerous military use of laser weapons during peace-
time in 1989. The international community recognised the potential disastrous
Laser Weapons 463
effects of laser weapons on future battlefields, especially to the human eye.

As a result, States agreed to restrict the use of laser weapons in Protocol iv
ccw on 13 October 1995 [see: Convention on Certain Conventional Weapons
(1980)]. Protocol iv ccw prohibits the use and transfer, to State and non-State
actors, of blinding laser weapons. In particular, Article 1 Protocol iv ccw pro-
hibits “[t]o employ laser weapons specifically designed, as their sole combat
function or as one of their combat functions, to cause permanent blindness
to unenhanced vision, that is to the naked eye or to the eye with corrective
eyesight devices”.
The icrc has identified the prohibition of permanently blinding laser
weapons as a rule of customary ihl applicable in both international and non-
international armed conflicts [rule 86 icrc Customary ihl Study]. However,
some argue that such a rule has not yet materialised for non-international
armed conflicts [W.H. Boothby, Weapons and the Law of Armed Conflict
(2016), pp. 202–207]. The icc Statute was amended in 2017 to include the fol-
lowing war crime in international and non-international armed conflict: “[e]
mploying laser weapons specifically designed, as their sole combat function
or as one of their combat functions, to cause permanent blindness to unen-
hanced vision, that is to the naked eye or to the eye with corrective eyesight
devices” [art. 8(2(b)(xxix), 8(2)(e)(xviii)].
The main driver behind the restrictions on the use of laser beams in war-
fare is the general principle of ihl prohibiting to employ means and methods
of warfare that cause serious injury or unnecessary suffering [see: Superflu-
ous Injury and Unnecessary Suffering]. Indeed, large numbers of soldiers
returning blind from the battlefield would be an immensely heavy burden on
post-armed conflict medical and social services and society in general [B.M.
Carnahan, M. Robertson, ‘The Protocol on “Blinding Laser Weapons”: a New
Direction for International Humanitarian Law’, 90(3) ajil (1996), p. 485].
Laser pointers designed to guide bombs on target or to calculate the dis-
tance to a target are not prohibited, although some types could potentially be
damaging to the human eye.
According to Article 3 Protocol iv ccw, “[b]linding as an incidental or col-
lateral effect of the legitimate military employment of laser systems, including
laser systems used against optical equipment, is not covered by the prohibition
of this Protocol”. However, Article 2 Protocol iv ccw requires State parties to
take all feasible precautions to avoid permanent blindness to the naked eye
as an incidental effect of laser systems. This provision must be understood as
a prohibition to use any type of laser system, such as a laser pointer, with the
intention to cause permanent blindness.
464 Law Enforcement
Jeroen van den Boogaard – the views expressed are those of the author alone
with
Bibliography
B. Anderberg, O.E. Bring, M.L. Wolbarsht, ‘Blinding Laser Weapons and International
Humanitarian Law’, 29(3) Journal of Peace Research (1992).
W.H. Boothby, Weapons and the Law of Armed Conflict (2016), pp. 202–207.
B.M. Carnahan, M. Robertson, ‘The Protocol on “Blinding Laser Weapons”: a New
Direction for International Humanitarian Law’, 90(3) ajil (1996).
L. Doswald-Beck, ‘New Protocol on Blinding Laser Weapons’, 36(312) irrc (1996).
M.C. Zöckler, ‘Commentary on Protocol iv on Blinding Laser Weapons’, 1 yihl
(1998).
Law Enforcement. The concept of law enforcement refers to the activity of en-
suring the observance or obedience to the rules and norms governing a society.
It can also be defined as the “territorial and extraterritorial measures taken by
a State to vertically impose public security, law and order or to otherwise exer-
cise its authority or power over individuals in any place or manner whatsoev-
er” [N. Melzer, Targeted Killing in International Law (2008), p. 90]. The conduct
of activities falling into this concept is governed by “a normative framework
comprising the rules, principles and standards of international law” [Melzer,
p. 90].
Several soft law instruments use the concept of law enforcement in order to
refer to State agencies charged with performing police functions. For example,
the 1979 UN Code of Conduct for Law Enforcement Officials (UN Code of Con-
duct) states that the “term ‘law enforcement officials’, includes all officers of
the law, whether appointed or elected, who exercise police powers, especially
the powers of arrest or detention” [art. 1 UN Code of Conduct (commentary)].
The scope of power of law enforcement agencies is defined and limited within
a specified jurisdiction by the domestic law of each country. On that point, the
UN Code of Conduct establishes that “[l]aw enforcement officials shall at all
times fulfil the duty imposed upon them by law, by serving the community and
by protecting all persons against illegal acts, consistent with the high degree of
responsibility required by their profession” [art. 1 UN Code of Conduct]. The
legal status of law enforcement agencies are “regulated differently by different
states” [D. Fleck, The Handbook of International Humanitarian Law (2008),
p. 88].
Law Enforcement 465
The general international normative framework that applies to the State

agencies and officials in charge of applying law enforcement derives principally
from ihrl [see: International Human Rights Law]. In times of armed conflict,
that same normative framework continues, in principle, to apply. However, in
certain circumstances, law enforcement operations must be analyzed taking
into account the principle of lex specialis, which may lead to the application of
ihl [Fleck, pp. 45–78].
According to ihrl, an operation conducted by a State security agency and
officials must adhere to strict rules and actions, thus denoting a defensive use
of force as an exceptional last resort measure. In the performance of their
duty, law enforcement officials must “respect and protect human dignity and
maintain and uphold the human rights of all persons” [art. 2 UN Code of Con-
duct]. Such operations must be analyzed taking into account essential actions
in three different phases: (a) preventive actions related to the lawfulness and
exceptionality of the use of force, in relation to the obligations to ensure rights
and to adapt domestic law; (b) actions at the time of the incident connected
with a legitimate purpose, absolute necessity and proportionality; and (c) ac-
tions following the incident associated with due diligence and the principle
of humanity in relation to the obligation to respect and ensure the right to
life and personal integrity. In this regard, law enforcement operations differ
significantly from operations within the framework of ihl, since the latter
proceeds from the premise that the use of force is permissible under certain
circumstances [see: Hostilities, Conduct of; Combatants]. In practice, a lack
of clarity or difference of opinion as the applicable paradigm (either law en-
forcement or ihl) may entail different assessments as to the legality of certain
operations [see: Targeted Killing].
Jorge Errandonea – the views expressed are those of the author alone and
do not necessarily reflect the views of the Inter-American Court of Human
Rights
Bibliography
Committee of Ministers of the Council of Europe, Recommendation (2001)10 – The
European Code of Police Ethics (2001).
Judgment on Preliminary Objections, Merits, Reparations and Costs, Case of Landaeta
Mejías Brothers et al. v. Venezuela, IACtHR, paras. 122–143.
UN Congress on the Prevention of Crime and the Treatment of Offenders, Basic Prin-
ciples on the Use of Force and Firearms by Law Enforcement Officials (1990).
unga, Resolution 34/169 – Code of Conduct for Law Enforcement Officials (1979).
466 Laws and Customs of War
Laws and Customs of War. The icj has stated that “‘the laws and customs
of war’ − as they were traditionally called − were the subject of efforts at
codification undertaken in The Hague […]. This ‘Hague Law’ and, more par-
ticularly, the Regulations Respecting the Laws and Customs of War on Land,
fixed the rights and duties of the belligerents in their conduct of operations
and limited the choice of means and methods of injuring the enemy in an in-
ternational armed conflict” [Advisory Opinion, Legality of the Threat or Use
of Nuclear Weapons, icj, para. 75; see: Hague Law; Hague Convention (iv)
Concerning the Laws and Customs of War on Land (1907); Hague Regula-
tions (1907)]. It then continued to explain that “Geneva Law”, protecting vic-
tims of war, should be added to this and that those branches have become so
interrelated that they can be considered as one single system of law named
ihl, in respect of which the APs are often mentioned as having merged the
two branches of law [Legality of the Threat or Use of Nuclear Weapons, para.
75; see: Geneva Law]. The modern expression ihl is defined by the icrc as
“part of the body of international law that governs relations between States. It
aims to protect persons who are not or are no longer taking part in hostilities,
the sick and wounded, prisoners and civilians, and to define the rights and
obligations of the parties to a conflict in the conduct of hostilities” [icrc, War
and International Humanitarian Law – Overview (2010); see: International
Humanitarian Law].
Nevertheless, it has to be noted that the notion of laws and customs of war
has not completely disappeared and is still favoured by some (e.g. the U.S.)
over the term ihl. Also, in the statutes of the icc and other international crim-
inal tribunals, reference is still made to the laws and customs of war in rela-
tion to the material jurisdiction of these courts and tribunals over war crimes.
For example, Article 8(2)(b) icc Statute refers to “laws and customs applicable
in international armed conflict”, which seems to be a mix of traditional and
modern terminology. The violations listed in this provision are derived from
various sources, including the 1907 Hague Regulations, the 1949 GCs, api, and
some other international instruments. Moreover, Article 3 icty Statute refers
to “violations of the laws or customs of war”. As the basis for this provision,
the unsg notes that “[…] the Hague Regulations also recognize that the right
of belligerents to conduct warfare is not unlimited and that resort to certain
methods of waging war is prohibited under the rules of land warfare” [unsc,
Report of the Secretary-General Pursuant to Paragraph 2 of Security Coun-
cil Resolution 808 (1993), para. 43]. ihl is, thus, the contemporary and more
widely used terminology, but the notion laws and customs of war is still used,
either interchangeably with ihl or in a stricter sense, referring more closely to
the Hague Law.
Legislation in Occupied Territory 467
Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for
his feedback) – the views expressed are those of the author alone and do not
necessarily reflect the views of the Institut de Droit International or the United
Nations High Commissioner for Refugees
Bibliography
A. Alexander, ‘A Short History of International Humanitarian Law’, 26(1) ejil (2015).
Laws of War; see: Laws and Customs of War; International Humanitarian

Law
Legislation in Occupied Territory. In line with the temporary character of

occupation [see: Occupation], an occupying power is obliged, in principle, to
maintain the legislation in force in occupied territory.
In this regard, Article 43 1907 Hague Regulations proclaims that, “[t]he au-
thority of the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the measures in his power to restore, and
ensure, as far as possible, public order and safety, while respecting, unless ab-
solutely prevented, the laws in force in the country”. This provision reflects
international customary law [Advisory Opinion, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, icj, paras. 89,
124]. Whilst it appears to mandate respect for local legislation only in relation
to the obligation of the occupying power to maintain “public order and safety”
[see: Public Order and Safety; Law Enforcement], the authentic French text,
which refers to the wider notion of “l’ordre et la vie publics”, establishes that this
provision is of a wider scope [M. Sassòli, ‘Legislation and Maintenance of Pub-
lic Order and Civil Life by Occupying Powers’, 16(4) ejil (2005), pp. 663–664].
With the adoption of the GCs, this principle was expressed more precisely:
“[t]he penal laws of the occupied territory shall remain in force, with the excep-
tion that they may be repealed or suspended by the Occupying Power in cases
where they constitute a threat to its security or an obstacle to the application
of” gciv [art. 64(1) gciv].
However, Article 43 1907 Hague Regulations and Article 64(2) gciv rec-
ognise exceptions to the obligation to maintain local legislation in force.
Whilst Article 64(1) gciv refers to penal legislation, the neutral formulation
in Article 64(2) gciv also permits other types of legislation to be introduced
[1958 icrc Commentary gciv, p. 337]. Legislative changes may only be intro-
duced under certain circumstances. First, an occupying power must be “abso-
lutely prevented” from respecting the legislation in force [art. 43 1907 Hague
468 Looting
Regulations] or it must deem such changes to be “essential” [art. 64(1) gciv].

Second, legislation must serve one of the following purposes: (i) the securi-
ty of the occupying power, such as a prohibition to bear arms or curtailing
the right to assembly; (ii) the ability of the occupying power to respect gciv,
such as with regard to its obligation to ensure public health and hygiene; and
(iii) the obligation of the occupying power to maintain public order, such as
an increase in prison sentences in response to looting [Sassòli, pp. 674–675,
678–680].
Two additional bases to introduce legislative measures in occupied terri-
tory may be identified. As an occupying power remains bound by ihrl, it is
also obliged to abolish legislation contravening this body of law and even to
adopt new legislation [see: International Human Rights Law]. However, it re-
mains controversial whether an occupying power may exercise the discretion
afforded to States in relation to the manner in which ihrl is implemented
[Sassòli, pp. 676–677]. Moreover, an occupying power may be permitted to leg-
islate pursuant to authorisation by the unsc.
The possibility to deviate from local legislation thus requires delicate bal-
ancing between the essentially temporary character of occupation and the
causes justifying such a course of action. This balance was not respected,
for instance, when the occupying powers in Iraq allowed foreign investors
to “transfer abroad without delay all funds associated with its foreign invest-
ment”, thus abolishing pre-existing restrictions with regard to the obligation to
reinvest profits [Sassòli, p. 679].
Bibliography
A. Roberts, ‘The End of Occupation: Iraq 2004’, 54(1) Int’l & Comp. L.Q. (2005).
M. Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying
Powers’, 16(4) ejil (2005).
Levée en Masse; see: Direct Participation in Hostilities; Civilians; Combatants
Lieber Code; see: Land Warfare; International Humanitarian Law
Life, Right to; see: Direct Participation in Hostilities; Targeted Killing; Human
Rights Courts and Bodies, International Human Rights Law
Looting; see: Pillage

Marking 469
Marking. Marking refers to the requirement for parties to a conflict to mark

medical units and establishments with the distinctive flag of the Convention,
i.e., the red cross, the red crescent, or the red crystal [see: Emblem].
The marking of military medical establishments and units with the “dis-
tinctive flag” was first provided for in the Geneva Convention of 1864, and has
been repeatedly reaffirmed in subsequent instruments. Article 18(1) to (4) api
requires parties to attempt to ensure that medical units and transports are
identifiable, including by marking them with the distinctive emblem (subject
to the consent of the competent authority), and through the implementation
of methods and procedures which make it possible to recognise the units and
transports bearing the emblem. Relatedly, Article 42 gci provides that the dis-
tinctive flag be hoisted only over medical units and establishments entitled
to respect under that Convention and requires that parties take the neces-
sary steps – insofar as military considerations permit – to make the emblems
clearly visible to enemy forces. While these steps are context-specific, the icrc
has, in cooperation with armed forces, conducted numerous tests as to how to
ensure markings are visible to enemy forces. Many of their findings have now
been incorporated into Regulations annexed to api.
The caveat included in Article 42 gci makes clear that commanders retain
a degree of discretion in assessing whether military considerations allow for
the display of the emblem in operational contexts. It is generally recognised,
for example, that a party may choose not to display markings when medical
units must be placed within or near military objectives or where medical units
and establishments are likely to be better protected by not displaying the em-
blem (such as when a belligerent systematically targets medical units). These
are, however, exceptional circumstances, and military doctrine recognises that
orders to camouflage medical units should be rescinded as soon as the security
situation on the ground permits.
The rationale for a common marking requirement is expressly stated in
Article 42 gci: to avoid the possibility of hostile action against protected medi-
cal units and establishments. In this respect, there is a symbiotic relationship
between the requirement to take the necessary steps to make the emblem vis-
ible to enemy forces and the fundamental obligation of those forces to take all
feasible precautions to verify that the target of their attack is indeed a military
objective [see: Precautions, Active].
Marking also has potentially considerable significance for assessing wheth-
er a given attack amounts to a war crime. In the U.S. military’s report on the
2015 air-strike on a Médecins Sans Frontières (msf) hospital in Afghanistan,
for example, the mandate of the investigating officers included the question
of whether the facility had visible outward markings indicating its status as a
470 Martens Clause
hospital. While the issue was not dispositive, the investigating officers found
that there was some MSF-specific marking, but no internationally recognised
symbols, and opined that, had it been so marked, it was possible the hospital
would not have been engaged.
Maurice Cotter – the views expressed are those of the author alone and do not
Bibliography
USFOR-AFGHANISTAN, Investigation Report of the Airstrike on the Médecins Sans
Frontières / Doctors Without Borders Trauma Center in Kunduz, Afghanistan on 3
October 2015, pp. 2, 46–47.
Martens Clause. The Martens Clause, introduced by Russian international

lawyer and diplomat Fyodor Fyodorovich Martens at the 1899 Hague Peace
Conference, found its way into Paragraph 9 of the Preamble of the 1899 Hague
Convention (ii), as a compromise formulation to solve the disagreement that
had sparked between a group of smaller States, headed by Belgium, and the
great powers, in particular Germany and Russia. Belgium sought to limit the
granting of extensive rights to occupying powers and objected to the proposed
definition of combatants, which denied the right of civilians to armed resis-
tance against their occupiers [see: Combatants; Civilians]. Belgium proposed
to leave these matters to customary law, while Germany and Russia objected.
The deadlock was finally broken by Martens, who introduced the following
clause: “[u]ntil a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that, in cases not included in the
Regulations adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as they result
from the usages established between civilized nations, from the laws of hu-
manity, and the requirements of the public conscience”. The drafting history
and the sentence following the Clause in the Preamble of the 1899 Hague Con-
vention makes clear that Martens’ addition was meant to resolve the disagree-
ment over the definition of lawful combatant. Today, the Clause permeates the
entire body of ihl.
Subsequently, the Clause was inserted verbatim or with slight modifications
into other instruments, such as: (i) the Preamble of the 1907 Hague Conven-
tion (iv); (ii) the Preamble of the 1925 Protocol for the Prohibition of the Use
of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods
of Warfare; (iii) Articles 63(4) gci, 62(4) gcii, 142(4) gciii, 158(4) gciv, and
Martens Clause 471
Article 1(2) api; (iv) the Preamble of apii; and (v) the Preamble of the ccw. In
modern versions of the Clause, the terminology “usages established between
civilized nations” was replaced by “established custom”, whereas the concepts
“laws of humanity, and the requirements of the public conscience” gave way to
“principles of humanity” and “dictates of public conscience”.
The icj declared the Martens Clause to be an “expression of the pre-existing
customary law” whose “continuing existence and applicability is not to be
doubted” in 1996 [Advisory Opinion, Legality of the Threat or Use of Nuclear
Weapons, icj, paras. 84, 87].
1. Interpretation of the Martens Clause

Meron equates “principles of humanity” with “elementary considerations of
humanity” and accepts “dictates of public conscience” to relate to “public opin-
ion” or opinio iuris [T. Meron, ‘The Martens Clause, Principles of Humanity,
and Dictates of Public Conscience’, 94 ajil (2000), pp. 82–83]. Cassese pro-
poses to deduce the “standards of humanity” from international human rights
standards and the “demands of public conscience” from “resolutions and other
authoritative acts of representative international bodies” [A. Cassese, ‘The
Martens Clause: Half a Loaf or Simply Pie in the Sky?’, 11 ejil (2000), p. 212].
The Clause is considered to serve three different functions, which are not
mutually exclusive.
First, the Clause is understood to rebut the a contrario argument that bel-
ligerents are free in their conduct of hostilities unless something is expressly
prohibited by treaty law. The Clause prevents such claims and binds the bellig-
erents’ actions to conform to “principles of humanity” and “dictates of public
conscience”.
Second, the Martens Clause may be seen as an interpretative guideline dic-
tating that the interpretation of ihl rules be consistent with the “principles of
humanity” and “dictates of public conscience”. This yardstick assists in the con-
cretization of ambiguous rules and allows ihl to adapt to new developments
in the field of warfare and weaponry.
Third, the Clause has created a separate source of law alongside treaty law
and customary law [art. 38(1) icj Statute]. In this context, it is also argued that
the Martens Clause has an “indirect impact” on the sources and the process of
norm-creation. Considering that it puts the “principles of humanity” and “dic-
tates of public conscience” on par with “established custom”, for the purposes
of ihl a principle derived from either of the two former concepts may not
necessarily require proof of State practice, thus elevating the element of opinio
iuris to a “rank higher than normally admitted” [Cassese, p. 214].
472 Martens Clause
2. Reception in International Jurisprudence

In the Krupp case, the U.S. Military Tribunal, when rejecting the defence ar-
gument that the 1907 Hague Regulations were inapplicable in times of “total
war”, clarified that these Regulations not only were applicable as treaty law, but
they had become customary law, binding Germany. The judges’ subsequent
reference to the Martens Clause was merely made in an effort to bolster their
reasoning, since, as they admitted, the law was clear and reference to general
principles was not necessary. [Judgment, Krupp et al., U.S. Military Tribunal,
p. 133].
The icj declared the applicability of ihl principles and rules to the use
of nuclear weapons, inter alia, as a result of the Martens Clause. It also held
that the Clause pertains to two cardinal principles of ihl, namely the protec-
tion of civilians and civilian objects and the prohibition to cause unneces-
sary suffering [Legality of the Threat or Use of Nuclear Weapons, paras. 78,
87; see: Civilians; Civilian Objects; Superfluous Injury and Unnecessary
Suffering].
In the Furundžija case, an icty Trial Chamber made a cursory reference to
the Martens Clause when discussing the existence of the prohibition of tor-
ture under customary law [Judgment, Furundžija, icty, Trial Chamber, para.
137; see: Torture]. In the Kupreškić case, the judges confirmed the customary
nature of the prohibition of reprisals against civilians, as enshrined in Article
51(6) api. They also established the conditions under which belligerent repri-
sals could lawfully be invoked, including the requirement that they comply
with “elementary considerations of humanity” [Judgment, Kupreškić et al.,
icty, Trial Chamber, para. 535; see: Reprisals against Civilians]. They further
discussed whether this principle had transformed into a general rule, binding
States non-parties to api, and opined that in this regard the Martens Clause
had triggered the emergence of a principle of ihl “even where State practice
is scant or inconsistent” [Kupreškić et al., paras. 527, 531]. Finally, that Trial
Chamber also espoused its views on the interpretative function of the Martens
Clause holding that it “[…] enjoins, as a minimum, reference to those princi-
ples and dictates any time a rule of international humanitarian law is not suffi-
ciently rigorous or precise: in those instances the scope and purport of the rule
must be defined with reference to those principles and dictates” [Kupreškić
et al., para. 525]. The Martić Trial Chamber followed the previous Kupreškić
findings on belligerent reprisals, and added that the condition to comply with
the “laws of humanity and dictates of public conscience” meant “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 prohibi-
tion of targeting civilians” [Judgment, Martić, icty, Trial Chamber, para. 467].
Medical Aircrafts 473
Lastly, icc Trial Chamber vi in the Ntaganda case recalled the Martens
Clause when holding that the war crime provisions of rape and sexual slav-
ery protected also members of an armed group, in addition to civilians and
persons hors de combat [Second Decision on the Defence’s Challenge to the
Jurisdiction of the Court in respect of Counts 6 and 9, Ntaganda, icc, Trial
Chamber vi, para. 47]. However, the Appeals Chamber later rejected reference
to the Clause since, in conformity with Article 21(1)(a) icc Statute, a literal and
contextual interpretation of the relevant provisions of the icc Statute alone
sufficed to resolve the question of their applicability.
Bibliography
A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ 11(1) ejil (2000).
R. Giladi, ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’,
25(3) ejil (2014).
J. Kross, Professor Martens’ Departure (1995).
T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Con-
science’, 94(1) ajil (2000).
V.V. Pustogarov, ‘The Martens Clause in International Law’, 1(2) Journal of History of
Means of Warfare; see: Hostilities, Conduct of
Medical Aircrafts. Medical aircrafts that fall within the definition of medi-
cal transports [see: Medical Transports] are protected objects under ihl and
therefore must be respected and protected when carrying out their medical
function [art. 36 gci; art. 24 api].
The evacuation of the wounded and sick by air has grown to become a
key medical function in military operations [see: Wounded and Sick]. Con-
sequently, the rules conferring protection on medical aircrafts have been
strengthened since 1949. Today, we look beyond the GCs and APs to under-
stand the definition of medical aircraft and the protections that term invokes.
The Program on Humanitarian Policy and Conflict Research’s 2009 Manual on
International Law Applicable to Air and Missile Warfare (hpcr Manual) is one
example of this expansion of the rules and is recognised as an authoritative
restatement of ihl, as it relates to air and missile warfare [2016 icrc Com-
mentary gci, para. 2426]. The hpcr Manual defines “medical aircraft” as any
aircraft, including planes, airships, and helicopters, that are “permanently or
474 Medical Aircrafts
temporarily assigned – by the competent authorities of a Belligerent Party –

exclusively to aerial transportation or treatment of wounded, sick, or ship-
wrecked persons, and/or the transport of medical personnel and medical
equipment or supplies” [rule 1(d), (u) hprc Manual; art. 8(j) api; see: Medical
Personnel; Medical Equipment].
As is the case with all medical transports, the protection to which medi-
cal aircrafts are entitled will be lost if they are used to commit, “outside their
humanitarian duties”, acts that are “harmful to the enemy” [rule 83 hpcr
Manual; see: Acts Harmful to the Enemy]. For instance, aircrafts transporting
weapons and combatants or collecting military intelligence will forfeit their
protected status [art. 28(1)-(2) api]. This, however, does not include means of
self-defence, as equipping aircrafts with “light individual weapons necessary
to protect the aircraft, the medical personnel and the wounded, sick or ship-
wrecked on board” will not result in loss of protection [rule 82 hpcr Manual;
art. 28(3) api].
Additionally, medical aircrafts are prohibited from flying over enemy or
enemy-occupied territory without prior consent and must obey summons to
land [art. 36 gci; arts. 27, 30 api]. The absence of, or deviation from, such an
agreement will not immediately result in loss of protection; the adverse party
must allow reasonable time for notification or compliance [art. 27 api]. If sum-
moned to land for inspection, the inspecting party must commence the search
expeditiously and without delay [art. 30 api]. Depending on the inspecting
party’s findings, the aircraft shall either be authorised to continue its flight
without delay, or the aircraft will be seized and its crew and the wounded and
sick shall be prisoners of war [art. 30 api; art. 36 gci; see: Prisoners of War].
To emphasise protective status, medical aircrafts are to be clearly marked
with the distinctive emblem [art. 36 gci; rule 76(a) hpcr Manual; see:
Emblem]. Civilian medical aircrafts “may” or “ought” to be marked as such [art.
22 gci; rule 76(c) hpcr Manual].
This obligation to respect and protect medical aircrafts applies at all times,
that is, in times of international and non-international armed conflict [art. 11
apii; rule 29 icrc Customary ihl Study].
Fauve Kurnadi – the views expressed are those of the author alone and do not
necessarily reflect the views of Australian Red Cross
Bibliography
L. Doswald-Beck, ‘The Protection of Medical Aircraft in International Law’, 27 Israel
Yearbook on Human Rights (1997).
Harvard Program on Humanitarian Policy and Conflict Research, ‘Manual on Interna-
tional Law Applicable to Air and Missile Warfare’ (2009).
Medical Equipment 475
Medical Equipment. ihl establishes comprehensive and detailed protection

for medical personnel [see: Medical Personnel], medical units [see: Medical
Units and Establishments], medical transports [see: Medical Transports],
and medical material.
Under the rules on the conduct of hostilities, medical objects are to be
considered civilian objects. In particular, they must be respected and pro-
tected at all times by belligerents and are not to be the object of attack. State
practice evidences that this is a rule of customary international law [rule 30
icrc Customary ihl Study]. Furthermore, under the icc Statute, intention-
ally directing attacks against medical material constitutes a war crime in
both international and non-international armed conflicts [art. 8(2)(b)(xxiv),
8(2)(e)(ii)].
gci specifies that “the material of mobile medical units of the armed forc-
es which fall into the hands of the enemy, shall be reserved for the care of
wounded and sick” [art. 33(1) gci]. This provision constitutes an exception
to the basic principle of international law that establishes an entitlement for
belligerents to take and freely use any movable public property, belonging
to the enemy and captured on the battlefield, as booty of war [2016 icrc
Commentary gci, para. 2329; see: Requisitions]. Conversely, such a limita-
tion does not apply to fixed medical establishments, whose buildings, mate-
rial, and stores, fallen into enemy hands, remain subject to the laws of war
[art. 33(2) gci; see also: art. 28 gcii]. Practically, this means that materials
and stores of fixed establishments, being movable property, may be appropri-
ated by the capturing power; buildings, on the other hand, being real property,
can be used and administered by the party in whose hands they have fallen,
but not captured as booty of war [2016 icrc Commentary gci, para. 2334].
The buildings, material, and stores of fixed medical establishments are sub-
ject to a different limitation: they cannot be diverted from their purpose, if
they are necessary for the care of the wounded and sick [art. 33(2) gci; 2016
icrc Commentary gci, para. 2335]. Nevertheless, contrary to what is provided
for in relation to mobile medical units, the humanitarian aim of this rule is
subject to the principle of urgent military necessity [see: Military Necessity].
This entails that the enemy can make use of these medical facilities for other
purposes. However, before resorting to such an extreme measure, alternative
arrangements must be made for the welfare of the wounded and sick who are
nursed therein [art. 33(2) gci; 2016 icrc Commentary gci, para. 2335]. This
paragraph reflects the cruel reality of war and, in the existing tension between
military exigencies and humanitarian considerations, it constitutes a “via me-
dia” between two forces opposing each other [1952 icrc Commentary gci,
p. 275].
476 Medical Equipment
Article 33(3) gci further specifies that the material and stores of mobile
and fixed medical establishments must not be intentionally destroyed. This
provision clearly exceeds a mere obligation to protect: it aims at discouraging
those holding such objects from destroying them as a precautionary measure
to prevent an enemy takeover. In this regard, it should be noted that “extensive
destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly” constitutes a grave breach under
Articles 50 gci, 51 gcii and 147 gciv [see: Grave Breaches; Property, Destruc-
tion and Appropriation/Seizure of].
Article 57 gciv forbids the requisitioning of the material and stores of
civilian hospitals so long as they are necessary for the needs of the civilian
population [see: Hospitals], whereas Article 14 api, whose purpose it is to
complete the provisions contained in Article 57 gciv, regulates the requisition
of civilian medical units in occupied territories. In particular, Article 14 api
requires the occupying power to ensure that the medical needs of the popu-
lation continue to be satisfied. Accordingly, it prohibits the requisitioning
of civilian medical units, their equipment (whether this includes medical
equipment, such as operating tables, or functional equipment, such as the
heating system or the kitchen), as well as their matériel (such as surgical in-
struments) or the services of their personnel, so long as these resources are
necessary for the provision of adequate medical services [art. 14(2) api; 1987
icrc Commentary api, para. 587]. However, provided that the general rule
in paragraph 2 continues to be observed, paragraph 3 allows these resources
to be requisitioned if: (i) they are necessary for the adequate and immedi-
ate treatment of the wounded and sick members of the armed forces of the
occupying power, or of prisoners of war; (ii) such necessity still exists; (iii) ar-
rangements are made to ensure that the medical needs of the civilian popula-
tion, as well as those of any wounded and sick under treatment, continue to be
satisfied.
Medical objects may lose their specific protection in case they are used to
commit acts harmful to the enemy, outside their humanitarian function [art
21 gci; art. 34 gcii; art. 13 api; art. 11 apii; rules 28–29 icrc Customary ihl
Study; see: Acts Harmful to the Enemy]. Although the term “acts harmful to
the enemy” is not defined in treaty law, the icrc is of the view that the loss of
protection would not necessarily turn medical objects into military objectives.
Indeed, it is argued that not all forms of acts harmful to the enemies would
make an effective contribution to military action, and an attack against them
would not necessarily offer a definite military advantage [icrc, Internation-
al Humanitarian Law and the Challenges of Contemporary Armed Conflicts
(2015), pp. 32–33].
Medical or Scientific Experiments 477
Bibliography
P. de Waard, J. Tarrant, ‘Protection of Military Medical Personnel in Armed Conflicts’,
35(1) uwa Law Review (2010).
unsc, Resolution 2286 (2016) on Protection of the Wounded and Sick, Medical Person-
nel and Humanitarian Personnel in Armed Conflict, S/RES/2286 (2016).
Medical Ethics; see: Medical Standards, Generally Accepted
Medical or Scientific Experiments. Medical or scientific experiments on

persons are generally prohibited under ihl. State practice confirms that this
prohibition, including mutilation [see: Physical Mutilation], has evolved
into a norm of customary international law, applicable in both interna-
tional and non-international armed conflicts [rule 92 icrc Customary ihl
Study].
According to Article 13 gciii and Article 32 gciv, such experiments are pro-
hibited when they are not justified by the medical treatment of the protected
person concerned [see: Protected Persons]. The same proscription is also set
out in Article 12(2) gci and Article 12(2) gcii in relation to “biological experi-
ments”. By prohibiting such experiments on protected persons, the Diplomatic
Conference explicitly intended to prevent a recurrence of cruel practices car-
ried out by physicians, in the name of science and medicine, during World War
ii [2016 Commentary gci, para. 1413].
Similarly, api prohibits “medical or scientific experiments”, as well as “any
medical procedure which is not indicated by the state of health of the person
concerned and which is not consistent with generally accepted medical stan-
dards” [art. 11(1), 11(2)(b) api; see: Removal of Tissue or Organs]. Furthermore,
it is a grave breach of api if the medical procedure seriously endangers the
physical or mental health or integrity of such person [art. 11(4) api]. apii also
prohibits the same conduct with respect to persons deprived of their liberty
for reasons related to the armed conflict [art. 5(2)(e) apii].
Historically, principles defining what could be regarded as admissible medi-
cal research on human beings were delineated for the first time at the interna-
tional level in 1947, at the end of the Doctors’ Trial in Nuremberg [Judgment,
usa vs. Karl Brandt et al. (“Doctors’ Trial” or “Medical Case”), US Military Tribu-
nal in Nuremberg]. These ten ethical guidelines, that should be followed when
conducting medical or scientific experiments on human subjects, were thus
478 Medical or Scientific Experiments
incorporated in what became known as the Nuremberg Code. In this respect,

neither the GCs nor the APs define the concept of “biological experiments”.
According to the icrc, in its ordinary meaning, the term refers to conduct
whose purpose it is “to study the effects, at that time unknown, of a product or
a situation on the human body” [2016 icrc Commentary gci, para. 1414; 2017
icrc Commentary gcii, para. 1459].
Conducting “biological experiments” on protected persons is included
among the grave breaches of the GCs [art. 50 gci; art. 51 gcii; art. 130 gciii;
art. 147 gciv; see: Grave Breaches] and constitutes a war crime under Article
8(2)(a)(ii) icc Statute and Article 2(b) icty Statute. Furthermore, according
to the icc Statute, subjecting persons who are in the power of another party
to the conflict to “medical or scientific experiments of any kind, which are
neither justified by the medical, dental or hospital treatment of the person
concerned, nor carried out in his or her interest, and which cause death or seri-
ously endanger the health of such person or persons” constitutes a war crime
in both international and non-international armed conflicts [art. 8(2)(b)(x),
8(2)(e)(xi) icc Statute].
Most international instruments, official statements, and case-law relating
to war crimes are silent as to whether the prohibition of medical or scien-
tific experiments is absolute or subject to exceptions, in particular if the de-
tained person consented to the procedure [J.-M. Henckaerts, L. Doswald-Beck,
Customary International Humanitarian Law (2005), p. 322]. The issue was
discussed during the negotiations of the icc Elements of Crimes and the con-
ference reached the conclusion that the proscription was absolute [fn. 46, 69
icc Elements of Crimes]. Article 7 iccpr expressly establishes the prohibi-
tion as non-derogable. Accordingly, the hrc has specified that “special pro-
tection in regard to such experiments is necessary in the case of persons not
capable of giving valid consent, and in particular those under any form of
detention or imprisonment” [hrc, General Comment No. 20: Article 7 (1992),
para. 7]. Likewise, the unga, in its Body of Principles for the Protection of all
Persons under any Form of Detention or Imprisonment, forbids any medical
or scientific experimentation which may be detrimental to health, even with
the detainee’s consent [unga, Resolution 43/173 (1988), Principle 22]. In this
regard, the icrc updated Commentaries are crystal clear: unless the treat-
ment is justified by therapeutic purposes or clinical research, the prohibition is
absolute, as wounded, sick, shipwrecked, or detained persons cannot validly
give consent to any particular experiment [2016 icrc Commentary gci, para.
1416; 2017 icrc Commentary gcii, para. 1461].
Medical Personnel 479
Bibliography
Judgment, usa vs. Karl Brandt et al., Trials of War Criminals Before the Nuremberg
Military Tribunals under Control Council Law No. 10 , Vol. ii, pp. 171–300.
S. Mehring, ‘Medical War Crimes’, 15 Max Planck Yearbook of United Nations Law
(2011).
Medical Personnel. Personnel assigned exclusively to medical duties must be

respected and protected in all circumstances. Directing attacks against such
personnel is a serious violation of ihl and is punishable under international
criminal law.
The amelioration of the condition of the wounded, sick and shipwrecked
[see: Wounded and Sick; Shipwrecked] is a key objective of gci and gcii.
To effectively safeguard this objective, ihl extends protections to the medical
personnel that come to their aid, thereby ensuring that those injured are col-
lected from the battlefield and treated humanely and impartially. It was Henry
Dunant, so moved by his experience following the Battle of Solferino, who first
inspired this notion of protection [see: Dunant, Henry].
The expression “medical personnel” is defined as military or civilian per-
sons who have been exclusively assigned to a specific medical purpose [art.
8(c) api]. This purpose may include the collection, transportation, diagnosis,
or treatment of the wounded, sick, and shipwrecked; the prevention of disease;
or the administration of medical units or medical transports [art. 8(e) api].
Permanent and temporary assignments are included in this definition, though
this difference does not affect the protected status of those assigned, provided
that their duties are of an exclusively medical nature. Permanent medical per-
sonnel, by their character, are exclusively assigned to a medical purpose “for
an indeterminate period” [art. 8(k) api], for instance, members of the armed
forces assigned to serve as Medical Officers. The protection of temporary
medical personnel, such as auxiliary stretcher-bearers, however, commences
only when those persons take up assignments that are exclusively devoted to
medical purposes, and only for so long as that function remains exclusively
medical.
Medical personnel can be classified into a number of categories: (i) military;
(ii) civilian; (iii) medical personnel of National Red Cross or Red Crescent So-
cieties or of other duly recognised and authorised voluntary aid societies; and
(iv) medical personnel made available to a party to the conflict by a neutral
third State, or a recognised and authorised aid society of such State, or an im-
partial international humanitarian organisation [arts. 24–27 gci; arts. 36–37
gcii; art. 20 gciv; arts. 8(c), 9(2) api]. Medical personnel are protected by the
480 Medical Personnel
distinctive emblems, but will not lose their protected status should they fail to
display it [see: Emblem].
The obligation to respect and protect medical personnel is a well-established
principle in ihl having first appeared, in essence, in Article 2 of the 1864
Geneva Convention. Since then, treaty law has made it clear that all medical
personnel must be respected and protected in armed conflict [arts. 24–25 gci;
arts. 36–37 gcii; art. 15 api; art. 9 apii], and State practice has established this
rule as a norm of customary international law [rule 25 icrc Customary ihl
Study]. It has also been enshrined in international criminal law [art. 8(2)(b)
(xxiv), 8(2)(e)(ii) icc Statute]. The obligation itself invokes dual duties: a nega-
tive duty to respect, that is to say, “to refrain from engaging in certain types of
behaviour, such as attacks, vis-à-vis the protected persons”, and a positive duty
to protect, that is, “to take certain steps to the benefit of those persons, such as
reacting against third parties seeking to interfere with their ability to carry out
their work” [2016 icrc Commentary gci, para. 1984].
There is no checklist against which one can verify the legality of an act or
measure. However, at a minimum, the obligation to respect and protect in-
cludes: (i) the prohibition against intentionally and directly attacking, killing,
harming, kidnapping, threatening, intimidating, physically assaulting or arbi-
trarily arresting medical personnel [2016 icrc Commentary gci, para. 1987];
(ii) the protection from punishment for carrying out medical activities in line
with medical ethics or from being compelled to perform medical activities that
contravene medical rules and ethics [art. 16 api]; and (iii) the granting of ac-
cess to civilian medical personnel to any areas where their services are essen-
tial [art. 15(4) api].
This obligation applies in all circumstances, but there are instances in
which protection will cease, namely, if medical personnel commit acts “harm-
ful to the enemy” and “outside their humanitarian duties” [arts. 21–22 gci; art.
13 api; art. 11 apii; rule 25 icrc Customary ihl Study; see: Acts Harmful to the
Enemy].
Captured medical personnel are not prisoners of war [see: Prisoners of
War], but will benefit, as a minimum, from the same protection standards af-
forded under gciii [art. 28 gci]. Their return must be facilitated as quickly as
possible, unless retention is temporarily required to meet the medical needs of
detained prisoners of war [art. 30 gci]. There is no comparable legal require-
ment to return medical personnel in a non-international armed conflict [2016
icrc Commentary gci, para. 2155]. Temporary medical personnel shall be
deemed prisoners of war upon capture, though they can be employed in their
medical function [art. 29 gci]. The surge in violence against medical person-
nel in their line of work has become a common feature of modern-day conflict.
Violence of this nature must never take place and organisations such as the
Medical Standards, Generally Accepted 481
International Red Cross and Red Crescent Movement are driving global initia-
tives like the Health Care in Danger project to address this concern.
Bibliography
H. Durham, P. Wynn-Pope, ‘Protecting the “Helpers”: Humanitarians and Health Care
Workers During Times of Armed Conflict’, 14 yihl (2011).
J. Pictet, ‘The Medical Profession and International Humanitarian Law’, 25(247) irrc
(1985).
Medical Standards, Generally Accepted. Medical standards are the levels of

quality that should be attained in the practice of medicine. Standards are “gen-
erally accepted” whenever their adequacy is broadly recognized. Hence, “gen-
erally accepted medical standards” refers to the levels of the quality of treat-
ment to be provided to patients in circumstances which are widely deemed
adequate.
Under ihl, generally accepted medical standards are invoked to set the
boundaries of permissible medical procedures undertaken during, and in con-
nection with, an armed conflict, with regard to persons deprived of liberty for
reasons related to the conflict [art. 11(1), (3) api; art. 5(2)(e) apii; rule 92 icrc
Customary ihl Study]. More precisely, ihl establishes that procedures aimed
at influencing the state of health of a person are permissible only when under-
taken in observance of a two-tier test, of which abidance by generally accepted
medical standards is one of the prongs.
A clarification of what exactly amounts to generally accepted medical stan-
dard is not provided for under ihl, nor is it addressed elsewhere in universal in-
struments. Due to the technical nature of the concept, such analysis belongs to
the medical sphere rather than to the legal one. It appears, however, that medi-
cal standards should not be equated to medical ethics, although frequently the
two concepts are treated as equivalent. Medical ethics (expressly referred to
in article 16(1)(2) api and article 10(1)(2) apii) are, indeed, principles based on
a sense of morality that should guide physicians in their interaction with pa-
tients, including during treatment. Instead, medical standards (or “normes med-
icales”, in the equally authentic French texts of the Protocols) “are concerned
with the actual medical procedures performed by physicians” [S. Mehring,
First Do No Harm: Medical Ethics in International Humanitarian Law (2013),
pp. 304–305].
Whereas the reference to “generally accepted” introduces an element of uni-
versality, ihl takes into account potential constraints, due to limited resources
482 Medical Transports
or other contextual factors. The obligation to act in compliance with generally

accepted medical standards is, indeed, qualified by the explanation that the
standards to be complied with are those that would be applied under similar
medical circumstances to persons not deprived of liberty (who are also nation-
als of the party conducting the procedure in case of api).
Medical procedures undertaken on persons in the power of a party other
than the one on which they depend, and carried out below the benchmark of
generally accepted medical standards, may amount to so-called “medical grave
breaches” whenever they seriously endanger the physical or mental integrity
of the person undergoing them [art. 11(4) api; see: Seriously Endangering the
Physical or Mental Health or Integrity of Protected Persons].
Maria Giovanna Pietropaolo – the views expressed are those of the author
alone and do not necessarily reflect the views of Diakonia
Bibliography
A. Baccino-Astrada, Manual on the Rights and Duties of Medical Personnel in Armed
Conflicts (1982).
M.J. Gunn, H. McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, 3 Journal
of Armed Conflict Law (1998).
icrc, Health Care in Danger – The Responsibilities of Health-Care Personnel Working
in Armed Conflicts and other Emergencies (2012).
S. Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law (2013).
Medical Transports. Transports exclusively assigned to a medical function

must be respected and protected under all circumstances, meaning they
may not be the subject of direct attack, destruction or arbitrary obstruction
or interference in their humanitarian work, either in international or non-
international armed conflicts [rule 29 icrc Customary ihl Study; art. 35 gci;
art. 21 gciv; art. 21 api; art. 11 apii].
Protection for the wounded and sick – a key principle of ihl – is further
safeguarded by the efficient and effective evacuation of those persons and the
transport of medical personnel and equipment necessary for their care [see:
Wounded and Sick]. This treaty-based obligation to protect medical trans-
ports can be traced back to early advancements in modern ihl. Article 1 of
the original 1864 Geneva Convention specified that “[a]mbulances […] shall
be recognized as neutral, and, as such, protected and respected by the bellig-
erents”. Later developments of the 1949 GCs and 1977 APs have also included
protections for medical transports in one form or another.
Medical Transports 483
The definition of “medical transports” in api is widely used in State prac-

tice and accepted as authoritative in both international and non-international
armed conflicts [rule 29 icrc Customary ihl Study]. api classifies medical
transports as “any means of transportation, whether military or civilian, per-
manent or temporary, assigned exclusively to medical transportation under
the control of a competent authority of a party to the conflict” [art. 8(g) api].
The intentional omission of an exhaustive list of modes of transportation
ensures this provision covers all forms of medical transports and vehicles. Tra-
ditionally this has included ambulances, hospital ships and medical aircraft,
but the definition also includes “automobiles, trucks, trains, motorcycles, small
all-terrain vehicles and inland boats” [2016 icrc Commentary gci, para. 2372].
The breadth of the definition also ensures that transports not yet developed or
employed, such as unmanned medical evacuation vehicles, can fall within the
scope of protection.
To qualify as “medical”, transports must be exclusive in their medical func-
tion for the period of their assignment. That is, they may not be used for a
purpose other than for the “conveyance by land, water or air of the wounded,
sick, shipwrecked, medical personnel, religious personnel, medical equipment
or medical supplies protected by the Conventions and by [api]” [art. 8(f) api].
This exclusive purpose attaches to permanent and temporary medical trans-
ports. A permanent medical function suggests that the primary purpose of
that transportation is its medical use, for instance ambulances displaying the
distinctive emblems [see: Emblem], to which the obligation to protect and
respect will extend indefinitely. Transports engaged in a temporary medical
function are only protected for so long as that function remains exclusively
medical, for instance a military vehicle assigned on a one-off basis to trans-
port wounded combatants to a mobile medical unit. This temporary function
must be distinguished from “mixed” transport missions, which do not invoke
the obligation to respect and protect on account of simultaneous military and
medical use and thus the absence of an exclusive medical function [2016 icrc
Commentary gci, para. 2380]. The second criterion used to classify transports
as “medical”, stipulates that transports must be placed under the control of a
competent authority of a belligerent party, that is, the armed forces, a National
Red Cross or Red Crescent Society or other duly recognised and authorised
voluntary aid society.
In order to emphasise the protective status of medical transports, belliger-
ent parties should make every effort to mark them with the distinctive em-
blem for the duration of their permanent or temporary assignment, though
there is no rule to this effect, nor is this practice necessary to confer protection.
484 Medical Transport Vessels
Medical transports will lose their protection if they are used outside their ex-
clusively medical function to commit acts considered “harmful to the enemy”
[see: Acts Harmful to the Enemy].
Bibliography
A. Cassese, ‘Under What Conditions May Belligerents Be Acquitted of the Crime of At-
tacking an Ambulance?’ 6(2) jicj (2008).
Medical Transport Vessels. Transport vessels by water – also referred to as

medical ships and craft – that are exclusively assigned to a medical function
and that fall within the definition of medical transports [see: Medical Trans-
ports], are protected objects under ihl and must be respected and protected
in all circumstances. This rule serves to further safeguard the treatment and
evacuation of wounded, sick, and shipwrecked members of armed forces at
sea – a key objective of gcii [see: Wounded and Sick; Shipwrecked] – by ex-
tending protections to the transport of the personnel and equipment neces-
sary for their care.
Medical ships and craft refer to any means of transportation by water [art.
8(i) api]. This includes military hospital ships [art. 22 gcii; art. 22 api; see: Hos-
pital Ships]; hospital ships utilised by National Red Cross and Red Crescent
Societies, officially recognised relief societies, or private individuals of belliger-
ent parties or of neutral countries [arts. 24–25 gcii; art. 22(2) api]; small craft
employed for coastal rescue operations [art. 27 gcii; art. 22(3) api; see: Coastal
Rescue Craft]; civilian vessels on sea “conveying wounded and sick civilians,
the infirm and maternity cases” [art. 21 gciv]; and any medical ships and craft
other than those mentioned [art. 23 api].
Each of these vessels shares the same exclusive humanitarian function,
which arises from the fact that they are “built or equipped by the Powers spe-
cially and solely with a view to assisting the wounded, sick and shipwrecked”
without any distinction [arts. 22, 30 gcii]. This permanently exclusive human-
itarian function can be interpreted in a similar vein to the exclusive function
of permanent military medical personnel [see: Medical Personnel]. It invokes
a special protection that attaches to medical ships and craft at all times, re-
gardless of whether patients on board are civilian or military, and regardless of
whether there are wounded or sick persons on board at all [arts. 24, 30 gcii].
The protection to which medical vessels are entitled will be lost if that vessel
Medical Units and Establishments 485
is used to commit, “outside their humanitarian duties”, “acts harmful to the

enemy” [see: Acts Harmful to the Enemy].
The notion of protecting hospital ships stemmed from their early recogni-
tion as neutral vessels under customary ihl [2017 icrc Commentary gcii,
para. 1930]. Today, gcii invokes an obligation on parties to respect and pro-
tect hospital ships at all times, extending not only to the explicit prohibition
of attacks against medical transport vessels, but also to ensuring they are not
harmed or impeded in their humanitarian work either at sea or ashore.
Bibliography
L. Doswald-Beck, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed
Conflicts at Sea’, 65(1) British Yearbook of International Law (1995).
D.L. Grimord, G.W. Riggs, ‘The Unique and Protected Status of Hospital Ships under
the Law of Armed Conflict’, in R.B. Jaques (ed.), Issues in International Law and
Military Operations (2006).
Medical Units and Establishments. It is a serious violation of ihl to intention-

ally direct attacks against places where the sick and wounded are collected.
As is the case with medical personnel [see: Medical Personnel], transports
[see: Medical Transports], equipment [see: Medical Equipment] and sup-
plies, the protections extended to medical units and establishments under
ihl fundamentally exist to ensure that the wounded and sick can be respected
and protected at all times – a core objective of gci [see: Wounded and Sick].
This rule is a norm of customary ihl applicable in both international and
non-international armed conflicts [rule 28 icrc Customary ihl Study]. It has
also been enshrined in international criminal law [art. 8(2)(b)(ix), 8(2)(e)(iv)
icc Statute].
The obligation to respect and protect medical units and establishments
was first prescribed in the 1864 Geneva Convention, which stipulated, in Ar-
ticle 1, that “military hospitals shall be recognized as neutral, and as such,
protected and respected by the belligerents as long as they accommodate
wounded and sick”. Since then, the protection of medical units and estab-
lishments has been expanded so that the obligation is no longer conditional
on the presence of the wounded and sick within them. Today, protection at-
taches to all medical units, which are defined as “establishments and other
units, whether military or civilian, organised for medical purposes, namely the
486 Medical Units and Establishments
search for, collection, transportation, diagnosis or treatment – including first-

aid treatment – of the wounded, sick and shipwrecked, or for the prevention
of disease” [art. 8(e) api]. This definition builds upon Article 19 gci and Article
18 gciv.
The term “medical purposes”, which is stipulated in api and corresponds
with the function of medical personnel prescribed in Article 24 gci, covers a
broad ambit of activities, including evacuating the wounded, triage, surgery,
psychological care, vaccinations, storing medicines or surgical instruments,
and providing training with regard to communicable diseases [2016 icrc
Commentary gci, paras. 1777–1782]. Consequently, the categories of medi-
cal units are also broad. They include hospitals and other similar units, blood
transfusion centres, preventative medicine centres and institutes, medical de-
pots, and the medical and pharmaceutical stores of such units [art. 8(e) api].
These units may be fixed or mobile, permanent or temporary – that is, either a
securely positioned, immovable building or a non-fixed, mobile structure such
as a demountable field hospital [art. 8(e) api] – but they must be exclusively
assigned to a medical function, either for an indeterminate period or for lim-
ited periods during the whole of such periods [art. 8(k) api].
The scope of this protection extends to both military medical units and
civilian medical units. To be classified as civilian, the unit must belong to a
party to the conflict or be recognised and authorised by a competent author-
ity of one of the parties [art. 12(2) api], or be made available to a party for
humanitarian purposes by a neutral State, or a recognised and authorised aid
society of such a State, or an impartial international humanitarian organisa-
tion [art. 9(2) api], or by the National Red Cross or Red Crescent Society of a
neutral State [art. 27 gci]. Medical units that are not authorised do not lose
their protected status, in accordance with the rules protecting civilian objects
[see: Civilian Objects], but they will be prohibited from displaying the distinc-
tive emblems [see: Emblem].
This obligation to respect and protect not only includes an explicit pro-
hibition on attacking medical units – either directly or as a consequence of
indiscriminate attacks [see: Indiscriminate Attacks] or attacks causing exces-
sive incidental damage [see: Proportionality] – but also includes interfering
with their function, intentionally destroying or plundering medical units, and
seizing a medical unit for the purpose of storing weapons, establishing a mili-
tary command, launching military operations or any other military purpose
[2016 icrc Commentary gci, paras. 1799–1800]. Temporary use of a medical
unit by armed forces for “legitimate purposes based on military necessity”,
such as the interrogation or detention of wounded or sick military personnel
would not likely contravene the obligation to respect and protect [2016 icrc
Mercenaries 487
Commentary gci, para. 1801]. In further fulfilling this obligation, parties ought
to take measures to ensure their medical units are situated at a safe distance
from military objectives so that an attack on such objectives would not imperil
their safety [art. 19 gci; art. 18 gciv; art. 12(4) api; see: Precautions, Passive].
Under no circumstances are medical units to be used to shield legitimate mili-
tary objectives from attack [art. 12(4) api].
The special protection to which medical units and establishments are en-
titled will cease if they are used to commit, “outside their humanitarian duties”,
“acts harmful to the enemy” [see: Acts Harmful to the Enemy].
Bibliography
icrc, Health Care in Danger Project.
Mercenaries. Mercenaries have existed for a long time. However, their regula-
tion under international law is rather recent, since it arose during the second
half of the twentieth century. With legal regulation, the term mercenary ac-
quired a precise meaning under international law, although the label continues
to be used in a more generic sense with regard to individuals who do not satisfy
the legal definition.
Article 47 api provides a narrow definition of mercenary that is based on
six cumulative conditions focusing on mercenaries’ foreign character and their
motivation, namely the “desire for private gain”. In addition, mercenaries must
take direct part in hostilities [see: Direct Participation in Hostilities], as op-
posed to only being recruited for that purpose.
The consequences attached to being a mercenary relate to their status un-
der ihl. Mercenaries “shall not have a right to be a combatant or prisoner of
war”, which, in turn, renders them liable to prosecution for mere participation
in hostilities and acts that would be lawful if performed by combatants [see:
Combatants; Prisoners of War]. However, States are not obliged to deny com-
batant or prisoner of war status to mercenaries [1987 icrc Commentary api, p.
575]. As there is no prisoner of war status in non-international armed conflict,
there is no corresponding rule for mercenaries in apii. For the same reason,
the customary ihl rule on mercenaries only applies in international armed
conflicts [rule 108 icrc Customary ihl Study]. Article 47 api on mercenar-
ies was included at the behest of the newly independent African States and
socialist States [K. Fallah, ‘Corporate Actors: The Legal Status of Mercenaries
in Armed Conflict’, 88(863) irrc (2006), p. 605].
488 Mercenaries
Furthermore, in seeking to protect State sovereignty and the right to self-

determination, these States not only sought to condemn mercenaries, but also
mercenarism more generally, through the adoption of specific international
conventions [H.-Y. Liu, Law’s Impunity. Responsibility and the Modern Private
Military Company (2015), p. 147]. Thus, under the 1977 Organisation of African
Unity Convention for the Elimination of Mercenarism in Africa (oau Conven-
tion) and the 1989 International Convention against the Recruitment, Use,
Financing and Training of Mercenaries (1989 Convention), being a mercenary,
performing criminal acts while being a mercenary, as well as participating in
mercenary activity in other broad forms of affiliation are criminalized [art. 1(2)
oau Convention; arts. 2–3 1989 Convention]. In addition to criminalization,
the oau Convention seems to be stricter in respect of the loss of status for mer-
cenaries. According to Article 3, mercenaries “shall not enjoy the status of com-
batants and shall not be entitled to the prisoners of war status”. By contrast, the
1989 Convention includes a non-prejudice clause for ihl, including the status
of combatants and prisoners of war [art. 16 1989 Convention].
The mercenary specific conventions are not widely ratified and prosecutions
for the crime of mercenarism remain rare [Fallah, p. 611]. Drawing on the oau
and the 1989 Convention, the UN Working Group on the Use of Mercenaries
stated in 2012 that, “[d]espite these indications of disapproval of private actors
participating in hostilities, there is no clear international legal norm prohibit-
ing such activities” [Working Group on the Use of Mercenaries as a Means of
Violating Human Rights and Impeding the Exercise of the Right of Peoples to
Self-Determination, Submission A/HRC/WG.10/2/CRP.1 (2012), para. 11].
Despite their different aims, the oau Convention and the 1989 Conven-
tion reflect all the conditions enshrined in Article 47 api, with some minor
modifications. First, the 1989 Convention does not require mercenaries to
actually directly participate in hostilities, since mere recruitment for the
purpose of fighting is sufficient [art. 1 1989 Convention]. Second, the oau
Convention, while retaining the key element of private gain, only requires
“material compensation” [art. 1(c) oau Convention] and not “material com-
pensation substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces” [art. 47(2)(c) api; art. 1(b)
1989 Convention]. Furthermore, the 1989 Convention broadens the notion of
mercenaries to include individuals who are recruited for the purpose of over-
throwing a government, or undermining the territorial integrity of a State,
while maintaining the other conditions, namely the key element of private
gain and the foreign character of mercenaries [art. 1(2) 1989 Convention].
As such, as with the other definitions of mercenary, its scope remains very
narrow.
Merchant Vessels 489
There is widespread agreement that, notwithstanding their small differenc-

es, the definitions of mercenary are so narrow that it is virtually impossible to
qualify an individual as such [S. Percy, ‘Mercenaries: Strong Norm, Weak Law’,
61(2) International Organization (2007), p. 367; Liu, pp. 151, 182]. Thus, private
military and security contractors, while colloquially often described as modern
mercenaries, notably to express disapproval, usually do not fulfil the defini-
tional conditions [Working Group (2010), para. 38; see: Private Military and
Security Companies]. Similarly, so-called foreign fighters, i.e. individuals who
join insurgencies abroad, are not mercenaries, mainly due to the difference in
motivation [see: Foreign Fighters].
Bibliography
S. Chesterman, C. Lehnardt (eds.), From Mercenaries to Market. The Rise and Regula-
tion of Private Military Companies (2007).
K. Fallah, ‘Corporate Actors: The Legal Status of Mercenaries in Armed Conflict’,
88(863) irrc (2006).
H.-Y. Liu, Law’s Impunity. Responsibility and the Modern Private Military Company
(2015).
S. Percy, ‘Mercenaries: Strong Norm, Weak Law’, 61(2) International Organization
(2007).
Working Group on the Use of Mercenaries as a Means of Violating Human Rights and
Impeding the Exercise of the Right of Peoples to Self-Determination, Submission
A/HRC/WG.10/2/CRP.1 (2012).
Working Group on the Use of Mercenaries as a Means of Violating Human Rights
and Impeding the Exercise of the Right of Peoples to Self-Determination, Report
A/HRC/15/25 (2010).
Merchant Vessels. There is no universally accepted definition of merchant ves-

sels under international law. Nevertheless, a possible definition can be inferred
from the definitions of other types of ships under ihl. Accordingly, a merchant
vessel is a ship exclusively employed for commercial or fishery purposes or for
commercial transportation of passengers [e.g. art. 13(i) San Remo Manual].
A first attempt to codify the status of merchant vessels was made in 1907,
with the adoption of the Hague Convention (vi) relating to the Status of En-
emy Merchant Ships at the Outbreak of Hostilities [arts. 1–5 Hague Convention
vi] and the Hague Convention (vii) concerning the Situation of Merchant Ves-
sels Converted into Warships [arts. 1–6 Hague Convention vii].
490 Merchant Vessels
gcii, on the other hand, does not refer to neutral or enemy merchant ships,
but to merchant vessels that are transformed into hospitals and, accordingly,
cannot be devoted to any other use throughout the duration of the hostili-
ties [art. 33 gcii; see: Hospital Ships]. The rationale of this prohibition is “to
prevent a merchant vessel from assuming the status of a hospital ship to cross
a danger zone or break through a blockade [without being captured], and
then transforming back to its original purpose to resume its original course in
complete safety” [2017 icrc Commentary gcii, para. 2338]. It follows that, al-
though Article 33 gcii “seems to apply equally to enemy and neutral merchant
vessels”, it only refers to enemy vessels, as neutral merchant ships may only
be captured under certain conditions [art. 146 San Remo Manual] and, con-
sequently, no risk of abuse really exists in this case [2017 icrc Commentary
gcii, para. 2346].
In this regard, the 1994 San Remo Manual draws a clear distinction between
the applicable law for enemy merchant vessels and neutral merchant vessels
[arts. 59–61, 67–69 San Remo Manual].
In particular, an enemy vessel may only be attacked if its activities render
it a military objective by: engaging in belligerent acts on behalf of the ene-
my; acting as an auxiliary to the enemy armed forces; being incorporated into
or assisting the enemy’s intelligence system; sailing under convoy of enemy
warships; refusing an order to stop; resisting visit, search or capture by war-
ships outside neutral waters; being armed to an extent that damage could be
inflicted on a warship; or otherwise making an effective contribution to the
military action [arts. 59–60 San Remo Manual]. Furthermore, subject to the
provisions of article 136, and without prior visit and search, an enemy vessel
may be captured and its goods may be requisitioned and confiscated by bel-
ligerent warships even when such goods are not contraband [art. 135 San Remo
Manual].
Neutral merchant vessels may also constitute military objectives and be
attacked or requisitioned by belligerent warships under certain conditions,
namely when they: are believed on reasonable grounds to be carrying contra-
band or breaching a blockade and, after prior warning, they intentionally and
clearly refuse to stop, or intentionally and clearly resist visit, search or capture;
engage in belligerent acts on behalf of the enemy; act as auxiliaries to the en-
emy armed forces; sail in a convoy with enemy warships; are incorporated into
or assist the enemy’s intelligence system; otherwise make an effective contri-
bution to the enemy military action or engage in any other activities which
may render them military objectives [art. 67 San Remo Manual; see: Military
Objectives]. In addition to the above circumstances, neutral merchant vessels
are subject to capture when it is determined that the conditions described in
Military Commissions 491
Article 146 San Remo Manual are satisfied. Their goods may, however, be con-
fiscated only if they are contraband.
During an international armed conflict at sea, belligerent warships are
entitled to visit and search merchant vessels outside neutral waters, where
there are reasonable grounds for suspecting that they are subject to cap-
ture [art. 118 San Remo Manual]. Neutral merchant vessels may, however, be
exempt from the exercise of the right of visit and search if they accept to
be diverted from their declared destination, or if the conditions set forth in
Article 120 San Remo Manual are met [arts. 119–120 San Remo Manual]. Fur-
thermore, merchant vessels may be captured if they are believed on reason-
able grounds to be breaching a blockade and they may also be attacked if, after
prior warning, they clearly resist such capture [art. 98 San Remo Manual; see:
Blockade].
Jacopo Terrosi – the views expressed are those of the author alone and do not
Bibliography
L. Doswald-Beck, San Remo Manual on International Law Applicable to Armed Con-
flicts at Sea (2005), pp. 187–189.
W. Heintschel von Heinegg, ‘The Law of Armed Conflict at Sea’, in D. Fleck (ed.),
The Handbook of International Humanitarian Law (2008), pp. 479–480, 499–513.
N. Ronzitti, Diritto Internazionale dei Conflitti Armati (2014), pp. 250.
Methods of Warfare; see: Hostilities, Conduct of
Military Commissions. A military commission is a particular type of military

tribunal, a general term that describes military proceedings of a judicial na-
ture. Military commissions are distinct from courts martial, which try offences
committed by members of the armed forces against a State’s military criminal
code. Courts martial are governed by strict rules of procedure and evidence.
Military commissions, by contrast, are wartime tribunals that try captured en-
emies for violations of the laws and customs of war. Since military commis-
sions are designed to dispense justice in a utilitarian fashion, in the field of war,
they are governed by simple, less exacting rules of procedure and evidentiary
standards.
The most prominent example of the use of military commissions is by the
U.S. Military commissions began as a disciplinary tribunal for Union soldiers.
This usage significantly expanded during the Civil War to allow the prosecu-
tion of enemy law-of-war violators, both civilians and combatants. Military
492 Military Commissions
commissions were widely used in the aftermath of World War ii, conducted
under Control Council Law No. 10 by the Allied States. The subject matter
was restricted to violations of the laws and customs of war and the personal
jurisdiction was limited to enemy fighters. The use of military commissions
became widely accepted at that time. Following the terrorist attacks of 11
September 2001, the U.S. resorted to the use of military commissions to try
Al Qaeda members and their associates. These military commissions were
set up “to try alien unlawful enemy combatants engaged in hostilities against
the United States for violations of the law of war and other offenses triable by
military commission” [para. 948b(a) Military Commissions Act (mca) of 2006;
see: Combatants].
1. Fair Trial Rights

ihl requires fair trial standards to be applied to all types of courts, includ-
ing military commissions. In situations of non-international armed conflict,
Common Article 3 GCs requires “a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized people”.
The Supreme Court of the United States has determined that this rule governs
military commissions [Judgment, Hamdan v. Rumsfeld, U.S. Supreme Court;
see: Fair Trial].
While neither ihl nor ihrl prohibit the use of military commissions, there
are often problems in the application of fair trial rights in these types of pro-
ceedings. Some of the fair trial rights that are put under particular strain by the
use of military commissions are the following: (i) independence and impartial-
ity, since military commissions are set up within the military system, which is
itself controlled by the executive organ; and (ii) the admission of evidence by
coercion or hearsay evidence and restrictions on access to evidence and law-
yers (equality of arms). Indeed, the use of military commissions often entails
a disproportionate aggregation of resources between the prosecution and the
defence, as shown by the practice of the U.S. in prosecuting individuals under
the 2006 mca.
2. Use of Military Commissions for Trying Civilians

While military commissions are normally used to try military personnel, ihl
does not completely preclude the use of military courts to try civilians during
armed conflict, so long as the court is independent and impartial and abides
by fair trial guarantees. However, there is increasingly a trend to limit, if not
exclude, the criminal jurisdiction of military tribunals over civilians. The Draft
Principles Governing the Administration of Justice through Military Tribunals
state that: “[m]ilitary courts should, in principle, have no jurisdiction to try
Military Commissions 493
civilians. In all circumstances, the State shall ensure that civilians accused of
a criminal offence of any nature are tried by civilian courts” [Commission on
Human Rights, Report of the Special Rapporteur of the Sub-Commission on
the Promotion and Protection of Human Rights – Emmanuel Decaux, paras.
20–21].
3. Military Commissions Practice Post 9/11

Following the 11 September 2001 terrorist attacks in the U.S., the then President
George W. Bush issued a Military Order that established military commissions
for the purpose of bringing Al Qaeda members and their associates to justice
[U.S. President, Military Order: Detention, Treatment, and Trial of Certain
Non-Citizens in the War against Terrorism (2001)]. However, the U.S. Supreme
Court found that the President was not authorised to establish military com-
missions; that Common Article 3 GCs applied to the armed conflict between
the United States and Al Qaeda; and that the procedures of the military com-
missions violated provisions of the Uniform Code of Military Justice and the
GCs [Judgment, Hamdan v. Rumsfeld, U.S. Supreme Court]. The US Congress
responded by passing the 2006 mca, which authorised military commissions
and stated that the procedures were in compliance with Common Article 3
GCs’ requirements of “regularly constituted courts”.
The Manual for Military Commissions of 19 January 2007, which set out
guidelines for trials by military commissions at Guantánamo Bay, Cuba and
other detention sites, guaranteed some fair trial rights, but still raised ma-
jor concerns, in particular, with respect to evidence adduced by torture or
ill-treatment. In 2008, the US Supreme Court held that the 2006 mca was un-
constitutional as it restricted detainees’ use of habeas corpus and access to the
federal courts [Judgment, Boumediene v. Bush, U.S. Supreme Court].
The Obama administration sought to improve the fair trial aspects of mili-
tary commissions, and the Congress in October 2009 enacted the Military
Commissions Act (2009 mca). The 2009 mca grants jurisdiction over “unprivi-
leged enemy belligerents” (rather than “unlawful enemy belligerents”). Unlike
its predecessor, the 2009 mca does not bar invocation of rights under the GCs
(except for private rights of action). There are some improvements in terms of
fair trial rights, such as the process for handling classified information. Howev-
er, a number of problematic areas remain, including the lack of a timeline for
notifying the defendant of charges against him, a presumption of admissibility
of hearsay evidence, and the possibility to convict for ex post facto crimes, such
as “material support for terrorism”, which did not exist at the time the conduct
occurred or crimes that are not part of the laws and customs of war such as
“conspiracy”.
494 Military Manuals
Although the Obama administration initially agreed to start allowing civil-

ian federal courts to try terrorist suspects who had been detained in Guan-
tanamo Bay, this move was blocked by Congress, and resort was again made
to military commissions despite continued criticism of their procedural and
substantive flaws in the fair trial protections of ihl and other applicable
law.
necessarily reflect the views of the International Residual Mechanism for Crimi-
nal Tribunals or the United Nations in general
Bibliography
G.D. Solis, ‘Contemporary Law of War and Military Commissions’, in F. Ní Aoláin,
O. Gross (eds.), Guantánamo and Beyond: Exceptional Courts and Military Com-
missions in Comparative Perspective (2013).
J. Stewart, ‘The Military Commissions Act’s Inconsistency with the Geneva Conven-
tions: An Overview’, 5(1) jicj (2007), p. 26.
D. Vagts, ‘Terrorism and Military Trials’, in B. Saul (ed.), Research Handbook on Inter-
national Law and Terrorism (2014).
D.S. Weissbrodt, J.C. Hansen, ‘The Right to Fair Trial in an Extraordinary Court’, in
F. Ní Aoláin, O. Gross (eds.), Guantánamo and Beyond: Exceptional Courts and
Military Commissions in Comparative Perspective (2013).
Military Manuals. Military manuals are a guide on how to implement the

rules and regulations applicable to the military. The obligation to dissemi-
nate ihl aims at its effective application and consequently the protection of
the victims of armed conflicts. The 1949 GCs [art. 47 gci; art. 48 gcii; arts.
41, 127 gciii; arts. 99, 144 gciv], as well as the 1977 APs [arts. 80, 82–83, 87
api; art. 19 apii], contain an obligation for the parties to armed conflicts to
take appropriate measures to disseminate the text of these treaties [see:
Dissemination]. This implies that the parties’ armed forces need to be trained
as to the ihl principles and the behaviour that is expected or prohibited at
their level in the command structure [A.R. Ziegler, S. Wehrenberg, ‘Domes-
tic Implementation’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva
Conventions: A Commentary (2015), p. 654]. Military manuals constitute in-
deed a tool for the dissemination of ihl by the parties to armed conflicts.
This is the result of the commitment made in the aforementioned treaties to
respect and ensure respect for the rules they contain [Common Article 1]. To be
effective, the dissemination of ihl also has to take place in peacetime: “[j]ust
as the preparations for the military and economic aspects of a possible armed
Military Manuals 495
conflict are made in peacetime, so must the groundwork for the humanitarian
aspects, in particular respect for ihl, be laid before war breaks out”
[M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i
(2011), p. 356].
Military manuals are not only used by States, but also by non-State armed
groups [see: Armed Groups]. Despite fulfilling the same objective and includ-
ing the same types of rules, they are normally referred to as “Codes of Conduct”.
A number of these non-State entities have resorted to these tools in order to
promote “standard military behaviour at the tactical, operational, and strategic
levels”. Although they are usually aimed at leaders, military manuals may also
have a direct influence on the behaviour of all group members [O. Bangerter,
Internal Control – Codes of Conduct within Insurgent Armed Groups (2012),
p. 21]. The 2005 icrc Customary ihl Study has recognized that the obligation
to disseminate ihl is a norm of customary international law for both States
and non-State armed groups [rule 142 icrc Customary ihl Study].
Also, military manuals have served as a source to identify customary ihl.
Generally, when identifying this regime, the icrc has resorted to the elements
contained in Article 38 of the icj Statute [see: Customary International
Humanitarian Law]. Since military manuals include instructions by States
regulating their soldiers’ behaviours, they have been used in the icrc Cus-
tomary ihl Study to identify “general practice” [J-M. Henckaerts, L. Doswald-
Beck (eds.), Customary International Humanitarian Law (2005), at li-lii]. For
instance, when addressing the customary obligation of commanders to ensure
that members of the armed forces under their command are aware of their
ihl obligations, the icrc relies on the military manuals of Australia, Belgium,
Benin, Cameroon, Canada, Colombia, and Switzerland, among many others.
Certain military manuals have gone further than merely stating the applica-
ble law. The United Kingdom Manual of the Law of Armed Conflicts of 2004,
for instance, considered that the word “law” in Article 6(2) apii “could also be
wide enough to cover ‘laws’ passed by an insurgent authority” [United King-
dom Military Manual (2004), p. 404, fn. 94].
Although a significant study of States’ military manuals has been conduct-
ed, particularly through their inclusion in the 2005 Customary ihl Study, non-
State armed groups’ codes have not received enough attention. Geneva Call,
a Swiss ngo that advocates for a humanitarian engagement with these enti-
ties, has been proactively compiling these on their public website. A thorough
analysis of their content could contribute to exploring their practices with the
aim of generating respect for the law during armed conflicts.
496 Military Necessity
Bibliography
A. Bangerter, Internal Control – Codes of Conduct within Insurgent Armed Groups
(2012).
J.-M. Henckaerts, L. Doswald-Beck (eds.), Customary International Humanitarian Law,
Vol. i (2005).
E. Mikos-Skuza, ‘Dissemination of the Conventions, Including in Time of Armed Con-
flict’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Com-
mentary (2015).
A.R. Ziegler, S. Wehrenberg, ‘Domestic Implementation’, in A. Clapham, P. Gaeta,
M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).
Military Necessity. This is one of the general principles of ihl – and thus one
of the dynamic forces which drives and informs the development of the posi-
tive rules of ihl expressed in treaty and custom [see: International Humani-
tarian Law, General Principles of]. The principle of military necessity is not
inconsistent with such rules. Indeed, it acknowledges that military efficiency
can be reconciled with appropriate limits on the use of force. Military force
must always serve an extrinsic purpose; it is not an end in itself. Hence, mili-
tary necessity is more than military convenience, and parties to an armed con-
flict do not have unfettered discretion in the means and methods of war which
they adopt [art. 22 Hague Regulations; art. 35 api].
The modern conception of military necessity crystallised in sources includ-
ing the Lieber Code of 1863, the Preamble to the St. Petersburg Declaration of
1868 [see: Saint Petersburg Declaration (1868)], and the post-Second World
War jurisprudence [e.g. Judgment, List et al. (Hostages case), US Military Tri-
bunal in Nuremberg, pp. 1253–1254]. It emphasises that the object of conflict is
to compel the complete or partial submission of the enemy, and that this may
be achieved by the use of such lawful force necessary to achieve that efficiently.
The full implications of the principle are conveniently encapsulated in four
precepts: (i) military force can and must be controlled; (ii) military force may
not violate the law; (iii) military force is legitimate if it complies with the law
and is necessary to compel the submission of the enemy, as fast and economi-
cally as possible; (iv) military force is unlawful and illegitimate if it is unneces-
sary to compel the submission of the enemy [UK Ministry of Defence, Manual
of the Law of Armed Conflict, para. 2.2.1]. It follows that military necessity is
never an absolute justification for military conduct (so-called kriegsraison).
Continuing debate about military necessity – and the potential for
confusion – arises not so much from its definition, but the precise nature and
extent of its relationship (as a general principle) with the positive rules of ihl.
Military Necessity 497
Within these rules, the concept of military necessity has been ascribed a large-
ly negative function, justifying certain narrow forms of conduct which other-
wise are prohibited. Yet, a number of commentators have also urged a broader
positive function for military necessity. In short, it has been interpreted as a
specific rule which limits all military force not only to conduct which is not
legally prohibited, but also to conduct which is concretely required by military
necessity. For example, in the classic view, a combatant is liable to lawful at-
tack by the adverse party at any time, whether they are on the front lines or
a thousand miles from the theatre of conflict. But, under the broader view of
military necessity, the adverse party in this circumstance would not be entirely
free to attack the combatant, but may only do so if this would be “necessary” to
compel the submission of the enemy [e.g. N. Melzer, Targeted Killing in Inter-
national Law (2008), pp. 286–289, 297–298; see: Targeted Killing].
Notwithstanding its moral force, and possible desirability as a matter of pol-
icy, this view goes beyond the present state of the law [e.g. N. Hayashi, ‘Basic
Principles’, in R. Liivoja, T. McCormack (eds.), Routledge Handbook of the Law
of Armed Conflict (2016), pp. 91–92, 102–103; M.N. Schmitt, ‘Military Necessity
and Humanity in International Humanitarian Law: Preserving the Delicate
Balance’, 50(4) Va. J. Int’l L. (2010), pp. 834–835]. In particular, it is challenged
by the very existence of the complex web of rules regulating the conduct of
hostilities (which, in their creation, were already influenced by the principle of
military necessity) and which make no clear mention of this additional condi-
tion upon launching an attack [see: Hostilities, Conduct of]. Moreover, this
idea of military necessity would tend to condition the legality of an attack on
a relative assessment of alternative courses of conduct, ex ante, to determine
which is the more efficient (“necessary”) use of force. It is true that, in practice,
combatants will likely make such assessments as a routine matter of profes-
sionalism and pragmatism, and are legally bound to do so when there is a risk
of civilian harm or the destruction of enemy property [see: Indiscriminate
Attacks; Proportionality]. However, it is hard to say that, at present, it is gener-
ally required, as a matter of black letter law. Most certainly, attacks which are
not in this sense “necessary”, but which otherwise comply with the positive
rules of distinction and proportionality, do not attract individual responsibility
as war crimes [see: Individual Criminal Responsibility; War Crimes].
The negative function of military necessity in the existing rules of ihl, and
the elements of war crimes, is clearly and exhaustively defined. Thus, enemy
property may be destroyed or seized only if it is “imperatively demanded by the
necessities of war” [art. 23(g) Hague Regulations; arts. 53, 147 gciv; see: Prop-
erty, Destruction and Appropriation/Seizure of], and the civilian population
may be forcibly evacuated only when required by military necessity, among
498 Military Necessity
other conditions [art. 49 gciv; art. 17 apii; see: Deportation or Transfer of

Civilians]. International criminal law treaties reflect the same approach [arts.
7(1)(d), 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(e)(viii), 8(2)(e)(xii) icc Statute].
Correspondingly, in international criminal law, military necessity is a nega-
tive element: in order to establish certain war crimes, where expressly required,
the Prosecution must prove beyond reasonable doubt that military necessity
did not justify the relevant conduct [Judgement, Kordić and Čerkez, icty,
Appeals Chamber, paras. 429, 466, 495, 503]. This may be assessed by consid-
eration of factors such as the relationship between the relevant conduct and
the legitimate aims of the party to the conflict to which the actor belongs; the
actor’s knowledge and capacities; and the existence of reasonable alternatives
[N. Hayashi, ‘Requirements of Military Necessity in International Humanitar-
ian Law and International Criminal Law’, 28(1) B.U. Int’l L.J. (2010), pp. 62–101].
Military necessity must be assessed in the circumstances prevailing at the rel-
evant time, as known to the relevant actor(s). Although it seems likely that
some threshold assessment may be made of the objective “reasonableness” of
the relevant conduct [Hostages case, p. 1296; Judgment, Von Lewinski (called
Von Manstein), Annual Digest and Reports of Public International Law Cases
(1949), p. 522], judges may afford a considerable margin of appreciation in
these matters (not least due to the criminal burden and standard of proof).
Military necessity is thus not a defence, even for those limited crimes to
which it applies. Nor, a fortiori, is it a general justification or defence for war
crimes. This has long been established. Specifically, military necessity does not
“justify a violation of positive rules” of international law, whose prohibitions
“are superior to […] military necessities of the most urgent nature, except where
the [Hague] Regulations themselves specifically provide the contrary” [Hostages
case, pp. 1256, 1296 (emphasis added); see also: Von Manstein, pp. 512–513].
Military necessity must likewise be distinguished from the criminal law con-
cept of “necessity”, which is a general defence in international criminal law
provided that the unlawful conduct is the only reasonable means to avert an
imminent and greater harm [Judgement, Hadžihasanović, icty, Trial Cham-
ber, para. 53; see also: art. 31(3)(d) icc Statute]. Under the icc Statute, it is
also important to distinguish military necessity from self-defence, which in the
context of war crimes allows for certain proportionate conduct in the defence
of objects vital to a military mission [art. 31(3)(c) icc Statute].
Finally, military necessity in international criminal law should also be dis-
tinguished from the concept of military objective [see: Military Objectives].
Whereas these two concepts contain some similar assessments (especially
considerations of military advantage), and both operate as negative elements
of war crimes, they operate with different scope [see Hayashi (2016), p. 92].
Military Objectives 499
In particular, military necessity entails an overall assessment of an actor’s be-

haviour, rather than merely the character of the object of attack, and is thus a
more demanding standard. Consequently, it may be technically possible for
enemy property to be lawfully targeted (i.e. the property is a military objec-
tive [art. 8(2)(b)(ii) icc Statute]) but, nonetheless, still potentially to result in
a war crime, if it is destroyed and the destruction is not militarily necessary
[e.g. art. 8(2)(b)(xiii) icc Statute; see Judgment, Brđanin, icty, Appeals Cham-
ber, paras. 337, 341; Judgment, Karadžić, icty, Trial Chamber, para. 533]. Such
conceptual distinctions may become significant in further defining attacks on
cultural property, both under the icc Statute [art. 8(2)(b)(ix), 8(2)(e)(iv) icc
Statute; Judgment and Sentence, Al Mahdi, icc, Trial Chamber viii, paras. 11,
13, 39] and customary international law [art. 27 Hague Regulations; arts. 53,
85(4)(d) api; art. 4(2) Hague Convention for the Protection of Cultural Prop-
erty in the Event of Armed Conflict; Judgment, Strugar, icty, Trial Chamber,
paras. 309–310; see: Attacks against Historic Monuments, Works of Art and
Places of Worship].
Bibliography
N. Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law
and International Criminal Law’, 28(1) B.U. Int’l L.J. (2010).
N. Hayashi, ‘Basic Principles’, in R. Livoja, T. McCormack (eds.), Routledge Handbook
of the Law of Armed Conflict (2016), pp. 90–93, 101–103.
N. Melzer, Targeted Killing in International Law (2008), pp. 278–298.
M.N. Schmitt, ‘Military necessity and Humanity in International Humanitarian Law:
Preserving the Delicate Balance’, 50(4) Va. J. Int’l L. (2010).
G.D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2016),
pp. 276–289.
UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), pp. 21–23.
Military Objectives. Limiting the freedom of belligerents to choose and en-

gage targets is one of the ways through which ihl seeks to protect civilians and
civilian objects. Designation of military objectives as the only legitimate targets
of attack in the conduct of hostilities represents an expression of the funda-
mental principle of distinction [art. 48 api; rule 7 icrc Customary ihl Study;
see: Distinction]. While individuals, such as members of enemy’s armed forces
or civilians directly participating in hostilities are often regarded as “military
objectives” [1987 icrc Commentary api, p. 635, para. 2017; see: Combatants;
500 Military Objectives
Direct Participation in Hostilities], the most widely used definition and first
codification of the notion is enshrined in Article 52(2) api and concerns ob-
jects only.
In order to make the fundamental principle of distinction operative, ihl of-
fers a binary definition of objects: either military objectives or civilian objects.
No third category exists and only military objectives may be attacked. With
the aim of ensuring the broadest protection of civilian objects, the latter are
negatively defined as “all objects which are not military objectives” [art. 52(1)
api; see: Civilian Objects]. No list of civilian/protected objects is provided.
Contemporary ihl then offers a definition of military objectives that is based
on general criteria rather than on a list of targetable objects [art. 52(2) api; rule
8 icrc Customary ihl Study]. The decision of the drafters of api to adopt such
an approach was a clear shift from the general prohibition to attack towns,
villages, dwellings, or undefended buildings affirmed in Article 25 of the 1907
Hague Regulations. Such new vision resulted from the evolution of warfare as
well as technological developments, which meant that hostilities would in-
creasingly be conducted also in villages and urban areas.
Article 52(2) api provides for a two-pronged test with cumulative criteria
and the determination whether an object is a military objective is necessarily
context-specific.
1. An Effective Contribution to Military Action through Nature, Location,

Purpose or Use
The first element of the definition is that an object makes an effective contri-
bution to the military action of a party to the conflict through its nature, loca-
tion, purpose, or use [art. 52(2) api].
“Nature” refers to the intrinsically military character of an object. For ex-
ample, military equipment, weapons, or military bases of the adversary will be
considered to effectively contribute to its military efforts by their nature.
“Location” puts emphasis on the strategic importance of an object because
of its geographical position. For instance, a supermarket in the middle of a
battlefield may be considered as a military objective since, for instance, its
destruction may impede the adversary to hide behind it and to launch at-
tacks from this vantage point. More importantly, a number of States consider
that an area of land (e.g. a specific hill of strategic value or a mountain pass)
may constitute a military objective because of its location [J.-M. Henckaerts,
L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005),
pp. 29–32]. The importance to seize (or to impede the enemy from seizing) a
site of particular military value is also one of the reasons why location matters
[ila Study Group, The Conduct of Hostilities and International Humanitarian
Law – Challenges of 21st Century Warfare (2017), p. 8].
“Purpose” is usually considered as referring to the “intended future use” of

an object [1987 icrc Commentary api, p. 636, paras. 2020–2022]. It should be
noted that the military purpose must be deduced from an established/proven
intention by a belligerent regarding future use; not from mere assumptions,
suspicions or possibilities; otherwise the protection of civilian objects would
become mute [Y. Dinstein, ‘Legitimate Military Objectives under the Current
Jus in Bello’, 78 International Law Studies (2002), p. 148]. A typical example
would be a cruise liner, which a belligerent overtly intends to turn into a war-
ship if involved in an armed conflict [Dinstein, p. 148].
“Use” refers to the present/actual use of an object. In principle, the vast
majority of civilian objects can become military objectives, provided that a
party to the conflict actually employs them for military ends. If there is a doubt
as to the military use of an object which is “normally dedicated to civilian pur-
poses” (e.g. a school), there is a presumption that it is not used for military ends
[art. 52(3) api; see: Education].
Sometimes the same objects may be used both for military and civilian pur-
poses. These are often referred to as “dual-use objects”. For example, an airport,
a bridge, a power station, or other objects may be employed by the military, as
well as the civilian population. While such military use may well render these
objects military objectives for the purpose of Article 52(2) api, attacking them
might still be illegal under certain circumstances due to the potentially exces-
sive damage to the civilian population this would cause. The attacking party
is thus under the legal obligation to consider this aspect in its proportionality
assessment [see: Proportionality].
The contribution that the object in question offers to a party to the conflict
needs to be directly and objectively linked to its “military action” in order to be
qualified as a military objective. In other words, the generally accepted view
is that there must be a sufficient link to the “war-fighting” capabilities of the
adversary [ila Study Group, p. 15]. The U.S. gives, however, a broader meaning
to the notion of “effective contribution to military action”. It considers that this
contribution need not be “direct” or “proximate” and that effective contribu-
tion to the “war-sustaining” or “war-supporting” capability of an opposing force
is sufficient [U.S. Department of Defence, Law of War Manual (2015), para.
5.6.6.2]. This implies most notably that economic targets could be considered
as object of attacks [see: Economic Warfare]. The example often provided is
that of the destruction of raw cotton by Union forces during the American Civ-
il War because its sale funded the Confederate’s weapons supply [A.R. Thomas,
J.C. Duncan (eds.), ‘Annotated Supplement to the Commander’s Handbook on
the Law of Naval Operations’, 73 US Naval War College International Law Stud-
ies (1999), p. 403]. A contemporary example would be the attack of oil fields
even when these are not directly used to fuel the armed forces of the adversary.
502 Military Objectives
Such broad interpretation could well blur the line between military objectives
and civilian objects, and consequently render the principle of distinction inop-
erative since every civilian activity might be construed as indirectly sustaining
the war effort.
2. Total or Partial Destruction, Capture or Neutralization, in the Circumstances

Ruling at the Time, Offers a Definite Military Advantage
The second part of the definition provided in Article 52(2) api further restricts
the scope of the notion. According to this subjective element, even the objects
that make an effective contribution to the military action of a party to the
conflict might not be military objectives, unless their “total or partial destruc-
tion, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage”.
The advantage gained from engaging an object that contributes to mili-
tary action of the adversary, must be “definite”, i.e. “concrete and perceptible”
rather than “hypothetical and speculative”. It must also be military in nature.
Therefore, political or economic advantages will not count in the assessment.
As some commentators correctly note, there is a logical correlation between
the two criteria defining military objectives [M. Sassòli, A. Bouvier, A. Quin-
tin, How Does Law Protect in War?, Part i, Vol. i (2011), p. 252, note 196]. The
destruction, capture or neutralization of an object which makes an effec-
tive contribution to military action will usually also offer a definite military
advantage.
The assessment of the military advantage must be made “in the circumstanc-
es ruling at the time”. Indeed, depending on the circumstances, the destruction
of the same object may have a huge military advantage (e.g. water tank used
by enemy forces in the desert) or quite limited one (e.g. same water tank used
by enemy forces in a city). Lastly, the assessment of the military advantage is
to be made at the level of “an attack as whole”; not at the micro-level of “iso-
lated or specific parts of the attack”, nor at the macro-level of the “entire war”
[Dinstein, p. 145].
3. Legal Consequences
If an object meets the criteria provided in Article 52(2) api, it can be regarded
as a military objective. The legal consequence of this qualification is that the
object in question may be attacked, or more precisely destroyed, captured, or
neutralized totally or partially.
Total destruction is therefore not the only option. For instance, while the
prevailing view is that the partial use of a building for military purposes (e.g.
only the roof is used by the enemy) turns it into a military objective as a whole
[ila Study Group, p. 10], the partial destruction of the object – if possible, and
knowing that modern technology sometimes permits it – might be the most
appropriate course of action. Capture refers to the possibility of seizure. For in-
stance, the seizure of a building used for military purposes or of weapons and
ammunitions. Neutralization refers to a military action that denies an object
to the enemy or disables it without capturing or destroying it. For example, an
area of land may be neutralized by planting landmines on or around it [U.S.
Law of War Manual, para. 5.6.7.1]. Another example could be to divert or disori-
ent a missile.
In order for an attack on military objectives to be legal under ihl, the at-
tacker has, nonetheless, to comply with the additional principles of propor-
tionality and precaution [arts. 51(5)(b), 57 api; rules 4, 5 icrc Customary ihl
Study; see: Proportionality; Precautions, Active].
Lastly, it should be noted that some specially protected objects are exempt
from attacks or at least benefit from a more restrictive regime of targeting, even
when they are turned into military objectives. This is the case for instance of
certain cultural objects and places of worship, and, under certain circumstanc-
es, of objects indispensable to the survival of the civilian population, of the
natural environment as well as of works and installations containing danger-
ous forces [arts. 53–56 api; see: Attacks against Historic Monuments, Works
of Art and Places of Worship; Attacks against Objects Indispensable to the
Survival of the Civilian Population; Environment; Attacks against Works or
Installations Containing Dangerous Forces].
4. Assessment
Though criticized by some as too vague [R. Kolb, Jus in Bello: Le Droit Inter-
national des Conflits Armés (2009), p. 248] or, by others, as too restrictive
[W.H. Parks, ‘Air War and the Law of War’, 32 Air Force Law Review (1990),
pp. 137–144], the definition of military objectives provided in api is widely ac-
cepted as reflecting customary international law [rule 8 icrc Customary ihl
Study] and thus as binding upon all States, including the ones that are not par-
ty to api. Although the U.S. adopts a different interpretation of the term “effec-
tive contribution to military action” as noted earlier, it nevertheless accepts the
customary nature of the definition contained in Article 52(2) api [The Report
on US Practice (1997), Chapter 1.3].
Common Article 3 GCs and apii applicable to non-international armed
conflicts do not include a definition of military objectives. The drafters of apii
decided to remove a provision on military objectives similar to Article 52(2)
api. Nonetheless, the formula set out in api is generally accepted as having an
equally customary nature for non-international armed conflict [rule 8 icrc
504 Missing Persons
Customary ihl Study]. Similar definitions were reproduced in subsequent ihl

treaties applicable to non-international armed conflict [Amended Protocol
ii ccw; Second Protocol to the Hague Convention for the Protection of
Cultural Property; Protocol iii ccw]. In brief, despite criticisms and inter-
pretative controversies, the definition of military objectives, as provided in
Article 52(2) api, adequately represents the state of the law today for both
international and non-international armed conflicts. Its application, in opera-
tional practice, is however not without problems in general and in particular
in the context of new war-fighting domains, such as cyberspace [see: Cyber
Warfare].
Gloria Gaggioli, George Dvaladze – the views expressed are those of the au-
thors alone and do not necessarily reflect the views of any institution the authors
are affiliated with
Bibliography
Y. Dinstein, ‘Legitimate Military Objectives under the Current Jus in Bello’, 78 Interna-
tional Law Studies (2002).
K. Dörmann, ‘The Definition of Military Objectives’, in G.L. Beruto (ed.), The Conduct
of Hostilities – Revisiting the Law of Armed Conflict – 100 Years after the 1907 Hague
Conventions and 30 Years after the 1977 Additional Protocols – Current Problems of
A. Jachec-Neale, The Concept of Military Objectives in International Law and Target-
ing Practice (2015).
R. Kolb, ‘Military Objectives in International Humanitarian Law’, 28(3) Leiden Journal
of International Law (2015).
M. Sassòli, ‘Military Objectives’, in R. Wolfrum (ed.), Max Planck Encyclopedia of
W.A. Solf, ‘Art. 52 api’, in M. Bothe, K.J. Partsch, W.A. Solf (eds.), New Rules for Victims
of Armed Conflicts (2013).
Mines; see: Landmines
Missing Persons. In general, under international law, the definition of miss-

ing persons is the result of the combined interpretation of different funda-
mental rights enshrined in ihl and ihrl. These rights include the rights to
humane treatment, respect for family life, privacy, and life, on the one hand,
and the prohibition of torture, hostage taking, and enforced disappearances,
on the other. These sources have been the point of departure for establish-
ing rules regulating the issue of missing persons and, thus, for creating strict
Missing Persons 505
obligations upon States, defining mandates for organizations and, most im-
portantly, establishing rights for victims and their families. Furthermore, the
multiplicity of sources regulating the issue of missing persons allows for the
construction of a legal framework applicable to situations of armed conflict
(regardless of the classification), other situations of violence and even times
of peace.
In the context of ihl, the icrc defines missing people as “those who are
unaccounted for as a result of armed conflict, whether international or inter-
nal […] military or civilian; anyone whose family has no information on their
fate or whereabouts” [icrc, Missing Persons: A Hidden Tragedy (2007), p. 4].
According to the icrc, “[t]he term family and relatives must be understood in
their broadest sense, including family members and close friends, and taking
into account the cultural environment” [icrc, Report: The Missing and Their
Families (2003), p. 11].
In this respect, the right of a family to know the truth about the circum-
stances surrounding a disappearance and be informed about the fate of miss-
ing relatives is of primordial importance under both ihl and ihrl [icrc,
Advisory Service: Guiding Principles/Model Law on the Missing (2009)]. As
far as ihl is concerned, several provisions of the GCs and APs relate to this
issue and impose an obligation on each party to a conflict to take all possible
measures to elucidate the fate and whereabouts of persons reported missing
[arts. 15–17 gci; arts. 18–20 gcii; arts. 120–124 gciii; arts. 16, 26, 136–141 gciv;
arts. 32–34 api; art. 8 apii]. In particular, as thoroughly outlined by the icrc,
“parties to a conflict must search for persons reported missing and facilitate
enquiries made by family members” [icrc (2007), p. 9], so as to help them
restore contact and bring them together. Public authorities shall also take all
possible measures “to search for, recover and identify the dead and maintain
lists showing the exact locations and markings of graves, together with partic-
ulars of the dead interred therein” [icrc (2009), p. 4]. Parties to international
armed conflicts must provide information on the wounded, sick, shipwrecked,
prisoners of war, other protected persons deprived of their freedom and the
dead, as quickly as possible and without adverse distinction [icrc (2007),
p. 9]. Furthermore, “combatants and civilians subject to internment have
the right to correspond with their families and to receive relief” [arts. 71–72
GCIII; arts. 107–108 gciv; icrc (2007), p. 9; see: Deprivation of Liberty,
Treatment].
Thus, two general obligations arise out of these provisions, namely clarify-
ing the fate and whereabouts of missing persons and preventing people from
going missing. Furthermore, these obligations have become a rule of custom-
ary ihl: “[e]ach party to the conflict must take all feasible measures to account
506 Missing Persons
for persons reported missing as a result of armed conflict and must provide
their family members with any information it has on their fate” [rule 117 icrc
Customary ihl Study; see: Central Tracing Agency; National Information
Bureaux].
In practice, the aforementioned obligations entail some concrete and prac-
tical steps to be undertaken to address the issue of missing persons at different
stages, such as: (i) raising awareness among weapon bearers of their obliga-
tions under ihl, which requires establishing control through a strict chain of
command or ensuring that personal identity documents are issued (ii) estab-
lishing an adequate system of information management, which requires the
collection of accurate information and centralization of personal data in order
to compare and find a match; (iii) processing files on missing persons sought
by their families; (iv) creating mechanisms for clarifying the fate of missing
persons, which should include the mobilization of public opinion and the
media, as well as investigations and criminal procedures; (v) adopting proto-
cols on management of information on the dead and of human remains by
State authorities and armed groups responsible for handling such matters; (vi)
providing support to missing persons’ families as they face specific material,
financial, psychological and legal needs that must be addressed by the State
authorities; and (vii) respect for the dead and for local funeral rites to demon-
strate respect for the mourning process, which is essential for peace and social
order [icrc (2003), pp. 12–17].
These measures demonstrate that the regime regulating the issue of missing
persons is of a multifaceted nature. It engages different State and non-State
actors that may or may not be party to an armed conflict (for example, the
initial efforts undertaken in relation to this issue in Colombia after the peace
agreement with the farc guerrilla). It also involves humanitarian organiza-
tions or specialized agencies in the fulfilment of their mandate in the field (for
instance, the International Commission on Missing Persons helped to develop
Bosnia and Herzegovina’s institutional capacity to address the issue of miss-
ing persons by, inter alia, crafting legislation to safeguard the rights of families
and introducing systematic forensic methods). In addition, where applicable,
the obligations relating to the issue of missing persons may require the sup-
port and technical assistance of national and international organizations,
such as the icrc, oas, and nato (for example, in 2010, in Georgia, the icrc
established two coordination mechanisms for clarifying the fate of persons
who went missing as a result of the armed conflicts of the 1990s and August
2008).
However, most importantly, the interests of those directly affected, the
families, must be taken into account. They require various forms of support
Mortars 507
(economic, psychological, and psychosocial), practical assistance (the deter-

mination of the legal and administrative status of those reported missing), rec-
ognition of their suffering, and some form of justice.
Critically, some of these obligations, especially bearing upon the parties to
the conflict, are sometimes difficult to respect in light of the ongoing hostilities
and the lack of resources (especially in the case of armed groups). In fact, the
necessary resources to deal with the problem of missing persons are often not
even available in contexts not affected by armed conflict.
do not necessarily reflect the views of any institution the author is affiliated
with
Bibliography
icrc, Missing Persons: A Hidden Tragedy (2007).
icrc, Report: The Missing and Their Families (2003).
icrc, Advisory Service: Guiding Principles/Model Law on the Missing (2009).
icrc, ‘Missing Persons’, 84(848) irrc (2002).
A. Petrig, ‘Search for Missing Persons’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The
1949 Geneva Conventions. A Commentary (2015).
Mixed Criminal Tribunals; see: Hybrid or Internationalised Tribunals
Mortars. Mortars are a single-tubed form of artillery [see: Artillery], which

are used for high-angle firing of munitions (typically shells, but also grenades)
over shorter distances than cannons and howitzers. Mortars are either man-
portable or towed and are usually muzzle loaded. Since the fifteenth century,
mortars have been widely used in sieges [see: Siege] and assaults on areas
defended by high walls or other protective cover.
There is no ihl treaty dedicated to mortars. As with any weapons system,
though, their use in the conduct of hostilities is subject to the ihl rules of
distinction, precautions, and proportionality in attack [see: Distinction; Pre-
cautions, Passive; Precautions, Active; Proportionality].
Syria, for example, has suffered many instances from indiscriminate bom-
bardments. In the 2012 Report of the Independent International Commis-
sion of Inquiry on the Syrian Arab Republic established by the hrc, it was
reported that the city of Al Qusayr was subjected to indiscriminate attacks by
mortar fire between February and May of 2012. On the basis of its findings, the
Commission of Inquiry on Syria “determined that the legal threshold for an
indiscriminate attack as a violation of customary international humanitarian
508 National Criminal Tribunals
law was reached”, since “[g]overnment forces fired shells into areas inhabited
by civilians while failing to direct them at a specific military objective” [hrc,
Report of the Independent International Commission of Inquiry on the Syrian
Arab Republic (2012), para. 94].
In the icty jurisprudence, the legality of military operations by means
of mortar shelling has been assessed too. A Trial Chamber inferred from the
weapons used by the Croatian Defence Council against Stari Vitez in July 1993
(artisanal mortars, locally known as “baby bombs”) that the perpetrators of at-
tacks wanted to target the civilian population [Judgment, Blaškić, icty, Trial
Chamber, para. 512]. However, this holding was overturned on appeal and, in
addition, the Appeals Chamber noted that “[i]t need not be decided whether,
in general terms, the use of ‘baby bombs’ is illegal” [Judgment, Blaškić, icty,
Appeals Chamber, paras. 464–65]. In addition, Major-General Stanislav Galić,
commander of Bosnian Serb forces in and around Sarajevo from September
1992 to August 1994, was charged and convicted by the icty of “a coordinated
and protracted campaign of artillery and mortar shelling onto civilian areas
of Sarajevo and upon its civilian population”, which “resulted in thousands of
civilians being killed or injured” [Judgment, Galić, icty, Trial Chamber i, para.
15]. In one of these shelling incidents, criminal responsibility was founded on
a mortar shelling where the shells landed between 100 and 150 metres away
from a target that could have represented a lawful military objective [Galić,
paras. 331–45].
with
Bibliography
Amnesty International, Unlawful and Deadly Rocket and Mortar Attacks by Palestin-
ian Armed Groups During the 2014 Gaza/Israel Conflict (2015).
S. Parker, ‘Commentary on Article 2(1)’, in A. Clapham, S. Casey-Maslen, G. Giacca,
S. Parker (eds.), The Arms Trade Treaty: A Commentary (2016), para. 2.78.
Murder; see: Wilful Killing and Murder
National Criminal Tribunals. National criminal tribunals have played a sig-

nificant role in the investigation and prosecution of violations of ihl [see:
War Crimes; Grave Breaches; Serious Violations of the Laws and Customs of
War]. Domestic trials against war criminals have preceded the establishment
of the imt in Nuremberg. On 2 November 1942, the Soviet Union established
National Criminal Tribunals 509
the “Extraordinary State Commission for ascertaining and investigating crimes

perpetrated by the Germano-Fascist invaders and their accomplices, and the
damage inflicted by them on citizens, collective farms, social organisations,
State enterprises and institutions of the ussr”. The Commission’s main goal
was to record the crimes allegedly perpetrated by the German forces, as well
as to identify those responsible for such crimes and bring them to justice. The
1943 Moscow Declaration, issued by the ussr, the U.S. and the U.K, empha-
sized the role of national tribunals in prosecuting, convicting, and punishing
war criminals, by stating: “[a]t the time of granting of any armistice to any
government which may be set up in Germany, those German officers and men
and members of the Nazi party who have been responsible for or have taken a
consenting part in the above atrocities, massacres and executions will be sent
back to the countries in which their abominable deeds were done, in order
that they may be judged and punished according to the laws of these liberated
countries and of free governments which will be erected therein”.
On the basis of this Declaration, the first war crimes trial took place in Khar-
kov (Ukraine) in December 1943. This trial relied on the material collected by
the Commission. Three officials of the Kharkov Gestapo were tried before a
Soviet military court. They had been accused of gassing thousands of civilians,
committing brutal atrocities, burning villages, and exterminating women, el-
derly, and children, as well as of burning alive, torturing, and executing the
wounded and prisoners of war. The three officials were found guilty and sen-
tenced to death by hanging. The prosecution relied on the rules of war laid
down by the 1907 Hague Convention (iv) and Regulations and the 1929 Geneva
Convention [see: Hague Convention (iv) Concerning the Laws and Customs
of War on Land (1907)].
Further trials took place at the end of the war in the ussr in different cit-
ies such as Kyiv, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki, and
Nikolaev. It is still on the basis of the Moscow Declaration that the Bulgarian
People’s Court convicted eleven Bulgarians of war crimes in December 1944.
In order to prosecute war criminals in Germany, who had not been brought
before the imt, the Allied Council adopted the Control Council Law No. 10,
whose Article 2 provided the same definition of war crimes as established in
Article 6(b) of the London Charter. In the Hostage case, U.S. Military Courts
stated that war crimes in the Nuremberg Charter and in Control Council Law
No. 10 were declaratory of the existing laws and customs of war. The case con-
cerned German nationals accused of war crimes and crimes against humanity
perpetrated during World War ii.
Several national prosecutions of perpetrators of war crimes committed dur-
ing World War ii have taken place in a number of countries. Indeed, after the
510 National Criminal Tribunals
end of World War ii, breaches of the laws of war and customs of war amount-
ing to war crimes were pursued, inter alia, by national tribunals in Australia,
the United Kingdom, Canada, China, France, and Norway.
In addition, since the end of the Cold War, Eastern European countries
showed a significant interest in prosecuting and punishing alleged perpetra-
tors of war crimes supposedly taking place under the regime in the Soviet
Union. For instance, on 27 August 2004, Latvian courts convicted Mr Kononov
on the basis of a definition of war crimes pursuant to Article 68(3) of the Latvi-
an Criminal Code, which entered into force in 1993. This provision, enacted 49
years after the events concerned, provides a definition of war crimes through
a renvoi to “relevant legal conventions” of international law. Mr. Kononov,
as member of the Soviet red partisans, had taken part in a punitive military
expedition in the village of Mazie Batie against some inhabitants, suspected
of being collaborators of the Wehrmacht, in 1944. The Grand Chamber of the
ECtHR concluded that the conviction of Mr Kononov did not violate the pro-
hibition of retroactive application of criminal law under Article 7 echr, as
war crimes for which the applicant had been convicted were defined with
sufficient accessibility and foreseeability predominantly by the 1907 Hague
Convention (iv).
Maktouf and Damjanovic is one of the cases concerning war crimes tried
by a national court in Bosnia and Herzegovina. The State Court convicted and
sentenced the applicants on the basis of the 2003 domestic Criminal Code for
war crimes committed during the 1992–1995 conflict in the former Yugoslavia.
Mr. Maktouf was found guilty of war crimes for aiding and abetting the taking
of hostages. For this reason, he was sentenced to five years of imprisonment
pursuant to Article 173(1), in conjunction with Article 31 of the 2003 Criminal
Code. Mr Damjanovic was held liable of torture as a war crime committed on
2 July 1992 and sentenced to eleven years of imprisonment under Article 173(1)
of the Bosnian Criminal Code. However, the ECtHR found that their sentences
constituted a breach of Article 7 echr, since the 2003 Criminal Code imposed
heavier sentences than the provisions of the 1976 Code, which should have
been applied in the case in question.
Moreover, the icty and ictr have been referring some cases to national
courts, where the former decided not to exercise their primacy over compe-
tent national courts. While the ad hoc tribunals have prosecuted those most
responsible for violations of ihl, they have referred to national courts cases in-
volving law-ranks individuals [see: International Criminal Tribunals; Hybrid
or Internationalised Tribunals].
Triestino Mariniello – the views expressed are those of the author alone and do
National Information Bureaux 511
Bibliography
W.N. Ferdinandusse, Direct Application of International Criminal Law in National
Courts (2006).
G. Fitzpatrick, T. McCormack, N. Morris, Australia War Crimes Trials 1945–1951
(2016).
T. Mariniello, ‘The Nuremberg Clause and Beyond: The Legality Principle and Sources
of International Criminal Law in the European Court’s Jurisprudence’, 82(2) Nordic
Journal of International Law (2013).
G. Werle, F. Jessberger, Principles of International Criminal Law (2014).
National ihl Committees; see: Qualified Persons
National Information Bureaux. ihl calls for certain procedures to be followed

by belligerent States upon the outbreak of hostilities in order to ensure the
protection of the victims of armed conflicts. One of these is the establishment
of National Information Bureaux in the territories of the States involved in the
armed conflict.
The initiative of creating such a Bureau was originally taken up at the end
of the nineteenth century. The 1899 Hague Regulations stated for the first time
that States embroiled in an armed conflict are obliged to institute such Bu-
reaux on the commencement of hostilities. According to these Regulations,
the Bureaux shall be able to answer all enquiries about prisoners of war [art. 14
1899 Hague Regulations; see: Prisoners of War]. In order to achieve this goal,
States were urged to keep these Bureaux constantly updated on changes in the
prisoners’ conditions of captivity [J.-M. Henckaerts, L. Doswald-Beck, Custom-
ary International Humanitarian Law, Vol. ii (2005), p. 2814]. The rule was again
codified in the 1907 Hague Regulations [art. 14(1) 1907 Hague Regulations]. The
provisions on this subject matter were worded slightly differently, yet suggest-
ed the same meaning as those in the 1899 Regulations. A few years later, during
World War i, enquiry offices acted as the main focal points for information on
persons deprived of their liberty. The idea, therefore, proved to be of worth
[Henckaerts, Doswald-Beck, p. 2815].
This positive experience encouraged the drafters of the 1929 Convention on
Prisoners of War to reaffirm and develop further the obligation of belligerents
to open such offices once an armed conflict breaks out [1958 icrc Commen-
tary gciv, p. 523]. When World War ii erupted, it provided an opportunity to
test the effectiveness of this system. Nevertheless, a few practical deficien-
cies affecting the system had to be remedied. Accordingly, adjustments to
the provisions of the 1929 Convention were made during the drafting process
512 National Information Bureaux
of the 1949 GCs. This was particularly evident when inquiry offices received
and transmitted information concerning civilian internees during World War
ii. Although belligerents were persuaded by the icrc to do so, information
offices lacked a legal basis to operate in this particular area. This practice was
finally legally regulated in gciv [arts. 136–137, 140 gciv]. As such, the scope of
the Bureaux was officially broadened to include interned civilians [1958 icrc
Commentary gciv, p. 522; see: Internment].
Inspired by similar provisions in previous conventions, gciii and gciv
provide for the obligatory establishment of an official Information Bureau by
each party to the conflict, as well as neutral States that may have accepted
to take in members of the belligerent armies [Henckaerts, Doswald-Beck,
pp. 2814–2815]. The function of these Bureaux is to collect full information
and reply to enquiries on the identity of the detainees, on any changes in the
conditions of captivity or in their status, and on their state of health [Henry-
Dunant Institute/UNESCO, International Dimensions of Humanitarian Law
(1988), p. 174; see: Missing Persons]. Although the 1929 Convention provided
for the immediate transmission of information regarding the state of health
of prisoners of war, this was not always the case in World War ii. The Central
Agency had to approach the national Bureaux for any information it needed
with regard to the prisoners’ state of health. The 1949 GCs, therefore, laid more
emphasis on the urgent need to transmit such information in respect of seri-
ously ill or seriously injured protected persons [1960 icrc Commentary gciii,
p. 536]. Another lesson was the continuing risk of error in recording and tran-
scribing the personal details of the protected persons, which caused confusion
about their identities. In order to avoid this scenario, the GCs provided for a
long list of identity particulars to be obtained wherever possible [art. 122(4)
gciii; art. 138(1) gciv].
The organization of these Bureaux may be entrusted to the military ser-
vices, a civilian administration, or to any other entity. In some previous con-
flicts, the work was done by National Red Cross Societies. The GCs do not
state what authority will be responsible for establishing the Bureaux, leaving
this matter to the discretion of each party [1958 icrc Commentary gciv,
p. 523].
Bibliography
Henry-Dunant Institute/UNESCO, International Dimensions of Humanitarian Law
(1988), pp. 174, 193.
National Legislation 513
National Legislation. The 1949 GCs oblige States parties to adopt domestic leg-
islation to ensure an effective enforcement of their mandates by criminalizing
certain violations. Indeed, they contain a common provision establishing that
“[t]he High Contracting Parties undertake to enact any penal legislation neces-
sary to provide effective penal sanctions for persons committing, or ordering
to be committed, any of the grave breaches of the present Convention […]”
[art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv; see: Grave Breaches]. The
common legal framework of the GCs compelling contracting parties to enact
criminal provisions should enable domestic jurisdictions to investigate and
prosecute individuals suspected of having committed or ordered the commis-
sion of grave breaches. This requirement constituted a significant innovation
in international law and paved the way for enforcement provisions in future
multilateral treaties. api supplements and clarifies the GCs common provi-
sions. In particular, Article 80 api provides that “[t]he High Contracting Parties
and the Parties to the conflict shall without delay take all necessary measures
for the execution of their obligations under the Conventions and this Protocol”.
States parties have implemented the Conventions in different ways. For
instance, South Africa has incorporated all international treaty obligations
including the grave breaches provisions in api and in the GCs. South African
domestic legislation also covers the crimes falling within the jurisdiction of the
icc. In line with former Yugoslav legislation, Bosnia and Herzegovina’s crimi-
nal code presents three different articles on the definition of war crimes. Ar-
ticle 173 of the criminal code of Bosnia and Herzegovina deals with war crimes
committed against the civilian population, while Article 174 defines war crimes
committed against the wounded and sick; Article 175 provides a list of acts
amounting to war crimes if committed against prisoners of war.
The icc Statute has provided a significant contribution to the implemen-
tation of the GCs, particularly war crimes. The establishment of the icc
prompted several States to adopt national legislation on international crimes.
In Canada, the 2000 Crimes against Humanity and War Crimes Act has intro-
duced a definition of international crimes. According to this Act, “war crime”
means “an act or omission committed during an armed conflict that, at the
time and in the place of its commission, constitutes a war crime according
to customary international law or conventional international law applicable
to armed conflicts, whether or not it constitutes a contravention of the law in
force at the time and in the place of its commission” [art. 6(3)]. In Canada, a
distinct Geneva Conventions Act covers breaches of the GCs.
A number of States have decided to incorporate international crimes into
their criminal codes. For instance, the Colombian Criminal Code presents a
514 Naval Warfare
specific section, which was enacted in 2000 [arts. 135–164] dealing with viola-
tions against persons and property protected by ihl. Similarly, the Panama
Criminal Code defines offenses perpetrated against persons and property pro-
tected by ihl [arts. 434–446]. Despite Nicaragua not being a State party to the
icc, domestic legislation has incorporated the core violations of ihl and war
crimes established in Article 8 of the icc Statute in the national Criminal Code.
In other States, such as Argentina and Costa Rica, national legislations pres-
ent a definition of war crimes through a direct referral to international sources.
Indeed, in Argentina, the Law No. 26.200 implemented the definition of war
crimes by directly referring to Article 8 of the icc Statute. In Costa Rica the
national Criminal Code has been amended by a general clause penalizing war
crimes and serious violations of ihl.
In Uruguay, the Law 18.026 has introduced definitions of war crimes, which
are divided in three different categories: (i) war crimes that consist of grave
breaches of the GCs; (ii) war crimes that amount to serious violations of
the laws and customs of war; and (iii) other grave breaches of ihl stated in
api.
Triestino Mariniello – the views expressed are those of the author alone
with
Bibliography
M. Bergsmo, M. Harlem, N. Hayashi (eds.), Importing Core International Criminal Law
into National Law (2010).
National Liberation Movements; see: International Armed Conflict; Armed

Groups
National Red Cross and Red Crescent Society; see: International Red Cross
and Red Crescent Movement
Naval Warfare. Naval warfare is a general term with no specific ihl defini-
tion. As a minimum, it encompasses situations of combat at sea and other
naval operations that take place within the context of hostilities. Conse-
quently, those situations of naval warfare of direct relevance to ihl are those
in which the three pillars of the law applicable to armed conflict at sea ap-
ply de jure: ihl, prize law (the law dealing with the condemnation by prize
courts of captured merchant vessels and cargoes), and the law of neutrality
Naval Warfare 515
[see: Neutrality]. However, there are a number of particular complications at-

tendant upon understanding how this body of law applies to armed conflict at
sea – complications that do not necessarily find ready correlates or analogies
within the regulation of armed conflict ashore.
First, there are a range of general legal instruments, regimes, and customary
rules and norms applicable in the maritime context, which overlay and inform
the operation of the lex specialis of this regime. These include specific rule sets
relating, for example, to matters such as safety of life at sea, as well as the more
general oceans governance regime set out in the 1982 UN Convention on the
Law of the Sea (unclos).
Second, naval warfare, in almost every circumstance, will involve the need
to interact with neutrals to the conflict, most particularly in terms of neutral
vessels. Consequently, the law applicable to naval warfare engages heavily with
rules and norms regulating such interaction – for example, the long-standing
and well developed rule sets that relate to blockade, visit and search, treatment
of neutral merchant crews, and authorities in relation to directing neutrals in
the immediate area of naval operations [see: Blockade; Merchant Vessels].
Third, in addition to the universal concerns of humanity and the facilitation
of lawful operations, the law applicable to naval warfare is uniquely subject to
a third underpinning purposive concern: the facilitation of trade. Thus, where
the law of naval warfare may in some contexts appear anomalous when viewed
from the perspective of the two well-established fundamental purposes of ihl,
it is likely that the raison d’être may be found in the underpinning requirement
that facilitation of trade has long informed the applicable law. Indeed, the first
modern instrument in the law of naval warfare, the Paris Declaration of 1856,
dealt explicitly with such issues. One example of this unique incorporation of
trade facilitation concerns is that the regime of visit and search applies over
contraband going into the adversary belligerent’s control, but not to belliger-
ent exports.
Finally, situations of naval warfare are to be distinguished from maritime law
enforcement operations. The latter also encompasses use of force at sea, but
is governed by a separate legal regime, which is focussed upon the interaction
of unclos with a range of other instruments and customary international
law that deal with constabulary matters such as fisheries, drug trafficking, and
maritime security.
As a body of law, the modern law applicable to naval warfare could be said
to have commenced, in terms of legal instruments, with the 1856 Paris Declara-
tion (concerning blockade and privateering). It was then further codified in
the Hague Convention (iii) of 1899 (dealing with hospital ships, wounded and
516 Naval Warfare
shipwrecked), in the Hague Conventions (iv-xiii) of 1907 (relating primarily

to means and methods issues, such as the conversion of merchant ships to
warships, hospital ships, and naval mines) – even though The Hague Conven-
tion xii, establishing an international prize court, never came into force – and,
more recently, in gcii (concerning the sick, wounded and shipwrecked during
armed conflict at sea) [see: Hospital Ships; Wounded and Sick; Shipwrecked;
Merchant Vessels].
It is now widely accepted that the basic targeting rules in api also apply to
the conduct of armed conflict at sea, although Article 49(3) api specifically
notes that the attack rules “apply to all attacks from the sea or from the air
against objectives on land but do not otherwise affect the rules of international
law applicable in armed conflict at sea or in the air”. It is also of note that given
the relative paucity of recent treaty law concerning the law of naval warfare,
a soft law instrument – the 1994 San Remo Manual – is particularly influential
as a guide to the modern application of this body of law.
Other aspects of general ihl, and of international customary law, also act to
regulate armed conflict at sea, but often require a degree of contextualisation
in order to be sensibly applied. One example is that, whilst disguising a land
unit or aircraft’s nationality, by displaying a false flag, could amount to perfidy,
it is a permissible ruse of war for a warship to fly a false flag up until the com-
mencement on an engagement [art. 110 San Remo Manual; see: Perfidy; Ruses
of War; Warships].
Finally, it is important to note that whilst before 1949 there was a long
history of debate as to whether the law of war was also applicable at sea in
certain types of insurgency and civil war contexts, the precise bounds of the
applicability of modern law of naval warfare to non-international armed con-
flicts with a maritime dimension remains contested. One example of such
an issue is the extent to which modern ihl has extinguished (or not) the tra-
ditional distinctions drawn between pirates, insurgents who target only the
shipping of their adversary parent State, and the conduct of hostilities in the
maritime domain by recognised belligerents.
with
Bibliography
W. Heintschel von Heinegg, ‘The Current State of the Law of Naval Warfare: A Fresh
Look at the San Remo Manual’, 82 International Law Studies (2006).
R.W. Tucker, ‘The Law of War and Neutrality at Sea’, 50 International Law Studies
(1955).
NEUTRAL PORTS 517
Neutral Ports. Neutral States must guard wounded, sick, or shipwrecked per-
sons who are landed in their ports and take action to ensure that these persons
do not again take part in military operations [art. 17 gcii; see: Wounded and
Sick; Shipwrecked; Neutrality]. The costs occasioned by the presence of such
persons must not be borne by the neutral State, but must be reimbursed by the
power on which they depend [art. 17 gcii; 1960 icrc Commentary gcii, p. 119;
see also: 2017 icrc Commentary gcii, paras. 1614–1615]. Neutral territory may
be a place of asylum, but it must not be a place of transit on the way to battle
zones [1960 icrc Commentary gcii, p. 119].
The gcii provision on neutral ports remains ambiguous in some respects.
For example, it does not clearly state whether a person landed at the neutral
port must be interned or instead set free by the neutral State. So as not to con-
fer a benefit upon a belligerent, the gcii Commentary suggests that where
a protected person is of the same nationality as a belligerent ship, he or she
must be interned by the neutral State; whereas if the protected person who is
landed at the neutral port is an enemy of the belligerent ship, the person must
be set free. It is suggested that this is the only way to respect the principle of
impartiality. For a belligerent might instead seek to exploit the resources on
offer from the neutral State to heal, house, or protect its own soldiers and later
return them to battle [1960 icrc Commentary gcii, pp. 126–127].
Roger Phillips – the views expressed are those of the author alone and do
Cambodia
Neutral Powers. Under the GCs, the notion of “neutral power” or “neutral
State” refers to all States that are not parties to an international armed conflict.
It is therefore not limited to those States that decide to be neutral – either on
a permanent or ad hoc basis – in accordance with the law of neutrality [2016
icrc Commentary gci, paras. 916–918; see: Neutrality]. Such a meaning is
not modified by the distinction between neutral States, on the one hand, and
States not parties to a conflict, on the other hand, drawn in Article 2(c) api
[1977 icrc Commentary api, paras. 135–136]. In general, neutral States have
a number of humanitarian obligations towards the persons protected by the
GCs and api that are received on their territory. Furthermore, they may play a
role in upholding respect for and implementation of ihl by the parties to an
international armed conflict and in providing relief to protected persons [see:
Protected Persons].
Neutral States are required to apply by analogy gci-ii and relevant provi-
sions of api to those categories of persons specifically protected under these
518 Neutral Powers
treaties [art. 4 gci; art. 5 gcii; art. 19 api]. The basic duty of a neutral State is
to respect and protect such persons that are received or interned in its terri-
tory. gciii prescribes a neutral State to treat, as prisoners of war, those persons
qualifying for such status who are received on its territory and who must be
interned in accordance with the law of neutrality [art. 4(B)(2) gciii; art. 11
Hague Convention v]. While ihl does not impose similar obligations vis-à-vis
civilians or protected persons under gciv, a neutral State is bound to treat
them in accordance with relevant obligations deriving from ihrl and interna-
tional refugee law [Y. Sandoz, Rights, Powers and Obligations of Neutral Pow-
ers under the Conventions, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949
Geneva Conventions. A Commentary (2015), p. 102].
A neutral State may offer to accommodate in its territory certain types of pro-
tected persons, in particular wounded and sick prisoners of war, able-bodied
prisoners of war who have undergone a long period of captivity, children,
pregnant women, mothers with infants and young children, wounded and sick
civilians, and civilian internees who have been detained for a long time [art.
109 gciii; art. 132 gciv]. Accommodation in neutral territory is to be arranged
by way of agreement with the parties to the conflict.
Article 122 gciii obliges a neutral State that receives prisoners of war within
its territory to establish an Information Bureau [see: National Information Bu-
reaux]. gciii-iv also require neutral States to create a Central Agency entrust-
ed with the task of collecting information on prisoners of war and protected
persons, especially internees [art. 123 gciii; art. 140 gciv; see: Central Tracing
Agency]. In practice, the icrc Central Tracing Agency has taken up the tasks
envisaged for Central Agencies, so that the role of neutral States in this respect
has “practically vanished” [Sandoz, p. 106].
A neutral State has the obligation to prosecute any person who has alleg-
edly committed, or has ordered to be committed, a grave breach of the GCs or
api [see: Grave Breaches]. Alternatively, this State must hand over the alleged
perpetrators to another State, which is willing to prosecute such persons and
may prove a prima facie case against them [e.g. arts. 49–50 gci]. A neutral
State may also prosecute the alleged perpetrators of war crimes or other inter-
national crimes on the basis of universal jurisdiction.
It should finally be mentioned that neutral States may act as protecting
powers or be appointed as substitutes for protecting powers [art. 10 gci art.
10 gcii; art. 10 gciii art. 11 gciv; arts. 2(c), 5 api; see: Protecting Powers]. The
latter situation arises when a State may no longer fulfil the task of protecting
power vis-à-vis the persons protected by the GCs and api, for instance because
it becomes a party to the conflict.
Neutrality 519
Bibliography
S.C. Neff, The Rights and Duties of Neutrals: A General History (2000).
Y. Sandoz, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’,
in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Com-
mentary (2015).
Neutrality. The law of neutrality regulates the rights and duties of a neutral
State vis-à-vis the parties to an international armed conflict. Its purpose is to
provide a State with the possibility to maintain a friendly relationship with
the belligerents [see: Belligerents; Belligerency], in order to avoid more States
being drawn into an armed conflict. Customary international law and the 1907
Hague Conventions v and xiii govern neutrality in land and naval warfare.
Corresponding rules relating to air and cyber warfare may be found in other in-
struments [rules 165–175 Harvard Manual on International Law Applicable to
Air and Missile Warfare (Harvard Manual) (2009); rules 91–95 Tallinn Manual
on the International Law Applicable to Cyber Warfare (Tallinn Manual) (2013)].
The law of neutrality does not apply in non-international armed conflicts.
A neutral State has the fundamental right not to be adversely affected by
an armed conflict. Subject to the limitations imposed by the law of neutral-
ity, its relationship with the belligerents remains governed by the law of
peace, including the possibility to maintain regular commercial relations
with them (so-called courant normal). A neutral State bears two basic duties:
non-participation and impartiality. On the one hand, it must in no way provide
assistance to the belligerent States or let them employ its territory for military
purposes. On the other hand, although not obliged to treat the belligerents in
exactly the same way, it must implement impartially the conditions or restric-
tions deriving from its neutral status, and avoid any preferential commercial
treatment of one or more parties to the conflict [art. 9 Hague Convention v; art.
9 Hague Convention xiii]. It should be highlighted that by fulfilling obligations
or tasks of a humanitarian character prescribed or allowed by the GCs (e.g. act-
ing as a protecting power), a neutral State does not breach the law of neutrality.
Belligerents must respect the territory of the neutral State, including its ter-
ritorial sea and internal waters, airspace and cyberspace; they must not engage
in conduct that would violate the neutral State’s rights [art. 1 Hague Conven-
tion v; arts. 1–2 Hague Convention xiii; rules 170–171 Harvard Manual; rules
520 Neutrality
91–92 Tallinn Manual]. Neutral States are obliged to defend their neutrality by
all available means, including armed force, which in this sense is not regarded
as a hostile act [arts. 5, 10 Hague Convention v; arts. 2, 9, 24 Hague Convention
xiii]. Humanitarian assistance does not constitute interference in a conflict in
violation of neutrality. In case of necessity, the neutral State may authorise the
overflight and landing of medical aircrafts on its territory [art. 37 gci; art. 40
gcii; arts. 31, 70 api].
Belligerents are prohibited from conducting any act of hostility from a neu-
tral State’s territory. The use of the latter’s flags, emblems, uniforms, or insig-
nia is generally forbidden, and may amount to perfidy [arts. 37, 39 api; see:
Perfidy]. The transit and movement on neutral territory of troops or convoys
carrying war materials is prohibited. In naval warfare, belligerents have a right
of innocent passage through a neutral State’s territorial waters. Their warships
may remain in the ports, roadsteads, or territorial waters of a neutral State for
a maximum of twenty-four hours, unless damage or bad weather prevents de-
parture. If a war ship overstays the time period it is entitled to, the ship and
its crew may be detained [art. 2 Hague Convention v; arts. 10, 12, 14, 24 Hague
Convention xiii].
The transit of wounded and sick military personnel on neutral territory is
allowed, but the neutral State must prevent them from re-joining the hostili-
ties [art. 14 Hague Convention v; art. 15 gcii]. The neutral State has an obli-
gation to intern troops that take refuge on its territory and to withhold any
war materials and equipment [see: Internment; Italian Military Internees].
Escaped prisoners of war who arrive on neutral territory are to be set free but
may be assigned a place of residence; the same rule applies to prisoners of
war that are brought by troops taking refuge on neutral territory. The belliger-
ents and the neutral State may adopt agreements for the general internment
of prisoners of war on the latter’s territory, or for the internment of prisoners
of war that have undergone a long period of captivity. It is also possible to
accommodate on neutral territory wounded and sick prisoners of war when
such treatment might improve and accelerate their recovery or avoid a serious
threat to their health caused by captivity [arts. 11, 13 Hague Convention v; arts.
109–111 gciii].
Neutrality begins and ends according to the duration of a conflict. Certain
States, e.g. Switzerland and Austria, undertook a legal obligation of perma-
nent neutrality. In light of this commitment, they must not engage in activities
which would impede them to fulfil their corresponding duties at the outbreak
of an armed conflict, such as becoming members of military alliances requir-
ing participation in collective self-defence.
Neutralized Zones 521
It is important to note that the creation of the collective security system

under the UN Charter has had an impact on the law of neutrality. Binding
decisions of the unsc may indeed affect measures undertaken pursuant to
this legal framework. For example, the imposition of sanctions may prevent
a neutral State from acting impartially towards a belligerent State; further-
more, assistance provided to States undertaking authorised enforcement ac-
tion does not amount to a breach of the duty of non-participation. Subject to
compliance with the UN Charter, the status of ad hoc or permanent neutral-
ity remains relevant to contemporary international armed conflicts [Advisory
Opinion, Legality of the Threats or Use of Nuclear Weapons, icj, p. 89; US Law
of War Manual (2015), pp. 929–993].
States at times declare to be non-belligerent, signalling their non-participa-
tion in a conflict without being subject to the conditions imposed by the law of
neutrality. At present, customary international law does not yet acknowledge
non-belligerency as a legal status.
Bibliography
M. Bothe, ‘The Law of Neutrality’, in D. Fleck (ed.), The Handbook of International
M. Bothe, ‘Neutrality, Concept and General Rules’, in R. Wolfrum (ed.), Max Planck
Encyclopedia of Public International Law (2015).
E. Castren, The Present Law of War and Neutrality (1954).
D. Schindler, ‘Aspects Contemporains de la Neutralité’, 121 Recueil de Cours de
l’Académie de Droit International (1967).
P. Seger, ‘The Law of Neutrality’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook
of International Law in Armed Conflict (2014).
Neutralized Zones. A neutralized zone is a zone that protects certain persons

from the effects of an armed conflict by concentrating them in a specific, agreed
upon area. Neutralized zones are established “in the regions where fighting is
taking place” [art. 15 gciv], which is one of the main differences between them
and hospital and safety zones [see: Hospital and Safety Zones and Localities].
They are intended to protect both civilians (who do not take part in hostilities,
and who do not perform any work of a military character while they reside in
the zone) and wounded and sick combatants and non-combatants [see also:
Specially Protected Zones].
522 Neutralized Zones
Neutralized zones are usually set up on a temporary basis in response to

an urgent situation, compared to hospital and safety zones, which are usually
more permanent in nature [1958 icrc Commentary gciv, p. 129].
A neutralized zone is established subject to a signed, written agreement by
the parties to the conflict. However, an agreement may still be valid if it is not
in writing and signed: for example, in an emergency situation, the agreement
may be concluded verbally [1958 icrc Commentary gciv, p. 132]. Further-
more, third parties such as neutral States or humanitarian organisations may
establish separate, complementary agreements with the concerned parties to
establish neutralized zones [1958 icrc Commentary gciv, p. 131].
Given the urgency of the situation in which neutralized zones are created,
the agreement should be practical and simple [1958 icrc Commentary gciv,
p. 130]. It should include: the location of the zone; administration and supervi-
sion of the zone; supply of food to the zone; when the zone comes into opera-
tion; and the duration of the zones’ existence [art. 15 gciv].
The agreement may be negotiated directly between the parties to the con-
flict, or by a neutral State or humanitarian organization. Often, direct negotia-
tions grant faster procedures. However, especially in situations where details
(such as the size of the zone or its administration) are contentious, having a
third party involved can lead to an agreement more swiftly [1958 icrc Com-
mentary gciv, p. 130].
There were a small number of neutralized zones established prior to the
existence of the GCs. These included a section of Madrid during the Spanish
Civil War (1936), in Shanghai during the Sino-Japanese war (1937) and in Jeru-
salem at the time of the Arab-Israeli conflict of 1948. The practical experience
gained from the creation of these zones led to the adoption of Article 15 gciv
[1958 icrc Commentary gciv, p. 129]. Since the GCs entered into force, there
have been only a small number of neutralized zones created. These include the
ones set up in Dacca during the Indo-Pakistani war (1971), during Turkey’s inva-
sion of northern Cyprus (1974), in Phnom Penh during the Vietnam War (1975),
Chad (1980), and Lebanon (1983).
Some of the specificities regarding the implementation of neutralized zones
are not articulated in the GCs. First, Article 15 gciv does not indicate who is
authorized to enter into and sign an agreement regarding neutralized zones on
behalf of the parties. However, as customary international law allows organs of
belligerent parties to make agreements, it is likely that the military authorities
on the ground are able to negotiate an agreement to establish a neutralized
zone. Second, the GCs do not stipulate how the zone should be marked, and so
this should also be agreed on by the parties. Thirdly, there is nothing in the GCs
that specifies what happens to the agreement if it is violated.
New Weapons 523
According to the icrc Customary ihl Study, the establishment of neutral-

ized zones is considered to be a norm under customary international law for
both international and non-international armed conflicts. The icrc Study
provides that the notion is incorporated into many military manuals and, fur-
thermore, it is deemed an offence to attack such zones under the legislation of
a number States [rule 35 icrc Customary ihl Study].
There are also situations where the unsc or other bodies, as opposed to
the parties to the conflict have established protected zones. The language used
to describe these areas may be far broader than that used in the GCs, and
includes: safe areas, safe zones, safe havens, secure humanitarian areas, UN
protected areas, security zones, security corridors, safe corridors, and humani-
tarian corridors [see: Humanitarian Corridors]. The challenge of a neutral-
ized zone created by the unsc is that without agreement of the parties, their
respect is hard to enforce and they are difficult to protect.
Bibliography
New Weapons. A weapon is “a means of warfare used in combat operations,

including a gun, missile, bomb or other munitions, that is capable of causing
either (i) injury to, or death of, persons; or (ii) damage to, or destruction of,
objects” [hpcr Manual on International Law Applicable to Air and Missile
Warfare (2009), p. 6]. Primarily due to constant technological advances, exist-
ing types of weapons are improved and new types of weapons are developed.
The legality of these new types of weapons or munitions depends, first, on the
question whether a specific ban or restriction on its use exists and, second,
whether the designated use of that weapon complies with the restrictive rules
of ihl regarding the legality of weapons.
New weapons must be subjected to a weapons review. This is both a right
reserved to governments, as it is their responsibility. Furthermore, it is a le-
gal obligation of those States that are a party to api. Article 36 api 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”.
524 No-Fly Zone
A number of States have established weapons review mechanisms. How-

ever, many States have not, including many that are parties to api. Guidance
on how such mechanisms may be implemented has been proposed by the
icrc. New weapons must be in accordance with existing specific restrictions
in treaty law, such as the Convention on Certain Conventional Weapons and its
Protocols [see: Convention on Certain Conventional Weapons (1980)], and
with the general principles that determine their legality. The first of these gen-
eral obligations on States with regard to the legality of weapons is the prohibi-
tion of the employment of weapons that are of a nature to cause superfluous
injury or unnecessary suffering to the opposing forces [art. 35(2) api; rule 70
icrc Customary ihl Study; see: Superfluous Injury and Unnecessary Suffer-
ing]. The second important obligation concerning the legality of new types of
weapons is to respect the principle of distinction [see: Distinction].
Weapons that are inherently indiscriminate are thus prohibited. This is a
well-established rule of customary international law. In addition, applicable
rules relating to the protection of the environment play an additional role
in determining the legality of new weapons. In this regard, Article 35(3) api
prohibits the use of weapons that are intended, or may be expected, to cause
widespread, long-term, and severe damage to the natural environment [see:
Environment].
It is debatable whether the legality of new weapons may be determined di-
rectly by the customary ihl principles of weapons law. The question whether
these rules are binding on States to the effect that they are capable of banning
or restricting the use of new weapons, for example on the basis of the Martens
Clause [see: Martens Clause], is unsettled.
with
Bibliography
W.H. Boothby, Weapons and the Law of Armed Conflict (2016), pp. 342–355.
icrc, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare –
Measures to Implement Article 36 of Additional Protocol i of 1977 (2006).
W.H. Parks, ‘Conventional Weapons and Weapons Reviews’, 8 yihl (2005).
No-Fly Zone. Establishing a no-fly zone is a measure that States may take
during armed conflict to restrict the freedom of aerial navigation over their
own territory or in enemy airspace. Once it has been established, it needs to
be enforced by the State that established it. It is legal for States to close their
No-Fly Zone 525
entire airspace or parts of it during peacetime under national law, particularly

above crucial structures and military installations. Many States have done so:
one example of this is the no-fly zone that exists above the White House in
Washington in the U.S. Given the proliferation of drones for consumers and
increasing commercial use of drones, many States have established permanent
or temporary no-fly zones for drones, particularly for the purpose of ensuring
the safety for airfields [see: Drones].
As a matter of ius ad bellum [see: Ius Ad Bellum], no-fly zones may be
installed by the unsc under Chapter vii of the UN Charter, with a view to
maintaining or restoring international peace and security [art. 42 UN Charter].
An example is the no-fly zone the unsc established over Libya in 2011 [unsc
Resolution 1973 (2011)]. No-fly zones may be established with a view to restrict-
ing the enemies’ military options, but also with the purpose of protecting the
civilian population, as was done over Libya in 2011 and attempted in Syria in
2016, in order to stop the continuous and devastating bombing of the besieged
city of Aleppo [unsc Resolution 846 (2016)]. Accordingly, considerations of
ius ad bellum may impact the legality of the actions of States in relation to the
no-fly zone.
During armed conflict, no-fly zones are a legitimate method of warfare and
subject to the rules of ihl. The relevant entities must be notified of the estab-
lishment of a no-fly zone, including enemies and neutral States. This notifica-
tion may be done by issuing a Notice to Airmen (notam) and must include
information regarding the commencement, duration, location, and enforce-
ment measures of the no-fly zone [rule 109 hpcr Manual on International Law
Applicable to Air and Missile Warfare]. Establishing a no-fly zone does not jus-
tify a State shooting down any aircraft that enters the no-fly zone. Particularly,
the rules of ihl concerning the protection of civilian objects apply to civil-
ian airliners, including the obligations with regard to precautionary measures.
Declaring a kill box is illegal. Nonetheless, a rebuttable presumption of non-
innocent behaviour applies to aircrafts that enter a no-fly zone without per-
mission [M.N. Schmitt, ‘Air Law and Military Operations’, in T.D. Gill, D. Fleck
(eds.), The Handbook of the International Law of Military Operations (2015),
p. 366]. In any event, enemy military aircraft may be directly attacked during
armed conflict, regardless of the establishment of a no-fly zone [see: Military
Objectives].
The use of no-fly zones is restricted to the airspace of the State concerned
and that of the enemy. States are free to establish a no-fly zone over their
own airspace during both international and non-international armed con-
flicts, but not in the airspace of neutral States [see: Neutral Powers]. Since
the law of neutrality applies only during international armed conflict [see:
526 Non-Detectable Fragments
Neutrality], a no-fly zone is unsuitable to be used as a method of warfare in a

non-international armed conflict against a non-State actor that operates out-
side the own State. No-fly zones must be differentiated from exclusion zones,
which aim to restrict airspace in international airspace.
with
Bibliography
hpcr, Commentary to the Manual on International Law Applicable to Air and Missile
Warfare (2009), pp. 235–243.
M.N. Schmitt, ‘Air Law and Military Operations’, in Gill, T.D., Fleck, D. (eds.), The Hand-
book of the International Law of Military Operations (2015).
L. Vierucci, ‘The No-Fly Zone over Libya: Enforcement Issues’, 21 Italian Yearbook of
Non-Detectable Fragments. This term derives from the rule contained in Pro-
tocol i ccw [see: Convention on Certain Conventional Weapons (1980)].
This Protocol, one of the shortest legal instruments in ihl, states the following:
“[i]t is prohibited to use any weapon the primary effect of which is to injure by
fragments which in the human body escape detection by x-rays”.
The Protocol bans any weapon using non-detectable fragments as its prima-
ry incapacitating mechanism. Such weapons have not been commonly seen in
modern armed conflicts. Examples of such munitions include those that em-
ploy plastic, glass, concrete, or similar substances in their primary fragmenta-
tion. Weapons that may incidentally produce such fragments (for example, that
may be caused by some non-metallic component parts, such as in fusing or cer-
tain outer casings) are generally considered as not captured by the definition.
The definition was the result of discussions in the 1970s on certain anti-
personnel fragmentation weapons and concerns that they might be indis-
criminate in their effects or cause unnecessary suffering, specifically cluster
warheads and bomblets [icrc, Conference of Government Experts on the Use
of Certain Conventional Weapons (1974), pp. 53–54]. At the time, views were
split on proposals to prohibit the use of anti-personnel cluster warheads and
weapons with pre-fragmented irregularly shaped elements, but a prohibition
on non-detectable fragments gained wide support and was later proposed and
adopted as Protocol i ccw.
The icc Statute was amended in 2017 to include the following war crime
in international and non-international armed conflict: “[e]mploying weapons
Non-Discrimination 527
the primary effect of which is to injure by fragments which in the human body
escape detection by X-rays” [art. (8)(2)(b)(xxviii), 8(2)(e)(xvii) icc Statute].
Bibliography
W.H. Boothby, Weapons and the Law of Armed Conflict (2016).
icrc, Weapons that may Cause Unnecessary Suffering or Have Indiscriminate Effects:
Report on the Work of Experts (1973).
Non-Discrimination. Non-discrimination is at the core of the creation and

existence of the icrc, as well as of the drafting of the 1864 Geneva Conven-
tion. While neutrality underpins this Convention as a whole, Article 6 specifi-
cally prohibits discrimination against the wounded and sick [see: Wounded
and Sick]. The 1949 GCs built on the core humanitarian principle of neutrality
and expanded the concept of non-discrimination such that parties to conflicts
must satisfy their humanitarian obligations without any adverse distinction on
grounds such as nationality, sex, and race.
A general prohibition on discrimination is found, in relation to interna-
tional armed conflicts, in all four 1949 GCs and api [art. 12 gci; art. 12 gcii;
art. 16 gciii; arts. 13, 27 gciv; arts. 9(1), 75(1) api], whereas, in relation to
non-international armed conflicts, it is found in Common Article 3 GCs and
apii [arts. 2(1), 4(1), 18 (2) apii]. The icrc Customary ihl Study identifies a
general rule prohibiting adverse distinction, as well as more specific obliga-
tions in relation to medical care of the wounded and sick and for the evacua-
tion of the dead [rules 88, 110, 112 icrc Customary ihl Study].
The principle of non-discrimination is central to other branches of public
international law as well, particularly ihrl. The right to equality and non-
discrimination in ihrl has been recognised since the udhr. Most interna-
tional and regional human rights instruments include it as a foundational prin-
ciple [e.g. art. 2 udhr; art. 26 iccpr; art. 14 echr; art. 24 achr; art. 2 crc]. It
is also at the core of two specific UN human rights treaties: the International
Convention on the Elimination of All Forms of Racial Discrimination (cerd),
which was adopted in 1965 to prohibit discrimination on the grounds of race,
and the Convention on the Elimination of All Forms of Discrimination against
Women (cedaw), which was endorsed in 1979 to proscribe discrimination on
the grounds of gender. The principle of non-discrimination thus applies both
in ihl and ihrl and, in this manner, narrows the gap between these fields of
law [see: International Human Rights Law].
528 Non-International Armed Conflict
Failure to uphold the principle of non-discrimination does not constitute in

itself a crime, but it can be an essential element for the commission of certain
war crimes, such as apartheid or other inhuman and degrading practices in-
volving outrages upon personal dignity [art. 85(4)(c) api; see: Apartheid; Out-
rage upon Personal Dignity]. More broadly, it is also relevant for the crimes
against humanity of persecution [art. 5(h) icty Statute; art. 3(h) ictr Statute;
art. 7(1)(h), 7(2)(g) icc Statute] and apartheid [art. 7(1)(j), 7(2)(h) icc Statute].
The crime of genocide is the ultimate crime based on discrimination, as, to
amount to an act of genocide, the intent to destroy, in whole or in part, a na-
tional, ethnical, racial, or religious group is required [art. 4 icty Statute; art. 2
ictr Statute; art. 6 icc Statute].
Bibliography
R. Gabor, R.J. McGuire, ‘The Principle of Non-Discrimination’, in A. Clapham, P. Gaeta,
M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).
J. Pejić, ‘Non-discrimination and Armed Conflict’, 83(841) irrc (2001).
Non-International Armed Conflict. The application of ihl is dependent on

the existence of an international or non-international armed conflict [see:
International Armed Conflict]. As famously held by the icty Appeals Cham-
ber, “[w]hat is inhumane, and consequently proscribed, in international wars,
cannot but be inhumane and inadmissible in civil strife” [Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals
Chamber, para. 119]. This ruling paved the way for a broader extension of ihl
to non-international armed conflicts, resulting in a situation where the major-
ity of the rules of customary ihl are considered to be applicable during both
types of armed conflict [see: Customary International Humanitarian Law].
As a result, calls have been made to remove the traditional dichotomy be-
tween the two types of armed conflicts. However, since not all rules are ap-
plicable to both types of conflict and differences persist in the criminalisation
of conduct in each type, it remains essential to determine whether a situa-
tion of armed violence constitutes an international armed conflict or a
non-international armed conflict. Furthermore, in order to determine wheth-
er ihl is applicable or a situation is governed by domestic and/or ihrl rules
related to law enforcement [see: International Human Rights Law; Law
Enforcement], it is also crucial to consider whether a situation consists of
Non-International Armed Conflict 529
mere internal disturbances or riots, to which ihl does not apply, or rises to the
level of a non-international armed conflict.
1. Definition
Ever since ihl became applicable to internal situations of fighting, other than
after recognition of belligerency [see: Belligerency], one of the glaring gaps in
ihl concerns the question what constitutes a conflict “not of an international
character”, as set forth in Common Article 3 GCs [see: Common Article 3].
A definition of the term was purposely left out, which the icrc considered
to be positive [1952 icrc Commentary gci, para. 49]. Indeed, a strict defini-
tion formulated in 1949 would most likely not have encompassed all varieties
of armed conflicts of a non-international nature that would occur thereafter.
That is precisely what happened in 1977, when the material scope of applica-
tion of apii was defined in a rather strict manner, requiring that at least one of
the parties is a State and that the armed opposition group controls part of the
territory of this State [art. 1 apii]. In addition, apii only applies to States that
are a party to it, while the GCs are universally ratified.
The lack of definition notwithstanding, the Final Record of the Diplomatic
Conference indicates that many States understood that Common Article 3
GCs would apply at the same (rather high) threshold as the legal framework
of belligerency. Whereas it is generally agreed that ihl ought not to apply to
mere internal disturbances or riots, which are to be dealt with under domestic
law enforcement [see: Internal Disturbances and Tensions], there has been
much debate on when violence surpasses such a situation and the threshold of
a non-international armed conflict has been reached. At various moments, an
independent institute tasked to determine whether the threshold for the ap-
plication of ihl has been met in particular situations, was called for. However,
the entity generally considered to be most suitable for such classification,
namely the icrc, declined to do so during the negotiations for the 1977 APs
[see icrc, Conference of Government Experts on the Reaffirmation and De-
velopment of International Humanitarian Law Applicable in Armed Conflicts
Official: Report on the Work of the Conference (1971), paras. 195, 212–218].
The icrc Commentary to the GCs listed “convenient criteria” to guide the
application of Common Article 3 GCs in practice [1952 icrc Commentary
gci, pp. 49–50]. However, these criteria may actually mislead the application
of Common Article 3 GCs, as they were only a compilation of the suggestions
made by the delegates at the Diplomatic Conference, and in the end all re-
jected [S. Sivakumaran, ‘How to Improve upon the Faulty Regime of Internal
Armed Conflicts’, in A. Cassese (ed.), Realizing Utopia: The Future of Interna-
tional Law (2012), p. 526]. Indeed, the icty rejected the criteria as being too
stringent with regard to the organisational requirement [Judgment, Limaj

et al., icty, Trial Chamber, para. 89].
Fortunately, international courts and tribunals, mainly the icty and ictr,
which must assess in cases of alleged war crimes whether an armed conflict
existed, either for jurisdictional reasons or to identify the applicable rules, have
created voluminous case law on what qualifies as a non-international armed
conflict and when the lower threshold for such a conflict has been surpassed.
In its seminal decision on jurisdiction in Tadić, the icty Appeals Chamber
held “that an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authori-
ties and organized armed groups or between such groups within a State” [Tadić
(1995), para. 70]. icty and ictr Trial Chambers later interpreted this to mean
that the following criteria need to be fulfilled for a non-international armed
conflict to exist: (i) fighting of sufficient intensity; and (ii) a certain level of
organisation of the parties to the armed conflict [Judgment, Tadić, icty, Tri-
al Chamber (1997), para. 562; Judgment, Akayesu, ictr, Trial Chamber, para.
620]. This test makes clear that the threshold for Common Article 3 GCs is
lower than the threshold for so-called apii conflicts, which is specific to apii.
The two-pronged definition for the lower threshold of non-international
armed conflict, as included in the second part of the Tadić definition, has been
widely accepted (by States, as well as international institutions and scholars)
as reflecting customary law and as such is the most authoritative definition of
a non-international armed conflict.
Yet, in recent years, it is notable that the threshold of non-international
armed conflicts has been lowered significantly in comparison with a classic
civil war akin to a state of belligerency [see e.g. Opinion of the Court, Ham-
dan v Rumsfeld, U.S. Supreme Court, paras. 67–69; Judgment, Boškoski and
Tarčulovski, icty, Trial Chamber (2008), paras. 249, 291–292]. While States
have traditionally been reluctant to recognise the existence of an armed con-
flict within their State borders, lately they seem to have increasingly realised
that there may be benefits to recognising the existence of a non-international
armed conflict, especially when the fighting takes place elsewhere. This can
be explained by the fact that many States, as well as most scholars, consider
that the existence of an armed conflict – including non-international armed
conflicts – allows States to take more forceful action, such as the use of lethal
force against fighters and/or against those directly participating in hostilities
[see: Direct Participation in Hostilities].
2. Factors Indicating Intensity and Organisation

Following Tadić, the icty and ictr concluded that the term “protracted” refers
more to the intensity of the violence than to its duration [see e.g. Judgment,
Kordić and Čerkez, icty, Appeals Chamber, para. 341]. This approach is in line
with the IACtHR’s finding in the Juan Carlos Abella v. Argentina case, where
it considered a 30 hour battle to constitute a Common Article 3 GCs conflict.
Culminating in the Boškoski and Tarčulovski Trial Judgment, various icty Tri-
al Chambers assessed the existence of a non-international armed conflict by
reference to objective factors of intensity of the fighting and the organisation
of the armed group(s), and “indicators” thereof. This approach was confirmed
by the icty Appeals Chamber [Judgment, Boškoski and Tarčulovski, icty,
Appeals Chamber (2010), paras. 19–24]. The factors, as identified by the icty,
have since been generally accepted in scholarship and a number of them were
adopted by the icc in its first judgments [Judgment, Lubanga, icc, Trial Cham-
ber, paras. 537–538; Judgment, Katanga, icc, Trial Chamber, paras. 1172–1187],
thereby proving that they could also be used for non-international armed con-
flicts taking place in a very different context than the former Yugoslavia.
In considering the intensity requirement, the Boškoski and Tarčulovski
Trial Chamber took note of: (i) the seriousness and frequency of attacks; (ii)
whether the armed clashes had become more widespread or protracted, how
the frontlines were configured, or whether any ceasefire orders had been is-
sued; (iii) the type and number of government forces deployed; (iv) the type of
weapons used, especially whether heavy weapons and military hardware, such
as tanks, were used; (v) whether the situation had attracted the attention of
the unsc, or other involvement of international organisations; (vi) the effects
on the civilian population (such as how many civilians had fled the area, the
extent of destruction, and the number of persons killed). It also found it instru-
mental to analyse the manner in which the State treated the armed group and
under which body of law it claimed to be operating [Boškoski and Tarčulovski
(2008), paras. 177–178].
The factors and indicators for the organisational criterion can be grouped
in the following way: (i) the existence of a command structure, which would
be exemplified by having headquarters, a general staff or high command,
identifiable ranks and positions, internal regulations, the issuing of political
statements or communiqués, and the use of spokespersons; (ii) the military
(operational) capacity of the armed group, which would be shown, for exam-
ple, by the ability to define a unified military strategy, the use of military tac-
tics, the ability to carry out (large scale or coordinated) operations, the control
of territory, and having a territorial division into zones of responsibility; (iii)
the logistical capacity of the armed group, for which indicators would be that a
supply chain exists that allows the group to gain access to weapons and other
military equipment, the group’s ability to move troops around and to recruit
and train personnel; (iv) the existence of an internal disciplinary system and
the ability to implement ihl by having disciplinary rules or mechanisms in
place; (v) the group’s ability to speak with one voice, indicated, for example,
by the capacity of the leadership to act on behalf of its members in political
negotiations and to conclude cease-fire agreements [Boškoski and Tarčulovski
(2008), paras. 194–203]. It should be noted in this regard that the organisation
requirement only applies to armed groups, as State forces are assumed to be
organised.
3. icc Statute Threshold

The division between international and non-international armed conflicts is
rigidly preserved in the icc Statute [art. 8 icc Statute; Lubanga, para. 539].
The icc Statute does not include a definition in its war crimes provisions re-
lated to non-international armed conflicts. However, with respect to its provi-
sion listing “[o]ther serious violations of the laws and customs applicable in
armed conflicts not of an international character” [art. 8(2)(e) icc Statute], it
explains that this provision “applies to armed conflicts that take place in the
territory of a State when there is protracted armed conflict between govern-
mental authorities and organized armed groups or between such groups” [art.
8(2)(f) icc Statute].
Given that this wording differs slightly from the Tadić definition, which re-
fers to “protracted armed violence”, it has been suggested that the icc Statute
creates an additional threshold for non-international armed conflicts. In ad-
dition to Article 8(2)(c) icc Statute, which criminalises serious violations of
Common Article 3 GCs, a separate, higher threshold would apply to Article
8(2)(e) icc Statute, which requires the relevant non-international armed con-
flict to be protracted and is, yet, lower than the apii threshold [e.g. L. Con-
dorelli, ‘War Crimes and Internal Conflicts in the Statute of the International
Criminal Court’, in M. Politi, G. Nesi (eds.), The Rome Statute of the Interna-
tional Criminal Court (2001), pp. 107, 112–113].
However, the prevailing, and better, view is that only one threshold exists,
governing both sub-paragraphs (c) and (e) of Article 8 icc Statute [Lubanga,
para. 536; Katanga, para. 1183].
4. Temporal Scope
Whereas there has been extensive legal and academic debate, and voluminous
case law, as to when a situation of violence qualifies as a non-international
armed conflict, the debate has almost solely focused on the start of these armed
conflicts. Only recently, the end of the temporal scope of non-international
armed conflicts has been explored more in depth. In the Tadić Jurisdiction
Decision, the icty Appeals Chamber stated that, in case of non-international
armed conflicts, ihl “applies from the initiation of such armed conflicts […]
[until] a peaceful settlement is achieved. Until that moment, international hu-
manitarian law continues to apply in […] the whole territory under the control
of a party, whether or not actual combat takes place there” [Tadić (1995),
para. 70].
It has since been submitted that this finding sets a too strict standard for the
end of a non-international armed conflict. While it is clear that a temporary
lull in armed confrontations does not immediately end the non-international
armed conflict, it has been argued that such conflicts end when one of the
parties no longer fulfils the organisational criterion, or as a result of the armed
confrontations between the parties having fallen below the intensity required
for a conflict to exist in the first place (the factors as identified by the icty may
assist in determining this moment) [R. Bartels, ‘From Jus In Bello to Jus Post
Bellum: When Do Non-International Armed Conflicts End?’ in C. Stahn et al.
(eds.), Jus Post Bellum: Mapping the Normative Foundations (2014), pp. 301,
303, 309–314; M. Milanović, ‘End of Application of International Humanitarian
Law’, 96(893) irrc (2014), pp. 178–181].
However, the icrc remains more conservative and recalls that “[a]n assess-
ment based on the factual circumstances […] needs to take into account the
often fluctuating nature of conflicts to avoid prematurely concluding that a
non-international armed conflict has come to an end” [2016 icrc Commentary
gci, para. 493]. In its view, one should not be too hasty in considering that the
conflict has ended to avoid “a ‘revolving door’ classification of a conflict which
might lead to legal uncertainty and confusion” [2016 icrc Commentary gci,
para. 493]. It therefore advocates the following reading of the wording “peace-
ful settlement”, as used in Tadić: “the lasting absence of armed confrontations
between the original Parties to the conflict […], even though there might still
be minor isolated or sporadic acts of violence” [2016 icrc Commentary gci,
para. 494].
5. Geographical Scope
As a result of the so-called Global War on Terror [see: Terrorism (Interna-
tional Law)], considerable confusion and debate arose about the geographical
scope of non-international armed conflicts and the law applicable during such
conflicts, in part due to the reference in Common Article 3 GCs that these con-
flicts occur “in the territory of one of the High Contracting Parties” (emphasis
added), as well as disagreement about the impact of consent in case of hostili-
ties between an organised armed group and a State on the territory of another
State [see: Transnational Armed Conflict].
534 Non-Refoulement
6. Internationalised Non-International Armed Conflicts

When another State intervenes in a non-international armed conflict on the
side of the State, the conflict remains non-international, as no two States are
pitted against each other. However, if a State intervenes on the side of the
armed group, the conflict may internationalise as a result [see: International
Armed Conflict].
In this regard, it is important to note that when an armed group that takes
up arms against the government of its State is in fact an agent of another State,
or its actions are controlled by that other State, the ensuing conflict ought to
be classified as an international armed conflict from the very beginning. In
such a situation, the intensity threshold required for the existence of a non-
international armed conflict would thus not have to be met, as any use of force
by one State against another triggers an international armed conflict.
Bibliography
D. Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’, in
E. Wilmshurst (ed.), International Law and the Classification of Conflicts (2012).
R. Bartels, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Le-
gal Divide between International and Non-International Armed Conflicts’, 91(873)
irrc (2009).
A. Cullen, The Concept of Non-International Armed Conflict in International Humani-
tarian Law (2010).
Non-Refoulement. The duty of non-refoulement is a cardinal principle of both

international refugee law and ihrl, which prohibits sending anyone to a State
where there is a real risk for his/her life, physical integrity, and dignity. In
international refugee law, this principle is enshrined in Article 33(1) of the 1951
Convention relating to the Status of Refugees (Refugee Convention), which pro-
vides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion”. Whereas it provides an essen-
tial protection from persecution, this principle of non-refoulement is limited
in two substantial ways. First, although it also applies to asylum-seekers as de
facto refugees, it does not concern individuals who, de facto or de jure, do not
fulfil the definition of a refugee [see: Refugees]. Second, as set out in Article
Non-Refoulement 535
33(2) of the Refugee Convention, the principle is subject to two exceptions: its
benefit does not extend to refugees who pose a danger to the security of the
host country or who, having been convicted for a particularly serious crime,
constitute a danger to the host community.
The limits of the refugee law principle of non-refoulement have, however,
come to be filled by the progressive development of ihrl [see: International
Human Rights Law]. As from the 1960s onward, a human rights principle of
non-refoulement has been recognized in international human rights treaties
and by their treaty bodies. This principle, which now forms part of customary
international law, is explicitly laid down, for instance, in Article 3(1) of the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment and Article 16 of the International Convention for the Protec-
tion of All Persons against Enforced Disappearances. For those treaties silent
on any such principle, its existence has been interpreted by treaty bodies to
be concomitant to States’ positive obligations to ensure respect for the rights
enshrined in their respective treaty [e.g. hrc, General Comment No. 31 [80],
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant (2004), para. 12].
Compared to its refugee law counterpart, the principle of non-refoulement
in ihrl has a broader scope of application. First, it protects any individuals
from being sent to another country where there are substantial grounds for be-
lieving he/she would be subject to a real risk of irreparable harm [e.g. General
Comment No. 31, para. 12]. It, thus, applies to refugees but also to those falling
outside the refugee definition, because, for instance, of the absence of a link
between persecution and one of the five discriminatory grounds of the Refugee
Convention. Second, as has been affirmed by all human rights treaty bodies,
the prohibition of refoulement under ihrl is absolute. Contrary to the prin-
ciple in refugee law, it applies to any individuals, irrespective of their criminal
record or the danger they might pose to the host country and its community
[e.g. Views, Tapia Paez v. Sweden, Committee against Torture, paras. 14.4–14.5;
and Views, Aemei v. Switzerland, Committee against Torture, para. 9.8].
Similarly to the refugee status, the principle of non-refoulement in ihrl can
prohibit the sending of someone to a country where there is a real risk of in-
discriminate violence, be it in a situation of armed conflict or not [e.g. Views,
Warsame v. Canada, hrc]. However, as set out by the ECtHR, failing any rel-
evant individual circumstances, sending someone to indiscriminate violence
is only prohibited in the most extreme cases, that is when indiscriminate vio-
lence is of sufficient intensity to create “a real risk of ill-treatment simply by
virtue of an individual being exposed to such violence on return” [Judgment,
Sufi and Elmi v. the United Kingdom, ECtHR, para. 218].
536 Nuclear Weapons
In times of international armed conflict, ihl also protects protected per-

sons from being transferred “to a country where he or she may have reason
to fear persecution for his or her political opinions or religious beliefs” [art.
45 gciv]. It has also been discussed whether a broader principle of non-re-
foulement could be established on the basis of States’ positive obligation to
ensure respect of the GCs under Common Article 1 [see: Common Article 1].
Although no mention of such principle is made in the 2016 icrc Commentary
on Common Article 1 GCs, it recognizes Article 1 as a “living provision” [2016
icrc Commentary gci, para. 172]. It thus remains to be seen whether such a
principle will develop on the basis of Common Article 1 GCs and, if so, what its
added-value could be, compared to its ihrl counterpart.
Céline Bauloz – the views expressed are those of the author alone and do not
Bibliography
V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta,
R.M.M. Wallace, ‘The Principle of Non-Refoulement in International Refugee Law’, in
V. Chetail, C. Bauloz (eds.), Research Handbook on International Law and Migra-
tion (2014).
C.W. Wouters, International Legal Standards for the Protection from Refoulement
(2009).
R. Ziegler, ‘Non-Refoulement between Common Article 1 and Common Article 3’, in
D.J. Cantor, J.-F. Durieux (eds.), Refuge from Inhumanity? War Refugees and Inter-
national Humanitarian Law (2014).
Non-State Actors; see: Armed Groups
Nuclear Weapons. Nuclear weapons are explosive devices that derive their
destructive force from the fission or fusion of atomic nuclides [S. Kadelbach,
‘Nuclear Weapons and Warfare’, in R. Wolfrum (ed.), Max Planck Encyclopedia
of Public International Law (2015)]. They include nuclear fission bombs, which
are also referred to as atomic weapons, and fusion bombs, also known as hy-
drogen bombs or thermonuclear weapons.
The destructive power of nuclear weapons derives from the heat, blast
and radiation which are released with the detonation. In addition to causing
an explosion that is by far more powerful than that caused by conventional
weapons, the release of prolonged radiation by nuclear weapons is a unique
phenomenon. As the icj put it in the Nuclear Weapons case, “[t]he destructive
Nuclear Weapons 537
power of nuclear weapons cannot be contained in either space or time. They

have the potential to destroy all civilization and the entire ecosystem of the
planet” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons,
icj, para. 35]. Together with chemical and biological weapons, they are one of
the categories of weapons of mass destruction [see: Chemical Weapons Con-
vention (1992); Biological Weapons Convention (1972)].
Since the use of atomic bombs in 1945 against the Japanese cities of Hiro-
shima and Nagasaki during World War ii, there have been discussions on the
legality of nuclear weapons under international law. Despite the devastating
effects of those nuclear explosions, a number of States have nuclear arsenals
and rely on the doctrine of nuclear deterrence. When the icj rendered its
opinion in 1996, there was no treaty prohibiting the threat or use of nuclear
weapons as such. Only a number of multilateral treaties had been adopted
with the goal of preventing nuclear proliferation and testing, while at the same
time promoting nuclear disarmament. These include the Treaty on the Non-
Proliferation of Nuclear Weapons (npt) of 1968, to which the nuclear-weapons
States are party. In addition, there existed a number of treaties regulating the
manufacturing, testing, possession, proliferation, limitation, and reduction of
nuclear weapons in specific geographical areas, or by specific States possessing
nuclear arsenals.
In July 2017, countries meeting at a UN conference on disarmament adopt-
ed a Treaty on the Prohibition of Nuclear Weapons (tpnw). This is the first
multilateral legally binding instrument prohibiting the use or threat of use of
nuclear weapons [art. 1 tpnw]. It was adopted with 122 votes, one abstention
and one contrary vote. However, 69 countries stayed out of the negotiations
entirely, including all the nuclear-weapon States and nato countries, with the
exception of the Netherlands. The treaty will enter into force following ratifica-
tion, acceptance, approval or accession by 50 States parties.
It is unclear whether a rule prohibiting nuclear weapons has crystallized un-
der customary international law [see: Customary International Law]. In the
Nuclear Weapons case, the icj held that it was unable to find sufficient opinio
iuris to support the formation of such customary rule [Nuclear Weapons, pa-
ras. 64–73]. It considered that the resolutions adopted by the unga since 1961
condemning the use of nuclear weapons and requesting member States to
conclude a multilateral treaty prohibiting these weapons were evidence of a
nascent opinio iuris. However, it concluded that the emergence of a customary
rule was hampered by the strong reliance of a number of States on the doc-
trine of nuclear deterrence. The adoption of a multilateral treaty prohibiting
nuclear weapons in July 2017 signals that a large section of the international
community shares the conviction that the threat or use of nuclear weapons is
538 Nuclear Weapons
prohibited. However, adherence to the doctrine of nuclear deterrence (which

is the factor that led the icj to conclude against the existence of a customary
rule in 1996) still persists.
Aside from the existence of specific treaty or customary rules prohibiting nu-
clear weapons, the threat or use of nuclear weapons must be consistent with the
principles and rules of ihl on the use of weapons. There are serious questions
as to whether nuclear weapons can be used consistently with the principles of
distinction, including the prohibition of indiscriminate attacks, and of propor-
tionality [see: Distinction; Proportionality; Indiscriminate Attacks]. The crux
of the matter is whether the effects of nuclear weapons can be limited as re-
quired under ihl. The main problems in this respect are their massive destruc-
tion capability, and the powerful and long-term radiation generated by nuclear
explosions. Even assuming that nuclear weapons can be directed at a specific
military objective as required by ihl, if used in a populated area they have the
potential to cause death, injury, damage, and destruction to civilians and civil-
ian objects within a radius of kilometres from the epicentre of the blast. More-
over, any residual radioactive material caused by the detonation, which has the
potential to negatively affect human health for generations to come, will spread
in the atmosphere, and can be spread even further by the winds. Even though
the release of radiation is a secondary feature of nuclear weapons, it appears
very difficult to control its harmful effects as required by ihl.
For similar reasons, nuclear warfare appears hardly compatible with the
rules on neutrality [see: Neutrality]. Belligerents have the duty to respect the
integrity of neutral States. However, the effects of a nuclear-weapon attack
may affect third countries because of the magnitude of the blast or because of
nuclear fallout.
Broadly speaking, the effects of a nuclear explosion will depend on the size
and type of weapon used, the location of the explosion (whether it is in the air,
underwater, or on the ground), and weather conditions. Some scholars argue
that, in specific circumstances, the use of low-yield tactical nuclear weapons,
such as precision-guided warheads with limited destruction capability, would
not necessarily be incompatible with the principles of distinction and pro-
portionality. Examples include the selective use of nuclear warheads against
enemy troops in remote areas and in certain weather conditions, or against a
warship at sea. Other commentators argue that any use of nuclear weapons,
including low-yield mini-nukes, would always be in breach of ihl. Their ef-
fects, and particularly the spread of radiation, are inherently uncontrollable,
long-term, and cause unnecessary suffering to combatants.
The icj reached the ambiguous conclusion that the use of nuclear weapons
“would generally be contrary to the rules of international law applicable in
Nuclear Weapons 539
armed conflict, and in particular the principles and rules of humanitarian law”
[Nuclear Weapons, para. 105(2)(E)]. However, the Court did not pronounce on
the legality of the use of low-yield nuclear weapons, or of nuclear weapons in
“an extreme circumstance of self-defence” where “the very survival of a State
would be a stake” [Nuclear Weapons, para. 105(2)(E)]. Moreover, the Court’s
conclusion on this point appears unconvincing, as self-defence does not pre-
clude the wrongfulness of acts contrary to ihl [see: Ius ad Bellum]. The Court
did not tackle the question whether the law of neutrality prohibits causing
incidental damage to the territory of neutral States.
A strategy of massive retaliation appears incompatible with the core prin-
ciples of distinction and proportionality. For an attack with tactical nuclear
warheads to be lawful, it would need to be shown not only that the principles
of distinction and proportionality were strictly observed, but also that the ob-
ligation to take precautionary measures was complied with [see: Precautions,
Active]. The icj did not address this point in its 1996 Advisory Opinion. The
relevant legal test is that it would be impossible to achieve the same military
objective by using conventional weapons. This is a high threshold.
Furthermore, environmental considerations should be taken into account
[see: Environment]. Although the rule in Article 35(3) api arguably does not
apply to nuclear warfare, the icj seemed to suggest that States have to factor
the effects of a nuclear detonation on the environment into the assessment of
what is necessary and proportionate in attacking the enemy [Nuclear Weap-
ons, para. 33].
Another controversial issue is whether nuclear weapons can legitimately be
used in response to an attack with nuclear weapons by another State, by way
of belligerent reprisal. The icj avoided this question and simply stated that
reprisals are governed by the principle of proportionality [Nuclear Weapons,
para. 46].
Finally, a use of nuclear weapons contrary to the rules and principles of ihl
may give rise to State responsibility and the obligation to make reparation [see:
State Responsibility]. Survivors of the nuclear explosions at Hiroshima and
Nagasaki brought a claim for compensation against Japan. The Tokyo District
Court denied the plaintiffs’ claim. It held that, although the dropping of the
atomic bombs on the two Japanese cities was an unlawful act of hostilities,
by signing the San Francisco peace treaty Japan validly renounced its right to
claim damages from the U.S. In addition, that waiver did not give rise to an
obligation on the part of Japan to pay damages to the victims [Judgment, Shi-
moda et al. v. The State of Japan, Tokyo District Court].
Given the devastating effects of nuclear weapons, a conventional prohibi-
tion of their threat or use would be the most effective guarantee against their
540 Occupation
use. The effectiveness of the newly adopted tpnw remains to be seen. Its
impact will depend on the number of ratifications, and on whether nuclear-
weapon States become parties to it. Detailed regulations for the elimination
of existing arsenals would also need to be adopted. It is hoped that the treaty
will at least help stigmatize nuclear weapons and act as a catalyst for their
elimination.
Bibliography
D. Akande, ‘Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advi-
sory Opinion of the International Court’, 68 British Yearbook of International Law
(1998).
S. Casey-Maslen, ‘The Use of Nuclear Weapons under Rules Governing the Conduct
of Hostilities’, in G. Nystuen (ed.), Nuclear Weapons under International Law
(2014).
S. Kadelbach, ‘Nuclear Weapons and Warfare’, R. Wolfrum (ed.), Max Planck Encyclo-
pedia of Public International Law (2015).
S. Oeter, ‘Means and Methods of Warfare’, in D. Fleck (ed.), The Handbook of Interna-
tional Humanitarian Law (2013), p. 115.
Occupation. Belligerent occupation ensues when a State invades the territory

of another State by means of armed force and administers all or part of the
territory of the latter. In law, belligerent occupation is always the result of an
armed conflict between two or more States, i.e. an international armed conflict
[common art. 2 GCs; see: International Armed Conflict]. In non-international
armed conflict [see: Non-International Armed Conflict], the term occupation
cannot apply to the control exercised by one belligerent party over the territory
where it is located: whatever the situation (governmental forces or insurgent
forces or an organised armed group fighting another organised armed group),
the part of the State territory controlled by these forces remains the national
territory of the State, and neither the law nor the ordinary language describe
such territorial control as occupation.
International law refers to belligerent occupation only in the framework of
conflicting relations between two or more States for the following two reasons.
First, the logic of the rule is linked to the logic of international law: since interna-
tional law is intended to govern the relations between States, rather than to regu-
late the relations of a State with its population [see: Public International Law],
Occupation 541
belligerent occupation pertains specifically to international armed conflicts.

Second, ihl confers some rights to the occupying power (without prejudice
to ius ad bellum rules), but to do so in relation to insurgents controlling a part
of State territory, who are often described as “criminals” or “terrorists”, would
amount to conferring some degree of recognition upon them. States are, of
course, not prepared to do so.
The presence of foreign armed forces on the territory of a State, following
an agreement between the host State and the sending State, is not occupation.
This also applies to UN peace-keeping forces: their presence in a State is not
belligerent occupation, because the presence of these forces results from an
agreement with the host State [see: Peacekeeping].
In addition to belligerent occupation, the notion of occupation gained a
new meaning in the framework of the decolonization in the 1960s and 1970s:
the persistence of colonial domination over a people. This concept stems from
Article 1(4) api, which states that the Protocol applies not only to armed con-
flicts defined in Common Article 2 GCs, but also to “armed conflicts in which
peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination”. The
icrc specifies that “[t]he expression ‘alien occupation’ in the sense of this
paragraph […] covers cases of partial or total occupation of a territory which
has not yet been fully formed as a State” [1987 icrc Commentary api, para. 112
(emphasis added)]. Belligerent occupation and colonial occupation are, thus,
factually distinct concepts even if they are governed by the same rules.
1. Applicable Law
From a legal point of view, occupation falls under two sets of rules known as
ius ad bellum [see: Ius ad Bellum] and ius in bello.
Ius ad bellum, i.e. the prohibition of the use of force [art. 2(4) UN Char-
ter], vitiates belligerent occupation that results from a violation of this pro-
hibition and makes it unlawful. Such is the case of the Palestinian territories
occupied since 1967 by Israel [e.g. unsc Resolutions 242 (1967), 338 (1973), 476
(1980)] and Nagorno Karabakh (without indicating, however, which was the
occupying power) [unsc Resolution 853 (1993)]. Although these occupations
must stop immediately, the quoted examples show how the obligation of the
occupying power to withdraw from the occupied territory is far from being
fulfilled. Furthermore, in accordance with the definition of aggression adopt-
ed by the unga, “any military occupation, however temporary, resulting from
[an] invasion or attack” against a State by the armed forces of another State,
qualifies as aggression [unga Resolution 3314 (1974)].
542 Occupation
Whether or not occupation results from a violation of the rules of ius ad bel-
lum, it must comply with the rules concerning ius in bello. This also means that
belligerent occupation as a result of a violation of ius ad bellum cannot become
legal if this occupation fully complies with ius in bello. The same conclusion
may be reached in respect of the persistence of occupation contravening the
right of peoples to self-determination [e.g. Advisory Opinion, Western Sahara,
icj, para. 162]. It is also noteworthy that occupation resulting from a lawful ex-
ercise of the use of force under ius ad bellum does not always comply with ius
in bello. This was, for instance, the case after World War ii when the total sub-
jugation of the territory of the defeated powers, the dismantling of their army
and their government, as well as the termination of any fighting, removed the
precarious character of occupation. Therefore, occupation law was not applied
by the allied powers, which occupied Germany and Japan, in order to maintain
freedom to manage the occupied territories.
Ius in bello concerning occupation is found in the Regulations appended to
the 1907 Hague Convention iv (Hague Regulations), gciv, and international
human rights instruments, in particular their provisions on non-derogable
rights, even in time of war [see: International Human Rights Law]. The Hague
Regulations are considered as the expression of international customary law
[Judgment, Trial of the Major War Criminals, Vol. 1, p. 63; Advisory Opinion,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, ICJ, para. 89]. GCIV also binds all States as customary law. However,
international human rights law is not confined to non-derogable rights. After
finding that Turkey had “effective overall control over Northern Cyprus”, the
ECtHR adjudged that Turkey had to secure “the entire range of substantive
rights set out in the Convention and those additional Protocols which she has
ratified” [Judgment, Cyprus v. Turkey, ECtHR, Grand Chamber, para. 77]. This
finding may possibly be explained by the fact that Turkey did not make use
of the provision allowing part of the rights of the echr to be suspended [art.
15 echr]. Moreover, as the occupying power controls the occupied territory,
such territory is under its jurisdiction, which becomes part of its obligation
to apply human rights to the people under its jurisdiction [Advisory Opinion,
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, icj, paras. 110–112; Judgment, Al-Skeini et al. v. UK, ECtHR, Grand
Chamber, paras. 138–139].
2. Occupation Regulated by ihl

Occupation of the territory of a State is not necessarily an occupation in the
sense envisaged by the Hague Regulations [see: Hague Regulations (1907)].
Occupation within the meaning of Article 42 Hague Regulations occurs only
if the occupied territory is “actually placed under the authority of the hostile
Occupation 543
army” [Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, para. 78]. Thus, it is not enough that foreign forces station
on the territory of an enemy State; they must also have “substituted their own
authority to the authority of” the enemy State [Judgment, Case Concerning
Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), icj, para. 173]. Consequently, the occupying army must be
able to administer the territory of the occupied State.
Even so, the lack of an international provisional administration does not
mean that there is no occupation. Other elements can be taken into account
to show that the territory is under the authority of the enemy army (e.g. de-
feat of the armed forces of the occupied State, sporadic facts of resistance, the
occupying State tells the local population what to do and has the capacity to
make its authority felt, etc.) [Judgment, Naletilić and Martinović, icty, Trial
Chamber, para. 217].
However, even if occupation of the enemy territory remains precarious and
temporary, the mere fact that the armed forces of a State are present on the
territory of another State obliges the former to apply some fundamental rules,
namely: (i) “to restore, and ensure, as far as possible, public order and safety
while respecting, unless absolutely prevented, the laws in force in the country”
[art. 43 Hague Regulations]; (ii) to respect the duty of allegiance of the popula-
tion of the occupied territory towards the occupied State [art. 44 Hague Reg-
ulations]; and (iii) to respect a number of fundamental rights and freedoms
(right to life, religious freedom, property rights, prohibition of looting, collec-
tive punishment, reprisals, human shields, torture, taking of hostages) [arts.
46, 47, 50, 53 Hague Regulations; arts. 27–34 gciv].
Concerning the legal status of occupied territory, occupation must be dis-
tinguished from annexation. In this regard, an arbitrator held: “[q]uels que soi-
ent les effets de l’occupation d’un territoire par l’adversaire avant le rétablisse-
ment de la paix, il est certain qu’à elle seule cette occupation ne pouvait opérer
juridiquement le transfert de souveraineté” [Award, Ottoman Public Debt, RSA,
Vol. I, p. 555; see: Annexation]. Implicitly confirmed by Article 47 gciv, the
rule has been mentioned on a number of occasions by the unga [unga Reso-
lutions 52/67 (1997); 54/79 (1999)] and by the Security Council in respect of: (i)
the Palestinian situation [unsc Resolution 242, (1967), Preamble]; (ii) the an-
nexation of Jerusalem by Israel in 1969 [unsc Resolution 267 (1969); 271 (1969);
465 (1980); 476 (1980)]; (iii) the occupation of the Golan heights by Israel in
1981 [unsc Resolution 497 (1981); see also unga Resolutions 49/36 D (1994);
50/29 D (1995); 51/135 (1996); 52/68 (1997); 54/80 (1999); 55/134 (2000)]; and
(iv) the occupation of Kuwait by Iraq in 1990 [unsc Resolution 662, (1990)].
In relation to Crimea, the unga, “[c]ondemning the temporary occupation
of part of the territory of Ukraine – the Autonomous Republic of Crimea and
544 Occupation
the city of Sevastopol (hereinafter “Crimea”) – by the Russian Federation, and

reaffirming the non-recognition of its annexation, […] Urges the Russian Fed-
eration: (a) To uphold all of its obligations under applicable international law
as an occupying Power” [UNGA resolution 71/205 (2016), Preamble, para. 2].
ihl does not contain well-defined benchmarks to determine the end of oc-
cupation. Accordingly, this assessment may be controversial. For instance, an
occupying power may formally withdraw from occupied territory but, at the
same time, retain considerable control over such territory (e.g. Israel’s with-
drawal from the Gaza strip), or an occupying power may remain in the terri-
tory concerned upon invitation by a government installed following elections,
and/or upon authorisation by the unsc (e.g. Iraq).
3. Obligations of the Occupying Power

When an occupation results from a violation of the prohibition of the use of
force, the first obligation of the occupying power is to withdraw from the occu-
pied territory. The source of this obligation is not ius in bello, but ius ad bellum.
Moreover, all attacks on the occupied territory, its population, or their prop-
erty, even those executed in compliance with ihl, must be repaired [see: State
Responsibility].
Furthermore, whether an occupation is legal or illegal, the rights and obli-
gations of the occupying power, which are defined by the Hague Regulations,
gciv, and the international human rights instruments it has undertaken to
respect, reflect a balance between the military necessities of the occupying
State, considerations of humanity aimed at protecting the civilian population,
and the interests of the occupied State, which remains the sovereign State of
the occupied territory.
In this regard, the occupying power must respect the fundamental rights
and freedoms of the population of the occupied territory [arts. 47–78 gciv; see
e.g. Right to Leave; Transfer by the Occupying Power of its Own Population;
Deportation or Transfer of Civilians; Compelling a Protected Person to Serve
in the Forces of the Hostile Power; Children; Property, Private; Judges and
Public Officials; Humanitarian Relief; Public Health and Hygiene; Religious
Convictions and Practices; Trade].
However, the occupying State may take certain measures required by mili-
tary necessity. For instance, State-owned property and personal goods may be
destroyed when it is absolutely necessary [art. 46 Hague Regulations; art. 53
gciv; see: Military Necessity; Property, Private; Property, Destruction and
Appropriation/Seizure of]. The demolition of Palestinian homes carried out
by Israel in the occupied territories is systematically condemned by the unga
and the unsc [e.g. unsc Resolution 2293 (2016), paras. 22 et seq]. They have
also been condemned by the icj when Israel built a wall in the Palestinian
Orders 545
occupied territory [Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, para. 132]. The occupying State can also behave
“as administrator and usufructuary” of the occupied territory [art. 55 Hague
Regulations], but such usufruct may not degenerate into illegal exploitation of
natural resources of the occupied State [e.g. unsc Resolution 2293 (2016), pa-
ras. 22 et seq; Case Concerning Armed Activities on the Territory of the Congo,
paras. 245–250]. Furthermore, the occupying power can enact laws necessary
to its own security and the security of its armed forces [art. 43 Hague Regula-
tions; arts. 64–65 gciv; see: Legislation in Occupied Territory], evacuate areas
[art. 49 gciv; see: Evacuation], compel protected persons to work [arts. 51–52;
see: Workers], requisition items and buildings [arts. 55, 57 gciv; see: Requisi-
tions], collect taxes [arts. 48–49 Hague Regulations; see: Taxation], prosecute
protected persons [arts. 66–77 gciv; see: Penal Prosecution; Fair Trial], and
subject protected persons “to assigned residence or to internment” [art. 78
gciv; see: Internment; Assigned Residence].
If occupation is the consequence of a lawful use of force, the occupying
State may take the “treasure” (gold, currencies, etc.) of the occupied State,
its military material, and whatever is useful for the war effort [art. 53 Hague
Regulations]. However it is questionable whether this rule remains compatible
with the current nature of international law, which is based on peacekeeping
and the peaceful settlement of international disputes [art. 1 UN Charter].
Eric David – the views expressed are those of the author alone and do not nec-
Bibliography
E. David, Principes de Droit des Conflits Armés (2012), at 2.142, 2.414, 2.450 et seq.
V. Koutroulis, Le Début et la Fin de l’Application du Droit de l’Occupation (2010).
Orders. An order is an authoritative command and, in military terms, “a com-

munication that is written, oral, or by signal, which conveys instructions from
a superior to a subordinate” [United States Headquarters Department of the
Army, Army Planning and Orders Production, Field Manual 5.0 (2005), p. G-4].
Orders may be characterized by heterogeneous features. They may be is-
sued orally, in writing, or by signal. They may be general (meaning that the
addressee is not explicitly named, nor is the person or object to be acted
upon), or they can be direct and specific. They may require to be implemented
una tantum, or they may be of indefinite duration. Moreover, orders can be
issued to guide the conduct in combat operations, or they may address a
plethora of other issues including, for example, instructing on the carrying of
uniforms by members of Armed Forces.
546 Orders
Irrespective of those variants, orders are identified on the basis of their sub-
stance, i.e. the issuance of a mandatory dictate. Typically, orders trigger, in-
deed, the duty for the addressee(s) to execute the command or, otherwise, to
respond for failure to comply.
In light of the binding nature of orders, it is established that commanders
and other superiors should be held accountable for war crimes committed,
or attempted to be committed, in pursuance of orders issued by them [art. 49
gci; art. 50 gcii; art. 129 gciii; art. 146 gciv; rule 152 icrc Customary ihl
Study; art. 25(3)(b) icc Statute; art. 7(1) icty Statute; art. 6(1) ictr Statute;
art. 6(1) scsl Statute]. Moreover, superior orders may be considered in mitiga-
tion of the punishment to be inflicted on a subordinate [art. 7(4) icty Statute;
art. 6(4) ictr Statute; art. 6(4) scsl Statute] and, exceptionally, they may be
validly adduced as a defence if some conditions are satisfied, among which the
fact that the order received was not manifestly unlawful [see: Superior Orders,
Defence of].
In addition to providing for superiors’ responsibility for the issuance of a
command to commit a war crime, ihl also expressly restricts commanders’
freedom to issue some orders by proscribing orders to give no quarter [art. 40
api; art. 4(1) apii; rule 46 icrc Customary ihl Study; see: Quarter] and to
displace the civilian population for reasons related to the conflict [art. 17(1)
apii; rule 129(B) icrc Customary ihl Study; see: Deportation or Transfer of
Civilians].
Furthermore, ihl establishes a duty for some actors to obey orders issued
outside the hierarchical line of command of a party to the conflict. This is the
case, among others, of medical and religious personnel that, when captured, is
required to continue fulfilling its duties under the orders of the adverse party
[art. 30(2) gci; see: Medical Personnel; Religious Personnel] and of prison-
ers of war and civilians internees, who are subjected to the laws, regulations
and orders issued by the detaining power [art. 82(1) gciii; art. 117 gciv; see:
Internment, Deprivation of Liberty, Treatment] that must, indeed, be posted
or communicated to them in a language that they understand [art. 41(2) gciii;
art. 99(3) gciv].
Finally, ihl requires the High Contracting Parties to give orders and instruc-
tions to ensure observance of its precepts [art. 80(2) api].
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol.
1 (2005).
U.S. Headquarters Department of the Army, Army Planning and Orders Production,
Field Manual 5.0 (2005).
Outrage upon Personal Dignity 547
Outrage upon Personal Dignity. Outrage upon personal dignity (in particular,
humiliating and degrading treatment, enforced prostitution, and any form of
indecent assault) is prohibited in international armed conflict under Article
75(2)(b) api [see: Humiliating and Degrading Treatment; Rape and Sexual
Violence]. Article 85(4)(c) api further qualifies “practices of ‘apartheid’ and
other inhuman and degrading practices involving outrages upon personal dig-
nity, based on racial discrimination” as grave breaches [see: Grave Breaches;
Apartheid; Non-Discrimination]. In non-international armed conflict, it is
forbidden under Common Article 3 GCs (in particular, humiliating and de-
grading treatment) and under Article 4(2)(e) apii (in particular, humiliating
and degrading treatment, rape, enforced prostitution, and any form of in-
decent assault). Generally, the wording “in particular” used by the different
provisions simply denotes that the acts specifically mentioned are illustra-
tive, explicitly prohibited in a non-exhaustive list of conduct implicitly pro-
scribed. Outrage upon personal dignity also constitutes a war crime under
the icc Statute [art. 8(2)(b)(xxi), 8(2)(c)(ii)], the ictr Statute [art. 4(e)], and
the scsl Statute [art. 3(e)]. Although not explicitly mentioned in the icty
Statute, outrage upon personal dignity was prosecuted by virtue of the non-
exhaustive list of violations of the laws and customs of war included in Ar-
ticle 3 icty Statute [see e.g. Judgment, Kunarac et al., icty, Trial Chamber,
para. 498]. The prohibition against outrage upon personal dignity is today
considered part of customary international law [rule 90 icrc Customary ihl
Study].
Outrage upon personal dignity can be defined as “acts which, without di-
rectly causing harm to the integrity and physical and mental well-being of
persons, are aimed at humiliating and ridiculing them, or even forcing them
to perform degrading acts” [1987 icrc Commentary api, para. 3047]. It is an
offence that “can be committed in one single act [or] […] result from a com-
bination or accumulation of several acts” [2016 icrc Commentary gci, para.
665]. Further, while the humiliation or degradation must be “real and serious”,
it need not be lasting [2016 icrc Commentary gci, para. 666].
The assessment of the seriousness of the act should not be based only on
subjective criteria related to the sensitivity of the victim, but also on objec-
tive criteria related to the gravity of the act. In particular, “the humiliation to
the victim must be so intense that the reasonable person would be outraged”
[Judgment, Aleksovski, icty, Trial Chamber, para. 56]. However, no specific
intent on the part of the perpetrator to humiliate, ridicule or degrade the vic-
tim is required [Judgment, Aleksovski, icty, Appeals Chamber, para. 27].
In light of the above “outrages upon personal dignity constitute the least
serious type of ill-treatment under ihl” [M. Nowak, ‘Torture and other Cruel,
Inhuman, or Degrading Treatment or Punishment’, in A. Clapham, P. Gaeta
(eds.), The Oxford Handbook of International Law in Armed Conflict (2015),
548 Peace Treaty
p. 400]. The icrc however stresses that the violation “has to be significant in
order to be distinguished from a mere insult” [2016 icrc Commentary gci,
para. 667]. The icc Elements of Crimes clarify that the offence can be perpe-
trated against dead persons and the victims need not personally be aware of
the humiliation; in addition, the cultural background of the victim should be
taken into account [fn. 49, 57 icc Elements of Crimes].
Bibliography
R. Arnold, S. Wehrenberg, ‘Paragraph 2(b)(xxi): Outrages upon Personal Dignity’,
in O. Triffterer, K. Ambos (eds.), The Rome Statute of the International Criminal
Court – A Commentary (2016).
K. Dörman, Elements of War Crimes under the Rome Statute of the International
Criminal Court (2006).
E. La Haye, ‘Article 8(2)(b)(xxi)-Outrages upon Personal Dignity’, in R.S. Lee (ed.), The
International Criminal Court – Elements of Crimes and Rules of Procedure and Evi-
dence (2001).
M. Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in
Armed Conflict (2015).
Oxford Manual on the Laws of War on Land (1880); see: Hague Convention
(iv) Concerning the Laws and Customs of War on Land (1907)
Participation in Hostilities; see: Direct Participation in Hostilities; Combat-

ants; Civilians
Peace Treaty. The words “peace treaty” are used to refer to an agreement in-
tended to end hostilities between warring parties in the context of both inter-
national and non-international armed conflicts. Peace treaties are different to
armistices [see: Armistice] or ceasefires, and are usually the result of a formal
peace process involving negotiations between the parties to the conflict that
are sometimes assisted by neutral international actors, such as the UN.
Modern peace treaties contain provisions that are both backward and for-
ward looking. As a first priority, their purpose is to put an end to the hostilities
between the parties, by containing provisions on ceasefire, demobilisation,
disarmament, reintegration, and/or withdrawal of troops. Secondly, modern
peace agreements may provide solutions to some of the consequences of the
Peace Treaty 549
armed conflict, dealing with issues such as prisoner release [see: Release],
amnesties [see: Amnesty], reconciliation [see: Transitional Justice], and rep-
arations [see: Reparations]. Typically, peace agreements also set the agenda
for the future of the country and may contain forward-looking undertak-
ings on human rights, development, judicial and institutional reform, and
power-sharing. In some instances, peace agreements include detailed rules
of constitutional reform. Probably the most high profile modern example of
a peace agreement is the historic agreement that was recently brokered be-
tween the Colombian government and the farc, after fifty-two years of armed
conflict.
In the past few years, increasing attention has been given to ius post bellum,
the body of substantive rules and principles of procedural fairness governing
transitions from conflict to peace, the substance of which are found in many
peace agreements. Moreover, in recent years, there have been deliberate efforts
to ensure women’s participation in all aspects of peace processes and peace-
building. The unsc has acknowledged the disproportionate impact of violent
conflict on women and calls upon all actors, when negotiating and implement-
ing peace agreements, to adopt a gender perspective [unsc Resolutions 1325
(2000) and 1889 (2009)]. The Resolutions recognise that peace agreements can
provide an important opportunity to remedy gender inequality, through con-
stitutional, electoral, and judicial reform.
Another characteristic of modern peace treaties is that, while such instru-
ments used to contain wide-reaching amnesties, it is widely recognised that it
is no longer possible to provide amnesties for certain international crimes (e.g.
grave breaches) committed during the course of an armed conflict.
While peace agreements drafted at the close of inter-State armed conflicts
[see: International Armed Conflict] clearly have the status of treaties under
international law, there is a continuing lack of clarity about the legal status of
peace agreements brokered at the end of non-international armed conflicts
[see: Non-International Armed Conflict]. Indeed, there are differing aca-
demic views as to whether agreements between States and armed groups can
be the source of binding international legal obligations. As a matter of law,
it would seem possible to create legally binding obligations in circumstances
where the parties intend to be bound by the agreement and intend the agree-
ment to contain international law obligations, rather than domestic obliga-
tions. Lack of consensus on this point explains why some scholars prefer to
use the words “peace agreements” when referring to agreements brokered at
the end of non-international armed conflicts.
550 Peacekeeping
Bibliography
C. Bell, ‘Peace Agreements: Their Nature and Legal Status’, 100(2) ajil (2006).
R.C.H. Lesaffer, ‘Peace Treaties and the Formation of International Law’, in B.
Fassbender, A. Peters (eds.), Oxford Handbook of the History of International Law
(2012).
Peacekeeping. Peacekeeping operations are defined here as operations under-

taken for the purpose of maintaining international peace or contributing to a
peaceful settlement of a conflict, which are governed by the guiding principles
of consent of the parties, impartiality and limited use of force, in the context
of peacekeeping operations undertaken by the UN. These principles are also
applied in operations by other organizations so far as possible. Such operations
may be undertaken by the UN, by regional organizations, or arrangements op-
erating with the consent of the Host State and which usually operate under a
UN mandate. In view of the consensual nature of such operations, the use of
force will normally be restricted to self-defence and in some cases the man-
date may provide for the defence of civilians who are directly threatened with
violence. Operations undertaken under a Chapter vii mandate of the unsc, to
enforce or impose the peace, whereby UN Forces are or become a party to an
armed conflict, will not be discussed here.
In view of the abovementioned consensual nature of the operations and the
requirement to maintain impartiality and the restriction of force, in principle,
to self-defence, the presumption is that peacekeeping missions are not parties
to any ongoing armed conflict, and are consequently civilians for the purposes
of applying ihl, in so far as it is relevant. Indeed, members of peacekeeping
missions have a protected status under treaty law [1994 Convention on the
Safety of United Nations and Associated Personnel] and under customary ihl
[rule 33 icrc Customary ihl Study]. Deliberate attack on members of a peace-
keeping operation, for as long as they are entitled to protection, is additionally
characterized as a war crime under the icc Statute, in both international and
non-international armed conflict [art. 8(2)(b)(iii), 8(2)(e)(iii)].
The applicability of ihl to members of peacekeeping missions is a question
that has become steadily more important with the evolution in peacekeeping
operations from traditional oversight of a ceasefire agreement (that character-
ized most operations in the 1950s and 1960s) to the present, more complex,
types of operations that often take place in an unstable environment, and may
include tasks that are difficult to reconcile with impartiality and limited use of
force. The unsg issued an internal directive that acknowledged the applicabil-
ity of principles of ihl to peacekeeping missions and personnel, in situations
where they became involved in hostilities as combatants, without prejudice to
Penal Prosecution 551
their protected status so long as they are entitled to it [unsg, Bulletin on Ob-
servance by United Nations Forces of International Humanitarian Law (1999)].
However, the Bulletin and its applicability are unclear in some respects. For
example, the Bulletin states that the principles of ihl are applicable without
acknowledging the applicability of rules of customary ihl. It also implies that
the applicability of the Bulletin is limited temporally and geographically for
the duration of a particular engagement.
Whatever the status of the Bulletin, it does not affect either the protected
status of peacekeeping missions and their personnel, for as long as they are
entitled to such protection, nor the applicability of ihl under conventional
and customary law to them, if the threshold conditions for the applicability of
ihl are met [see: International Armed Conflict; Non-International Armed
Conflict]. Consequently, while incidental and sporadic use of force in self-
defence by peacekeeping personnel in accordance with their mandate will not
normally trigger the applicability of ihl, more systematic and intensive use of
force against an organized armed group would trigger the applicability of ihl
relating to non-international armed conflict in the same way it would apply
to other actors. Use of force beyond mere personal self-defence against State
armed forces would trigger the ihl regime for international armed conflict.
As a subject of international law, the UN and most organizations conduct-
ing peacekeeping operations would be subject to customary ihl relevant to
the type of conflict and situation in question, in addition to the obligations
that were incumbent upon each national contingent, pursuant to the sending
State’s treaty obligations [see: International Organizations]. Such obligations
would apply geographically and temporally in the same way they do to any
other party to an armed conflict.
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol.
1 (2005).
unga, Convention on the Safety of United Nations and Associated Personnel (1994).
unsg, Bulletin on Observance by United Nations Forces of International Humanitar-
ian Law (1999).
Penal Prosecution. Penal prosecution or criminal prosecution refers to either

domestic or international trial of individuals for conduct criminalized in na-
tional legislation or by international treaty or customary law [see: Penal Sanc-
tions and Legislation].
552 Penal Prosecution
Penal prosecution could be undertaken against detained military personnel

or civilians. Common Article 3 GCs affords “all the judicial guarantees which
are recognized as indispensable by civilized peoples” to all detainees in in-
ternational and non-international armed conflicts [see: Common Article 3].
These principles are reiterated in the aforementioned grave breaches provi-
sions. With respect to prisoners of war, such guarantees are found in Articles
82–108 gciii, as well as in Article 75 api, which contains more enhanced guar-
antees and mirrors Article 14 iccpr. Under gciv, penal prosecution of civil-
ians should only be carried out by “properly constituted, non-political military
courts” that “sit in the occupied country” [art. 66 gciv]; detailed provisions
governing penal proceedings in such courts are then laid down from Article 71
gciv onwards. These protections are supplemented by Article 6 apii, appli-
cable in non-international armed conflicts, which leaves intact the right of the
established authorities to prosecute members of the armed forces and civil-
ians who may have committed an offence related to the armed conflict. It also
reiterates the safeguards contained in gciii and gciv and offers additional
ihrl protections encompassed by Article 15 iccpr [1987 icrc Commentary
apii, para. 4597].
The complex interaction of rules of ihl and ihrl governing penal prosecu-
tion of individuals in times of armed conflicts brings many practical difficul-
ties, particularly where it concerns the application of these rules to non-State
actors, which are involved in the overwhelming majority of modern armed
conflicts. The lack of express authority in ihl for such groups to undertake pe-
nal prosecutions might open the door to administrative detention, summary
executions, and other violations of ihl and ihrl.
Penal prosecution in international law traditionally refers to individual of-
fenders, neglecting a recent turn in ihrl to recognizing the responsibility,
and possible criminal complicity, of corporate entities, private military com-
panies [see: Private Military and Security Companies], and other organiza-
tions in perpetrating mass atrocities. The Human Rights Council’s so-called
Ruggie Principles spell out ihrl obligations of business enterprises [ohchr,
Guiding Principles on Business and Human Rights – Implementing the Unit-
ed Nations “Protect, Respect and Remedy” Framework (2011)]. The icrc has
also endorsed the view that armed opposition groups “incur responsibility for
acts committed by persons forming part of such groups”, admitting however
that “the consequences of such responsibility are not clear” [rule 149 icrc
Customary ihl Study]. The June 2014 Protocol amending the statute of the
African Court of Justice and Human Rights, once it enters into force, will pro-
vide jurisdiction to the reconstituted African Court to prosecute corporations
for international crimes, including war crimes [art. 46C(1) Draft Protocol on
Penal Sanctions and Legislation 553
Amendments to the Protocol on the Statute of the African Court of Justice and
Human Rights].
Ilya Nuzov – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Federation for Human Rights
Bibliography
P. Rowe, ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in A.
Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary
(2015).
Penal Sanctions and Legislation. This expression refers to the modes of pun-
ishment of individuals for international crimes and the laws of criminal law
that enable the prosecution and punishment of international criminal offens-
es [see: Penal System; International Criminal Law].
Penal legislation of international crimes evolved both domestically and in-
ternationally in the aftermath of World War ii. Mass violations of the laws and
customs of war, the absence of international regulations, and scant domes-
tic legislation on the subject of international crimes prompted the majority
of States to adopt special laws for the repression of crimes committed by the
enemy against their civilian population and prisoners of war [1960 icrc Com-
mentary gciii, p. 618]. At the international level, the charters of both the imt
and imtfe set out the law and procedure for the trials of individuals respon-
sible for war crimes, crimes against humanity, and aggression, accompanied
by provisions for penal sanctions. These developments led to increased efforts
by States and the icrc to establish an effective system of repression of inter-
national violations [2016 icrc Commentary gci, paras. 2830–2837]. The 1949
GCs for the first time included common provisions criminalizing certain vio-
lations of the Conventions, called “grave breaches” [see: Grave Breaches]. The
grave breaches regime requires Contracting States to prosecute or extradite
the offenders and “to enact any legislation necessary to provide effective pe-
nal sanctions for persons committing, or ordering to be committed, any of the
grave breaches” [art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv]. The ob-
ligations to enact legislation providing “effective penal sanctions”, which must
be fulfilled during peacetime, was designed to provide an innovative, “water-
tight mechanism” which would ensure the effective prosecution of alleged per-
petrators of war crimes [2016 icrc Commentary gci, paras. 2819–2839].
To be “effective”, the penal sanctions enacted should “specify the nature and
extent of the penalty for each infraction, taking into account the principle of
due proportion between the severity of the punishment and the gravity of the
554 Penal Sanctions and Legislation
offence” [1952 icrc Commentary gci, p. 364]. That is, the penalty must be
the most appropriate one for the specific illegal act. Penal sanctions must also
be adequately disseminated in order to play a sufficiently dissuasive function
[2016 icrc Commentary gci, para. 2842]. With respect to implementing leg-
islation, it should provide for sanctions issued by judicial institutions, be they
military or civilian, that will usually lead to the imprisonment of the perpetra-
tors, or to the imposition of fines [2016 icrc Commentary gci, para. 2841].
The implementing legislation must also establish a jurisdictional basis for
the prosecution of all grave breaches. Since Article 49(2) gci, and its equiva-
lent in other GCs, requires States parties to prosecute all persons who have
committed or ordered the commission of grave breaches, regardless of their
nationality, it is commonly viewed that universal jurisdiction over grave
breaches must be included in the implementing legislation [2016 icrc Com-
mentary gci, paras. 2846–2847]. According to some commentators, however,
the obligation is complied with regardless of the characterization in the inter-
nal order of the offense as “a grave breach” of the GCs, and the latter do not
contain a universal jurisdiction requirement [P. Gaeta, ‘Grave Breaches of the
Geneva Conventions’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva
Conventions: A Commentary (2015), pp. 621–622].
In light of the great variation of legislative policy with regard to penal sanc-
tions, the punishment that the individual offender faces for a penal offense
will differ from State to State. The lack of predictability is augmented by a
great divergence of sentences imposed by national courts and those passed
by international or hybrid tribunals for similar crimes [see: Hybrid or Inter-
nationalised Tribunals]. Due to the extraordinary nature of some atrocities,
difficulties arise as to assessing the effectiveness of penal sanctions, and their
ability to achieve the deterrent, retributive, rehabilitative, or expressivist func-
tions usually attributed to criminal law. These difficulties are amplified in tran-
sitional justice contexts, where the goals of justice must be balanced with the
need for reconciliation and the political desirability of amnesties [see: Transi-
tional Justice]. Some scholars argue that the focus of penal sanctions should
turn to non-traditional means, such as reparations and declaratory relief [see:
Reparations], to address the collective, extraordinary nature of certain inter-
national crimes [see e.g. M.A. Drumbl, Atrocity, Punishment, and Internation-
al Law (2007)].
Ilya Nuzov – the views expressed are those of the author alone and do not nec-
essarily reflect the views of the International Federation for Human Rights
Bibliography
P. Gaeta, ‘Grave Breaches of the Geneva Conventions’, in A. Clapham, P. Gaeta,
Penal System 555
Y. Sandoz, ‘The History of the Grave Breaches Regime’, 7(4) jicj (2009).
Penal System. Penal system refers to the laws, institutions, policy, and practice
that govern imprisonment or any other form of punishment of offenders for
violations of penal law. On a domestic level, these institutions regulate every
aspect of a State’s activities, beginning with the investigation of facts, the pros-
ecution of a suspected perpetrator, the enforcement of sentences, and the re-
integration of a convicted offender into society. In the context of international
criminal law, penal systems address all issues related to the punishment of
individuals by international criminal courts, including the imposition and ex-
ecution of sentences, imprisonment, transfer, and release of detainees, as well
as non-punitive rehabilitation programs.
Modern day penal systems are justified by several rationales for punish-
ment, among them rehabilitation, retribution, deterrence, incapacitation,
and expressivism. One of the early aims of penal systems, i.e. deterrence,
was based on the assumption that individuals are dissuaded from commit-
ting crimes for fear of punishment. Although deterrence remains one of the
more prevailing theories justifying punishment, its capability of fulfilling the
assigned function has been extensively questioned. Retribution is understood
to mean that criminals should be punished because they deserve it, and this
is the dominant stated objective of punishment of perpetrators of crimes at
both the domestic and international level. According to the proponents of the
rehabilitative rationale, a desire to normalize the offender started to increase
with the development of prisons, turning penal institutions from moral and
ritualistic into rational and professionalized institutions. Expressivists view
the penal system as an institutionalized show of collective moral outrage and
the passing of sentences as formalized rituals through which a society conveys
disapproval.
The international penal system draws on different goals of punishment that
coexist in domestic systems, and thus grounds institutions in norms derived
from the interaction of multifarious elements of domestic and international
law. The positive law of international criminal tribunals, including provisions
governing penal sanctions, might be based on an international treaty (e.g.
icc), a unsc Resolution (e.g. icty and ictr), or an agreement between the
UN and a member State (e.g. stl), but its substantive provisions will reflect
general principles of domestic law transposed on the international plain that
have elements of both common and civil law domestic systems [see: Hybrid
or Internationalised Tribunals; International Criminal Tribunals]. The inter-
national penal system also invariably depends on States for the enforcement
of sentences.
556 Perfidy
In the practice of international criminal tribunals, the most prominent ratio-

nales for punishment are retribution and deterrence [see e.g. Judgment, Simić,
icty, Trial Chamber, para. 1059; Judgment, Rutaganda, ictr, Trial Chamber,
para. 456]. The role of rehabilitation and incapacitation within the practice of
international sentencing is of lesser significance [see e.g. Judgment, M. Nikolić,
icty, Trial Chamber, paras. 85, 93].
While significant study of penal systems has been conducted on the domes-
tic level, this field of research has only recently started to crystallize as a sub-
set of international criminal law. This is attributable to the relatively recent
emergence of international criminal law and the attendant penal institutions
capable of imposing and carrying out of sentences. The emphasis of domestic
penal systems on deterrence, retribution and rehabilitation has overshadowed
the expressivist function, which might be more suitable for addressing the col-
lective and extraordinary nature of international crimes.
Ilya Nuzov – the views expressed are those of the author alone and do not nec-
essarily reflect the views of the International Federation for Human Rights
Bibliography
M. Drumbl, Atrocity, Punishment, and International Law (2007).
D. Garland, Punishment and Modern Society: A Study in Social Theory (1990).
R. Mulgrew, D. Abels (eds.), Research Handbook on the International Penal System
(2016).
D. Rothman, N. Morris, Oxford History of the Prison (1996).
Perfidy. Perfidy is defined in Article 37(1) api as “[a]cts inviting the confidence
of an adversary to lead him to believe that he is entitled to, or is obliged to ac-
cord, protection under the rules of international law applicable in armed con-
flict, with intent to betray that confidence”. Perfidy is considered a more serious
violation of ihl due to the “specific intent to breach the adversary’s confidence”,
which sets perfidy apart from other breaches of ihl [J.-M. Henckaerts, L. Do-
swald-Beck, Customary International Humanitarian Law, Vol. i (2005), p. 223].
According to State practice reflected in military manuals and national
legislation, the prohibition of perfidy has become a rule of customary inter-
national law applicable in both international and non-international armed
conflicts [rule 65 icrc Customary ihl Study]. On the basis of this practice,
the icrc notes “that killing, injuring or capturing by resort to perfidy is ille-
gal under customary international law but that only acts that result in seri-
ous bodily injury, namely killing or injuring, would constitute a war crime”
[Henckaerts, Doswald-Beck, p. 225]. In fact, although the drafters opted
Perfidy 557
to use the word “treacherously” instead of perfidy, the icc Statute reflects
these exact considerations and explicitly recognizes that “treacherously kill-
ing or wounding” individuals would constitute a war crime in both interna-
tional and non-international armed conflicts [art. 8(2)(b)(xi), 8(2)(e)(ix) icc
Statute].
api provides examples of perfidy, namely “(a) the feigning of an intent to
negotiate under a flag of truce or of a surrender; (b) the feigning of an inca-
pacitation by wounds or sickness; (c) the feigning of civilian, non-combatant
status, and (d) the feigning of protected status by the use of signs, emblems or
uniforms of the United Nations or of neutral or other States not Parties to the
conflict” [art. 37(1) api] or “the perfidious use […] of the distinctive emblem
of the red cross, red crescent or red lion and sun or of other protective signs
recognized by the” GCs or api [art. 85(3)(f) api]. This list is not exhaustive and
only provides guidance. Indeed, perfidy can be committed beyond incidents
causing death or injury. For instance, it has been found that obliging a person
to call on men “to surrender, on the grounds that icrc was present”, in “a closed
military zone into which no one, including the icrc, was permitted to enter”
qualifies as perfidy [UN Human Rights Council, Report of the United Nations
Fact-Finding Mission on the Gaza Conflict (2009), para. 1106]. Other examples
include using an ambulance to carry weapons, ammunitions, or soldiers [R.
Kolb, Advanced Introduction to International Humanitarian Law (2014), pp.
40–42], feigning special protection to target the enemy (for example, by wear-
ing the outfit of an icrc delegate), or, under a certain interpretation, using
non-combatants as shields [M. Muhammad, ‘The Layha for the Mujahideen:
an Analysis of the Code of Conduct for the Taliban fighters under Islamic
law’, 93(881) irrc (2011), p. 100; contra: S. Bouchié de Belle, ‘Chained to Can-
nons or Wearing Targets on their T-Shirts: Human Shields in International
Humanitarian Law’, 90(872) irrc (2008); see: Human Shields].
It is critical to differentiate between perfidy and ruses of war. Whilst both
actions are defined under Article 37 api, ruses of war are permitted under in-
ternational law, at least as long as they do not infringe any rule of ihl [rule 57
icrc Customary ihl Study; see: Ruses of War]. The central point of difference
is that ruses of war attempt to mislead an adversary or to induce him to act
recklessly. However, the distinction may not be apparent.
For instance, it has been claimed that disguising a military objective as a
civilian object and using it for an attack constitutes perfidy as opposed to a
permissible ruse of war [R. Bartels, ‘Killing with Military Equipment Disguised
as Civilian Objects is Perfidy’, Just Security (2015)]. In particular, it has been
underlined that “ihl affords protection to both civilians and civilian objects”,
with no distinction made between objects provided with special protection
558 Physical Mutilation
(such as an ambulance) and civilian objects provided with regular protec-

tion (such as a car). Conversely, others refuse to equate feigning civilian sta-
tus with feigning civilian-object status [K.J. Heller, ‘No, Disguising Military
Equipment as Civilian Objects to Help Kill isn’t Perfidy’, Just Security (2015)].
In particular, it is argued that, under conventional and customary ihl, at least
five military practices of civilian disguise (camouflage, ambush, cover, booby-
traps and landmines) [see: Camouflage; Booby-Traps; Landmines] are permit-
ted and that “making a military object […] appear to be a civilian object” is a
permissible ruse of war, not a prohibited act of perfidy, as long as the civilian
object in question does not receive special protection under ihl” [K.J. Heller,
‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permis-
sible Ruse of War?’, 91(517) International Law Studies (2015), p. 518].
Bibliography
R. Bartels, ‘Killing With Military Equipment Disguised as Civilian Objects is Perfidy’,
Just Security (2015), Part i and Part ii.
K.J. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Per-
missible Ruse of War?’, 91(517) International Law Studies (2015).
R. Kolb, Advanced Introduction to International Humanitarian Law (2014), pp. 40–42.
N. Melzer, International Humanitarian Law. A Comprehensive Introduction (2016), pp.
108–109.
M. Muhammad, ‘The Layha for the Mujahideen: an Analysis of the Code of Conduct
for the Taliban Fighters under Islamic Law’, 93(881) irrc (2011).
V. Rusinova, ‘Perfidy’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public Interna-
tional Law (2012).
Physical Mutilation. Mutilation is the “severe damage to someone’s body es-

pecially when part of it is cut or torn off” [Oxford Advanced Learner’s Diction-
ary]. As the definition suggests, mutilation entails an act of physical violence.
Hence, the terms “mutilation” and “physical mutilation” referred to in the ihl
provisions proscribing such practice may be considered equivalent. Examples
of acts amounting to mutilation are the amputation, removal or disabling of
limbs, organs and other body parts, including sexual organs, as well as the dis-
figuring of a person.
Under ihl, the prohibition against mutilation aims at the fulfilment of an
essential objective of this body of law, namely to ensure humane treatment to
persons affected by armed conflicts [see: Inhuman Treatment]. The prohibi-
tion against mutilation is, indeed, a long-standing rule of ihl, which already
Physical Mutilation 559
appeared in the 1863 Lieber Code, that has attained customary status and that
represents a fundamental guarantee for civilians and persons hors de combat
[art. 56 Lieber Code; common art. 3(1)(a) GCs; art. 13(1) gciii; art. 32 gciv; art.
11(2)(a) api; art. 75(2)(a)(iv) api; art. 4(2)(a) apii; rule 92 icrc Customary ihl
Study].
As the rationale of the prohibition suggests, the proscription protects only
living human beings and does not extend to the mutilation of corpses that is,
however, also prohibited under ihl [rule 113 icrc Customary ihl Study] and
that further amounts to an outrage upon personal dignity [see: Outrage upon
Personal Dignity].
In conformity with the ratio of the prohibition, mutilations can be excep-
tionally justified for medical reasons. It is possible, indeed, to carry out an act
of mutilation in the interest of the health of the person undergoing the proce-
dure, for example by amputating a gangrenous limb, or removing the appendix
in case of appendicitis. Such medical procedures are permitted under ihl only
if justified by the need to improve the state of health of the person undergoing
treatment, and if carried out in compliance with generally accepted medical
standards [art. 11 api; see: Removal of Tissue or Organs; Medical Standards,
Generally Accepted].
The icc Elements of Crimes for the war crime of mutilation suggest that the
effects of such act should have a permanent nature. This element should be
interpreted as indicating that the effects of an act of mutilation should be long-
lasting, remain unchanged indefinitely and not that they must necessarily last
forever. Therefore, for example, mutilations causing injuries that may be cured
by surgery would fall under the prohibition.
The breach of the ihl prohibition against mutilation may amount to a so-
called “medical grave breach” [art. 11(4) api]. Such conduct may also fall under
the grave breach of “acts wilfully causing great suffering or serious injury to
body or health” under the GCs [see: Wilfully Causing Great Suffering or Seri-
ous Injury to Body or Health]. Mutilation has also been broadly recognized as
a war crime subjected to international criminal prosecution [art. 8(2)(b)(x),
8(2)(c)(i), 8(2)(e)(xi) icc Statute; art. 4(a) ictr Statute; art. 3(a) scsl Statute].
Bibliography
A. Zimmermann, R. Geiss, ‘Paragraph 2(b)(x): Prohibition of Physical Mutilation’, in
O. Triffterer, K. Ambos (eds.), The Rome Statute of the International Criminal Court:
560 Pillage
Pillage. The crime of pillage is generally described as the intentional and

unlawful appropriation of property during armed conflict. Its prohibition is
long-established in ihl and is considered customary international law in both
international and non-international armed conflicts [rule 52 icrc Customary
ihl Study]. Since the 1863 Lieber Code, the prohibition has been included in
most major instruments regulating armed conflict and in numerous military
manuals.
The Hague Regulations of 1899 and 1907 provide that “the pillage of a
town or place, even when taken by assault, is prohibited”, and that “pillage is
formally forbidden” [arts. 28, 47 Hague Regulations]. The Nuremberg Charter
and Control Council Law No. 10 prohibited the war crime of “plunder of public
and private property”, and the crime of pillage was the subject of proceedings
before the imt and other trials following World War ii. In international armed
conflict, the prohibition attaches to: pillage of military wounded and sick [art.
15 gci; art. 18 gcii]; pillage of civilian wounded and sick [art. 16 gciv] and
civilians in all territories [art. 33 gciv]. In non-international armed conflict,
pillage is also forbidden [art. 4(2)(g) apii]. Pillage is included as a war crime
in the Statutes of the icty, ictr, scsl, icc, and untaet, but not explicitly
defined in any of these. The icty understood it to “embrace all forms of unlaw-
ful appropriation of property in armed conflict for which individual criminal
responsibility attaches under international law […]” [Judgment, Blaškić, icty,
Trial Chamber, para. 184]. Furthermore, “pillage” is used synonymously with
“plunder”, “looting”, “sacking”, and “spoliation” [Judgment, Delalić et al., icty,
Trial Chamber, para. 591].
The icc Elements of Crimes set out the following legal components for the
crime of pillage: (i) the perpetrator appropriated certain property; (ii) the per-
petrator intended to deprive the owner of the property and to appropriate it
for private or personal use; (iii) the appropriation was without the consent of
the owner; (iv) the conduct took place in the context of and was associated
with an international or non-international armed conflict; (v) the perpetrator
was aware of factual circumstances that established the existence of an armed
conflict.
The requirement in the icc Elements that the appropriation be “for person-
al or private purposes” diverges from other war crimes jurisprudence, which
only requires non-consent of the owner subject to a series of exceptions con-
tained in the Hague Regulations [arts. 52–53, 55 Hague Regulations; see: Requi-
sitions]. The scsl has stated that “the requirement of ‘private or personal use’
is unduly restrictive and ought not to be an element of the crime of pillage”
[Judgment, Brima, scsl, Trial Chamber, para. 754; Judgment, Fofana et al.,
scsl, Trial Chamber, para. 160; see also: Judgment, Krauch et al., US Military
Tribunal vi, p. 1134].
Piracy 561
There is a growing body of literature on illegal exploitation and trade of

natural resources by commercial entities in the context of modern conflicts.
A number of authors argue that corporate entities should be held accountable
under the war crime of pillage. This can be the case in prolonged situations
of occupation, where corporations may exploit the natural resources of the
occupied territory beyond the needs of the occupying power, thus altering the
temporary nature of the occupation.
Helen McDermott – the views expressed are those of the author alone and do
Bibliography
P.J. Keenan, ‘Conflict Minerals and the Law of Pillage’, 14(2) Chi. J. Int’l L. (2014).
J. Stewart, ‘Corporate War Crimes: Prosecuting Pillage of Natural Resources’, Open So-
ciety Foundations (2010).
L. van den Herik, D. Dam-de Jong, ‘Revitalizing the Antique War Crime of Pillage: The
Potential and Pitfalls of Using International Criminal Law to Address Illegal Re-
source Exploitation during Armed Conflict’, 22(3) Criminal Law Forum (2011).
Piracy. The international law applicable to the repression of piracy is set forth
in the UN Convention on the Law of the Sea (unclos). The unclos provi-
sions addressing piracy represent customary international law and are, there-
fore, binding regardless of whether a State is party to the Convention.
Piracy is defined in Article 101 unclos as any of the following acts: (a) any
illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft,
and directed: (i) on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft; (ii) against a ship, aircraft,
persons or property in a place outside the jurisdiction of any State; (b) any
act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or
of intentionally facilitating an act described in subparagraph (a) or (b). To con-
stitute piracy, acts of violence must be motivated by “private ends”. Conversely,
if acts of violence are motivated by public ends, i.e. State objectives, they are by
definition excluded from the unclos provisions related to piracy.
According to Article 100 unclos, all States have a duty to cooperate in the
repression of piracy. Further, States have universal jurisdiction to repress pi-
racy, meaning that enforcement actions on the high seas may be carried out by
every State, regardless of the nationality of the suspected offender, pirate ship/
aircraft, victim or victim ship/victim aircraft [art. 105 unclos]. The courts of
the seizing State may decide, based on municipal (domestic) law, the penalties
562 Piracy
to be imposed, and may also determine the action to be taken with regard to
the ships, aircraft, or property, subject to the rights of third parties acting in
good faith. Enforcement measures in respect of piracy under unclos are an
exception to the principle of exclusive flag State jurisdiction over ships on the
high seas, as provided by Articles 92 and 94 of unclos. However, enforcement
powers are limited to the high seas and do not extend to pursuing pirates into
foreign territorial waters without the coastal State’s consent.
Furthermore, Articles 107 and 110 unclos provide a right of interdiction
of suspected pirate ships. In particular, warships or military aircraft, or other
ships or aircraft, clearly marked and identifiable as being on government ser-
vice and authorized to that effect, may (a) verify the ship’s right to fly its flag;
and (b) board and examine the ship. Conversely, there is no such right of visit
onto warships and State-owned ships on non-commercial service under Ar-
ticles 95 and 96 unclos.
Warships or other ships on government service have complete immunity
from all but the flag State [arts. 29, 32, 95 unclos]. In principle, within the
context of an armed conflict, the GCs, APs, and customary ihl govern the con-
duct of warships. However, when a warship encounters a non-State actor en-
gaged in a non-international armed conflict or an international armed conflict
(in the latter case assuming that the non-State actor acts on behalf of a State),
ihl and unclos may apply concurrently to the non-State actor. For example,
due to the nexus with an armed conflict, the non-State actor at sea may be a
legitimate military target [see: Military Objectives]. If, however, the non-State
actor becomes shipwrecked, gcii protections must be afforded. Regardless of
the nature of the conflict, piracy, as defined by unclos, could serve as the ba-
sis of charges if all of the elements are met, including that the non-State actor
perpetrated the act for private ends. Likewise, the non-State actor’s ship and
property may be seized [art. 105 unclos].
Complications arise with regard to terroristic purposes and non-State ac-
tors. There is some reason to consider acts committed for political purposes,
e.g. terrorism, to be fully excluded from the definition of piracy [Harvard Re-
search in International Law: Draft Convention on Piracy (1932)]. Nevertheless,
there is disagreement on this point [Ninth Circuit Review, Institute of Ceta-
cean Research v. Sea Shepherd Conservation Society, 725 F.3D 940 (2013); see
also: H.E. J.L. Jesus, ‘Protection of Foreign Ships against Piracy and Terrorism at
Sea: Legal Aspects’, 18 International Journal of Marine and Coastal Law (2003),
pp. 378–379].
The Convention for the Suppression of Unlawful Acts and against the Safety
of Maritime Navigation (sua Convention) and associated protocols are specifi-
cally aimed at terrorist acts committed on the high seas against fixed platforms
Precautions, Active 563
on the continental shelf, or affecting multiple States’ territorial seas. The sua
Convention permits States to create offences for the attack, seizure, or other
acts of violence directed at or on ships at sea [art. 3 sua Convention]. The
Convention further encourages the prosecution of such acts and inter-State
cooperation in the sharing of evidence and extradition of suspected offenders.
Only State parties to the sua Convention may invoke its enforcement powers.
However, there are now 166 States party to the sua Convention, representing
95% of the world’s ship tonnage, lending some weight to the view that the Con-
vention may constitute customary international law. Like unclos, the sua
Convention expressly does not apply to, or affect the immunities of, warships
[art. 2 sua Convention].
Cambodia
Bibliography
R. Geiss, A. Petrig, Piracy and Armed Robbery at Sea – The Legal Framework for
Counter-Piracy Operations in Somalia and the Gulf of Aden (2011).
D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009).
Plunder; see: Pillage
Poisonous Gases; see: Geneva Gas Protocol (1925)
Precautions, Active. Precautions in the attack, if implemented in good faith,

make a substantial contribution to the mitigation of risk to civilians and ci-
vilian property jeopardized by hostilities during armed conflict. Whenever an
attack (the use of force during armed conflict, whether offensively or defen-
sively) is reasonably expected to create such risk to civilians and/or civilian
property, precautionary measures must be integrated into the attack planning
and execution process [see: Attacks; Hostilities, Conduct of].
Article 57 api enumerates a number of specific precautionary measures.
These measures are considered a codification of customary international law,
binding on all States, even those not bound by api. Furthermore, while no
analogous article was included in apii, these measures are widely considered
applicable to both international and non-international armed conflict, as a
matter of customary international law [rule 15 icrc Customary ihl Study].
Furthermore, the obligation to consider and, when feasible, implement pre-
cautionary measures is increasingly accepted as a fundamental principle of
564 Precautions, Active
ihl. When properly implemented, precautionary measures align with tactical

and operational logic, and reflect the delicate balance between military ne-
cessity and dictates of humanity, a balance at the very foundation of conflict
regulation [see: Military Necessity; Humanity].
Article 57(1) api imposes on parties to international armed conflicts the ob-
ligation to take “constant care […] to spare the civilian population, civilians
and civilian objects” from the harmful effects of military operations. Article
57 then enumerates more specific precautionary measures that advance this
important humanitarian law objective. They include: (1) the gathering and
consideration of reasonably available information to contribute to the best
possible target assessment; (2) the selection of means (weapons) and meth-
ods (tactics) for an attack that will mitigate the risk to civilians and civilian
property; (3) the issuance of warnings unless circumstances do not permit; (4)
when multiple attack options offer the same or similar military advantage, the
selection of the option that poses the lesser risk to civilians; and (5) the obliga-
tion to cancel or suspend any attack anticipated to cause harm to civilians and/
or civilian property calculated as excessive in comparison to the anticipated
concrete and direct military advantage. It is important to note that the lan-
guage used in Article 57 api indicates that these precautions are presumptively
required. However, Article 57 api also indicates that the obligation to imple-
ment precautionary measures is qualified by considerations of feasibility. For
example, the pre-attack warning obligation is required unless “circumstances
do not permit”. Likewise, the obligation to select military objectives and meth-
ods or means of attack based on mitigation of civilian risk is qualified by the
consideration of military advantage. In other words, there is no obligation to
adopt the “least civilian risk” option when doing so compromises the antici-
pated military advantage of the attack.
Precautionary measures, when properly understood and implemented in
good faith, will reduce the complexity of the ultimate proportionality deci-
sions related to attacks that endanger civilians and civilian property [see:
Proportionality]. At the operational level, they can be integrated into delib-
erate and to a lesser degree time-sensitive targeting decisions. This integra-
tion will ideally narrow the range of civilian risk that commanders must assess
when making the ultimate attack decision. However, as noted, implementation
of these enumerated precautionary measures is always qualified by feasibility
considerations, which merely reflects the reality that tactical and operational
considerations will often necessitate limits on the measures that may reason-
ably be taken to mitigate civilian risk. Indeed, no commander can be expected
to possess perfect situational awareness prior to launching an attack; warnings
may be reasonably assessed as contrary to the tactical imperative of surprise;
Precautions, Passive 565
precision attack capability may simply be unavailable; the option to shift the
time of an attack in order to mitigate civilian risk may nullify the potential ef-
fect on the enemy.
These and related tactical and operational considerations always impact
the precautions implementation process, as they must. However, the obliga-
tion to make good faith efforts to implement precautionary measures when-
ever feasible must constantly be emphasized. Doing so serves a vital function:
reminding those entrusted with lethal combat power of their obligation to
constantly endeavour to mitigate the harm to innocents during the execution
of even their most vital military missions.
Geoffrey S. Corn – the views expressed are those of the author alone and do not
necessarily reflect the views of the U.S. Army or any other institution the author
is affiliated with
Bibliography
G.S. Corn, ‘Targeting, Distinction, and the Long War: Guarding against Conflation of
Cause and Responsibility’, 46 Israel Yearbook on Human Rights (2016).
G.S. Corn, J. Schoettler, ‘Targeting and Civilian Risk Mitigation: The Essential Role of
Precautionary Measures’, 223 (785) Mil. L. Rev. (2016).
(2016), pp. 164–173.
L.C. Green, The Contemporary Law of International Armed Conflict (2000), pp.
155–157.
Precautions, Passive. Precautions against the effects of attack complement

the obligation imposed on an attacking force to implement precautions in the
attack [see: Precautions, Active]. However, unlike these active precautions,
precautions against effects of an attack are more passive in nature. In essence,
these measures are designed to mitigate civilian risk by making it less likely
that an attacking enemy will endanger civilians and/or civilian property when
attacking lawful targets.
Article 58 api enumerates these passive precautionary measures. The ob-
ligation to take feasible passive precautions to mitigate civilian risk, like the
active precautions obligation, is considered customary international law bind-
ing on all States. While no analogous article was included in apii, the passive
precautions obligation is widely considered applicable to both international
and non-international armed conflict, as a matter of customary international
law [rule 22 icrc Customary ihl Study]. Furthermore, it is equally binding on
States and organized armed groups engaged in such conflicts.
566 Precautions, Passive
The specific precautionary measures enumerated in Article 58 api include:

(1) the removal of civilians and civilian property from areas likely to be sub-
jected to enemy attack [see: Evacuation]; (2) the obligation to avoid locating
military objectives in or near densely populated areas; and (3) the general ob-
ligation to take other necessary precautions to protect civilians and civilian
property from the consequences of attack. However, none of these obligations
are absolute. Instead, each is qualified by feasibility considerations: implemen-
tation is required to “the maximum extent feasible”. These considerations in-
clude a lack of capacity to implement such measures (for example, an inability
to evacuate civilians), considerations of military necessity (for example, the as-
sessed necessity to retain a vital military asset near a population center because
of reliance on shared resources like power, fuel, food, and water), and degrada-
tion of military advantage resulting from implementing such measures.
The qualified nature of the passive precautions obligation is reflected in the
terms of Article 58 api, which indicates parties to a conflict must only “endeav-
our to remove” civilians and civilian property, and need only “avoid” locating
military objectives in the midst of the civilian population. Nonetheless, these
measures fall under an overarching humanitarian obligation to take “constant
care” to mitigate civilian risk. Therefore, good faith implementation of these
passive precautions demands that commanders should constantly seek to em-
ploy such measures in a manner that is consistent with military necessity [see:
Military Necessity].
Passive precautionary measures are not limited to those enumerated in Ar-
ticle 58 api. Instead, parties to a conflict are obligated to constantly assess the
feasibility of implementing other measures that reduce civilian exposure to
the effects of an enemy attack. One such measure that arguably falls within
the scope of this obligation is a requirement that armed forces and members
of organized armed groups facilitate enemy distinction efforts by wearing uni-
forms or other distinctive indicators of belligerent status [see: Combatants].
In so doing, these belligerent forces substantially reduce the risk of mistaken
attack identification.
The record of compliance with the passive precautions obligation is diffi-
cult to quantify, due in part to the qualified nature of the obligation itself, and
the absence of an analogous provision in apii. However, while implementa-
tion of these measures is qualified by feasibility considerations, it is clear that
ignoring these obligations in order to exploit the presence of civilians to gain
tactical or strategic advantage is inconsistent with these provisions. To this
end, the use of civilians as human shields is prohibited by IHL and a war crime
within the jurisdiction of the icc. However, it is important to emphasize that
Prisoners of War 567
even blatant non-compliance with this passive precautions obligation does

not release an attacking force from the obligation to implement active pre-
cautions in an effort to mitigate the accordant risk to civilians and civilian
property.
Geoffrey S. Corn – the views expressed are those of the author alone and do not
necessarily reflect the views of the U.S. Army or any other institution the author
is affiliated with
Bibliography
G.S. Corn, ‘Targeting, Distinction, and the Long War: Guarding against Conflation of
Cause and Responsibility’, 46 Israel Yearbook on Human Rights (2016).
G.S. Corn, J. Schoettler, ‘Targeting and Civilian Risk Mitigation: The Essential Role of
Precautionary Measures’, 223 Mil. L. Rev. 785 (2016).
(2016), pp. 173–174.
Prisoners of War. The concept of “prisoner of war” predates the 1949 GCs but,
relative to other humanitarian legal concepts, it was established only relatively
recently. Prior to some relevant provisions of the Hague Conventions of 1899
and 1907 [see: Hague Law], which were themselves hardly a comprehensive
treatment of prisoners of war, persons detained by an opposing belligerent
force were not protected by any specific status or rules, and they were suscep-
tible to the whims of that detaining power.
Following the experiences of World War i, the 1929 Geneva Convention
Relative to the Treatment of Prisoners of War was the first dedicated instru-
ment to attempt to enhance and codify rules protecting prisoners of war, by
supplementing the Hague Conventions [see: Italian Military Internees]. After
World War ii, with the passage of gciii [see: Geneva Convention iii] (which
replaces the 1929 Geneva Convention) and the subsequent entry into force of
api [see: Additional Protocol i], the applicable conventional law is now es-
tablished: a prisoner of war is a person who meets one of the definitions in
Article 4 gciii or Article 44 api. The icrc Customary ihl Study maintains
that it is now a customary norm that combatants are entitled to prisoner of
war status upon capture in international armed conflict, but only if they distin-
guish themselves from the civilian population while engaged in an attack [rule
106 icrc Customary ihl Study].
Prisoner of war status is recognised only in armed conflicts that are clas-
sified as international. Persons detained in the course of a non-international
568 Prisoners of War
armed conflict, or persons who otherwise do not meet the requirements of

gciii or api, do not qualify as prisoners of war (unless included in special
agreements between belligerent parties, pursuant to Common Article 3(3)
GCs) [see: Special Agreements]. The status of such other persons who are de-
prived of liberty during armed conflict is not treated here [see: Deprivation of
Liberty; Internment].
Prisoner of war status is determined by the nature of the detained person
in law, and is only conferred when specific requirements are met. The basic
requirement is that a potential prisoner of war must have fallen into the power
either of the enemy [art. 4(A) gciii] or of an “adverse party” [art. 44(1) api]
during the course of an international armed conflict. The use of the term “fall-
en into” as opposed to “captured” is intentional, as it includes persons who
become prisoners without being captured while engaged in fighting (e.g. fol-
lowing surrender). Once this requirement is met, the following categories of
persons are entitled to prisoner of war status, pursuant to the aforementioned
provisions:
– Combatants [see: Combatants];
– Other people who accompany the armed forces without being members
thereof, such as civilian members of military aircraft crews, war correspon-
dents, supply contractors, etc.;
– Crew members of merchant marine and civil aviation vessels;
– Inhabitants of a non-occupied territory, who take up arms to resist an invad-
ing enemy force (but only if they carry arms openly and respect ihl);
– Members of the armed forces of an occupied country; and
– Persons belonging to the aforementioned categories who have been re-
ceived by neutral or non-belligerent powers.
It should be noted that, when compared to gciii, the effect of the reduced
threshold provided by api for a person to qualify as a combatant has signifi-
cantly expanded the category of persons able to qualify as prisoners of war.
Article 5 gciii provides that, in cases of doubt as to a putative prisoner of
war status, s/he shall enjoy the protection of gciii until a competent tribu-
nal determines their status. This issue generated both controversy and litiga-
tion with respect to detainees held by the U.S. in Guantanamo Bay, Cuba, and
whether or not the dedicated Combatant Status Review Tribunals properly de-
termined the prisoner of war status of some detainees. In this regard, the U.S.
Supreme Court case of Hamdan is noteworthy inasmuch as the Court found
that the so-called military commissions violated Common Article 3 GCs for
failing to accord to the accused brought before them minimal judicial guaran-
tees [see: Common Article 3; Military Commissions].
Prisoners of War, Exchange of 569
Rules applicable to persons afforded prisoner of war status also provide spe-
cific rights and protections for their treatment and release, as well as relief
and assistance [see: Deprivation of Liberty, Treatment; Release]. These rights
and protections are important and, in practice, are highly valued by those who
benefit from them. Prisoners of war are not criminals, and prisoner of war sta-
tus is not punitive. The internment of prisoners of war is intended solely to
preclude their continued participation in, and to protect them from, on-going
hostilities. Conversely, the internment of prisoners of war is not subject to
prescribed procedures or justification. Restrictions placed on prisoners of war
should be understood in this light.
The relative dearth of international armed conflicts since the finalisation of
the Geneva Conventions in 1949 has resulted in limited jurisprudence on pris-
oners of war relative to other topics in ihl. However, the partial arbitral award
on prisoners of war by the Eritrea-Ethiopia Claims Commission, conducted
under the auspices of the pca, makes for interesting reading, and provides a
practical example of the applicable rules. The award, which recognised gciii
as “[t]he most obviously relevant source of law”, treats both customary and
conventional ihl, and determined numerous violations thereof.
Bibliography
D. Jinks, ‘The Declining Significance of pow Status’, 45(2) hilj (2004).
G. Noone et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, 50(1)
Naval Law Review (2004).
Prisoners of War, Exchange of. The notion of “prisoner of war” exchanges pre-
dates the codification of ihl. It is important to note that agreements to ex-
change prisoners of war do not require the cessation of hostilities, and as such,
exchanges of prisoners of war are distinct from the release and/or repatriation
of prisoners of war at the cessation of hostilities [see: Release; Repatriation;
Repatriation, Unjustified Delay of].
ihl does not impose a general obligation to exchange prisoners of war, and
defers to the will of the belligerents to agree to do so. For instance, the Lieber
Code of 1863 specified that “[t]he exchange of prisoners of war is an act of
convenience to both belligerents. If no general cartel [agreement] has been
concluded, it cannot be demanded by either of them” [art. 109 Lieber Code].
In its treatment of prisoners of war, the 1874 Brussels Declaration provides that
570 Prisoners of War, Exchange of
“[t]he exchange of prisoners of war is regulated by a mutual understanding

between the belligerent parties” [art. 30]. Similarly, the Oxford Manual of 1880
provides that prisoners of war may be released “in accordance with a cartel of
exchange” as agreed between belligerents.
Arguably, the case of seriously ill or wounded prisoners of war is an excep-
tion to this general position. The 1929 Geneva Convention required belligerents
“to send back to their own country, without regard to rank or numbers, after
rendering them in a fit condition for transport, prisoners of war who are se-
riously ill or seriously wounded”, subject to the belligerents determining by
agreement “the forms of disablement or sickness requiring direct repatria-
tion” [art. 68; see also: the Model Draft Agreement annexed to the 1929 Geneva
Convention]. Note that even this obligation is subject to the requirement of
an agreement between belligerents. It is, however, an obligation to repatriate,
and not one to exchange – and nowhere is reciprocity a stated precondition,
although it has frequently proven to be so in practice.
Article 68 of the 1929 Convention is reprised almost verbatim in Article 109
gciii, a provision which includes the notable novelty of providing that “[n]o
sick or injured prisoner of war who is eligible for repatriation […] may be repa-
triated against his will during hostilities”. Prior to gciii, the wishes of prison-
ers of war were not considered and, as the Korean War illustrated, prisoners of
war frequently prefer not to be exchanged or repatriated for fear of reprisal or
punishment upon returning home.
However, except for the obligation to repatriate ill or wounded prisoners of
war, the prevailing view remains that the exchange of prisoners of war during
on-going hostilities (i.e. neither release nor repatriation) is neither required by
nor codified in ihl.
Agreements to exchange prisoners of war can be of either general or more
limited application. One example of the former is taken from the agreements
between France, Britain, and Germany during World War i, which stipulated
that “[a]ll pows (and internees) were to be exchangeable ‘head for head and
rank for rank’ after 18 months’ confinement”.
During World War ii it is notable (and regrettable) that, in the absence of
any agreements between them, no prisoner of war exchanges of a general
nature were carried out between either Germany and the Soviet Union, or
the U.S. and Japan, until after the cessation of hostilities. Neither Japan nor the
Soviet Union had ratified the 1929 Convention. There were, however, numer-
ous agreements between other belligerents that were concluded and effected
during that conflict. The first prisoner of war exchange of World War ii pursu-
ant to an agreement (12 January 1942) occurred on 8 April 1942 between the
Private Military and Security Companies 571
U.K. and Italy. Also, in March 1942, the U.S. and Germany concluded an agree-
ment based on the model annexed to the 1929 Convention.
More recently, during the wars in the former Yugoslavia, the parties to the
conflict in Bosnia-Herzegovina established “exchange commissions”. Regretta-
bly, these commissions highlighted the potential for abusing prisoner of war
exchanges. On occasion, civilians were arrested for use in prisoner of war ex-
changes, or prisoners of war were traded for fuel or goods. Needless to say, such
exchanges are inconsistent with the spirit of ihl.
Private Military and Security Companies. Private Military and Security

Companies (pmscs) can be defined as “[p]rivate business entities that pro-
vide military and/or security services” [The Montreux Document on Per-
tinent International Legal Obligations and Good Practices for States Re-
lated to Operations of Private Military and Security Companies during
Armed Conflict (2008), preface, para. 9]. These entities are defined by what
they do, and not by how they describe themselves. Military and security
services can include activities such as “armed guarding and protection of per-
sons and objects, such as convoys, buildings and other places; maintenance
and operation of weapons systems; prisoner detention; and advice to or train-
ing of local forces and security personnel” [Montreux Document, preface,
para. 9]. Many pmscs provide such services in places where armed conflicts
are occurring.
The phenomenon of private actors following armed forces to provide ser-
vices is not new. The 1874 Brussels Declaration (which never came into force)
provided that “sutlers” and “contractors” could be prisoners of war [art. 34 1874
Brussels Declaration], as did the 1929 Geneva Convention on Prisoners of War
[art. 81 1929 Geneva Convention]. Sutlers and contractors provided catering
and basic logistical support for armed forces. However, the sheer number of
these traditional contractors and the expansion of their roles to include se-
curity provision, combined with cases in which States contracted companies
to fight for them around the turn of the twenty-first century, led to sustained
debate regarding the use of pmscs.
pmscs as an industry rely heavily on their right to use force in self-defence
in order to carry out their obligations under their contracts. In light of this,
they must be viewed as an actor likely to use force in situations of armed
conflict. However, in international armed conflicts, only combatants may
572 Private Military and Security Companies
lawfully use force against the opposing armed forces with impunity. pmscs are,
generally, not considered to be combatants, as they are usually not incorporat-
ed into national armed forces pursuant to Article 4 gciii [see: Combatants].
Rather, they are widely considered to have the status of civilians under ihl
[see: Civilians]. Unlike combatants, however, civilians may not, with impunity,
directly participate in hostilities [see: Direct Participation in Hostilities]. In
this regard, it has been argued that some of the activities with which pmscs
have been tasked may nevertheless lead them to directly participate in hostili-
ties. While the history of combatant immunity shows that that concept was
not developed in order to protect civilians, in effect it helps to preserve the
fundamental distinction between civilians and combatants and to diminish
the likelihood that civilians will be directly targeted in armed conflicts [see:
Distinction].
There have been debates as to whether pmscs should be banned altogether
or simply regulated. In this regard, it is relevant that pmscs have been described
by some as mercenaries [see: Mercenaries]. However, most pmscs would not
meet the legal definition of mercenaries under Article 47 api or the similar
definition in the International Convention against the Recruitment, Use, Fi-
nancing and Training of Mercenaries. In any case, under ihl, the consequence
of being a mercenary is that the person does not have the right to prisoner of
war status, thereby putting them on par with civilians. The mercenary label
thus cannot serve as a regulatory tool for the pmsc industry.
The following regulatory efforts (including self-regulatory) are noteworthy.
First, the Montreux Document sets down international legal obligations and
good practices relating to contracting States, home States, and the States in
whose territory pmscs operate, in particular in times of armed conflict. It has
been signed by over 50 States and several international organizations. Second,
the private security industry has developed an International Code of Conduct
for Private Security Service Providers, which companies can sign, and whose
aim is to have an oversight body and complaints mechanism. Finally, in 2010,
the un Human Rights Council mandated an Open-ended Intergovernmental
Working Group “to consider the possibility of elaborating an international
regulatory framework, including, inter alia, the option of elaborating a legally
binding instrument on the regulation, monitoring and oversight of the activi-
ties of private military and security companies […]” [Human Rights Council,
Resolution 15/26 (2010), para. 4]. To date, no such framework has been agreed
but the mandate has been renewed.
Property, Destruction and Appropriation/Seizure of 573
Bibliography
L. Cameron, V. Chetail, Privatising War: Private Military and Security Companies under
F. Francioni, N. Ronzitti, War by Contract: Human Rights, Humanitarian Law, and Pri-
vate Contractors (2011).
Property, Destruction and Appropriation/Seizure of. ihl prohibits the de-

struction or seizure of property belonging to an adversary, unless such destruc-
tion or seizure is required by imperative military necessity. Destruction refers
to any partial or total damage of public or private protected property, while
seizure (or appropriation) includes acts of taking such property by force [see
also: Requisitions].
This prohibition was first codified in the 1863 Lieber Code and further explic-
itly enshrined in the Hague Regulations of 1899 and 1907 [art. 15 Lieber Code;
art. 23(g) 1907 Hague Regulations]. It is considered to be a norm of custom-
ary international law applicable in both international and non-international
Under Article 8(2)(b)(xiii) icc Statute, violations of Article 23(g) of the 1907
Hague Regulations give rise to individual criminal responsibility for the war
crime of “destroying or seizing the enemy’s property unless such destruction or
seizure be imperatively demanded by the necessities of war” in international
armed conflict. The same war crime of “destroying or seizing the property of an
adversary” when committed in a non-international armed conflict is regulated
under Article 8(2)(e)(xii) icc Statute. The difference in the wording (“enemy”
and “adversary”) is a technical semantic reflection of the different nature of
international armed conflicts and non-international armed conflicts [O. Triff-
terer, K. Ambos (eds.), The Rome Statute of the International Criminal Court:
A Commentary (2016), p. 568].
Extensive destruction or appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly, is a grave breach of the GCs
[art. 50 gci; art. 51 gcii; art. 147 gciv; see: Grave Breaches]. Today this regime
reflects customary international law applicable exclusively in the context of
international armed conflict [rules 50, 156 icrc Customary ihl Study].
The relevant provisions of the GCs combine two separate grave breaches: (i)
the destruction of property, and (ii) the appropriation of property [Judgment,
Brđanin, icty, Trial Chamber, para. 584]. These serious violations of ihl have
been widely incorporated in national criminal codes, as well as in statutes of
international tribunals as a war crime in international armed conflict [e.g. art.
574 Property, Destruction and Appropriation/Seizure of
2(d) icty Statute; art. 8(2)(a)(iv) icc Statute]. To constitute a grave breach,
an act of destruction or appropriation needs to meet the following elements
cumulatively: (1) the property destroyed or appropriated was protected un-
der one or more GCs; (2) the destruction or appropriation was not justified
by military necessity; and (3) it was extensive and carried out wantonly [art.
8(2)(a)(iv) icc Elements of Crimes; Judgment, Kordić and Čerkez, icty, Trial
Chamber, paras. 335–341].
The GCs contain two sets of rules that govern the protection of property in
the power of a hostile party [Judgment, Naletilić and Martinović, icty, Trial
Chamber, para. 575; Brđanin, para. 586]. The first one concerns the general pro-
tection afforded by the GCs, regardless of its location. Such property includes
civilian hospitals and their property [art. 18 gciv], fixed establishments and
mobile medical units [arts. 19, 33 gci], the real and personal property of aid
societies [art. 34 gci], hospital ships [art. 20 gci; arts. 22, 24, 25 gcii], means
used for medical and similar transport, including medical aircrafts, convoys of
vehicles, hospital trains, and small rescue craft [arts. 35, 36 gci; arts. 38, 39 gcii;
arts. 21, 22 gciv]. The second regime is enshrined in Article 53 gciv, which
protects individual and collective, public or private, movable or immovable,
property situated in occupied territory from destruction, except “where such
destruction is rendered absolutely necessary by military operations”. Property
destroyed in the course of conduct of hostilities, however, is not protected by
the grave breaches regime of Article 147 gciv [1958 icrc Commentary gciv,
p. 600; Kordić and Čerkez, para. 347].
A justification of military necessity can be invoked exclusively in situations
where ihl explicitly provides for such an exception of destroying or seizing
the property, in addition to the requirement that the means deployed to ad-
dress the military need must be lawful under ihl [Judgment, Bemba, icc,
Trial Chamber, para. 123; Judgment, Katanga, icc, Trial Chamber, para. 894;
see: Military Necessity]. In all other scenarios, the destruction or appropria-
tion of property is unlawful. Examples of unlawful destruction include delib-
erate destruction of towns, villages, and dwellings or businesses belonging to
protected persons by torching and shelling such property, and setting it on fire
[Brđanin, para. 600; Judgment, Blaškić, icty, Trial Chamber, para. 234]. Pillage
(or plunder or spoliation) is, for example, a form of unlawful appropriation
[Judgment, Simić et al., icty, Trial Chamber para. 99; Judgment, Delalić et al.,
icty, Trial Chamber, paras. 590–591; 1958 icrc Commentary gciv, p. 244; see:
Pillage].
The extensiveness of the conduct is assessed on the basis of the circum-
stances of the case. Both quantitative and qualitative criteria may be applied
Property, Destruction and Appropriation/Seizure of 575
to the acts in question. The quantitative factors include the amount of prop-
erty destroyed or appropriated, while the qualitative indicators can be satisfied
by a single act of destruction or appropriation of a large magnitude target-
ing a property that is of a “sufficiently great” value such as a civilian hospital
[Blaškić, para. 157; Naletilić and Martinović, para. 614].
For the destruction or appropriation to be committed wantonly, it is re-
quired that such act was deliberate in nature, with the intention to destroy
or appropriate the property or to be committed “in reckless disregard of the
likelihood of its destruction” [Brđanin, para 589; Kordić and Čerkez, para. 346].
This element must also be determined based on the factual circumstances of
a specific case.
The war crime of destroying or seizing property of an adversary, however,
does not require underlying acts to be extensive in nature and carried out
wantonly. Instead, the material elements of this war crime require that the
perpetrator destroyed or seized property of an adversary that was protected
under ihl at the time, and that such destruction or seizure was not required
by military necessity. The term “adversary” (or “enemy”) includes any per-
son or entity that is linked to a hostile party to the armed conflict [Katanga,
para. 892]. Elements of the crime include public or private, movable or im-
movable property of such persons or entities, including those participating in
hostilities, as long as the targeted property does not meet the definition of a
military objective under Article 52(2) api, or does not fall within the excep-
tions of attacking civilian objects in accordance with the principle of propor-
tionality under Article 51 api [Katanga, para. 893; see: Military Objectives;
Proportionality].
Given the relatively high threshold of gravity (in addition to the existence
of occupation where applicable), it seems more likely that prosecutors would
charge unlawful destruction or appropriation of protected property commit-
ted in the context of an international armed conflict under similar legal bases,
such as the war crime of destruction or seizure of the property of an adversary
[art. 8(2)(b)(xiii) icc Statute] instead of a grave breach.
Jelena Plamenac – the views expressed are those of the author alone and
with
Bibliography
D. Fleck, ‘Shortcomings of the Grave Breaches Regime’, 7(4) jicj (2009).
R.S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure
and Evidence (2001).
576 Property, Private
Property, Private. The concept of private property and related property rights
in ihl derives from national legal systems and is enshrined in core ihl trea-
ties. Inspired by the protective rules on private property laid down in the 1863
Lieber Code, the first ihl instruments that codified this protection at the in-
ternational level were the Hague Regulations of 1899 and 1907. Subsequently,
the 1949 GCs and 1977 APs, as well as treaties such as the 1954 Convention
for the Protection of Cultural Property in the Event of Armed Conflict, further
developed the corpus of law regulating the protection of private property in
situations of armed conflict, in particular protected property that falls into the
hands of the enemy.
Private property is defined in conventional terms and includes both mov-
able and immovable objects belonging to private individuals or collectives.
The property of municipalities and institutions dedicated to religion, charity,
education or the arts or sciences, regardless of ownership, is also considered
private property [art. 56(1) 1907 Hague Regulations].
Belligerent parties to both international and non-international armed
conflicts have an obligation to respect private property belonging to an ad-
versary at all times [e.g. art. 46(1) 1907 Hague Regulations] and refrain from
destroying or seizing such property that is within the geographical scope of the
armed conflict, “unless such destruction or seizure be imperatively demanded
by the necessities of war” [art. 23(g) 1907 Hague Regulations; arts. 52–54 api;
rules 50–52 icrc Customary ihl Study; see: Property, Destruction and Ap-
propriation/Seizure of; Military Necessity]. Personal property is protected
from pillage in all circumstances [arts. 28, 47 1907 Hague Regulations; art. 33
gciv; art. 4(2)(g) apii; see: Pillage]. In the context of an international armed
conflict, the property of protected persons under the GCs is also protected
from reprisals [art. 33 gciv], and confiscation [e.g. art. 18 gciii; art. 97 gciv;
see: Requisitions].
In addition to this general protection, ihl treaties also contain more spe-
cific rules that regulate situations of destruction or seizure of private property
located in occupied territory. gciv, similarly to the 1907 Hague Regulations,
recognizes the military reality of armed conflicts by prohibiting the destruc-
tion of private property in occupied territory “except where such destruction
is rendered absolutely necessary by military operations” [art. 53 gciv]. With
respect to various forms of seizure, any kind of seizure that entails the perma-
nent taking of the private property without some form of compensation to an
owner is unlawful [art. 46(2) 1907 Hague Regulations].
Jelena Plamenac – the views expressed are those of the author alone and do not
Proportionality 577
Bibliography
L. Brilmayer, G. Chepiga, ‘Ownership or Use? Civilian Property Interests in Interna-
tional Humanitarian Law’, 49(2) hilj (2008).
D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied
Territories (2002).
Proportionality. Under ihl, direct attacks against civilians and civilian objects
are prohibited. According to Article 48 api, all parties to the armed conflict
“shall direct their operations only against military objectives [art. 48 api; see:
Distinction; Military Objectives]. ihl also prohibits indiscriminate attacks,
that is attacks that do not distinguish between military targets and civilian ob-
jects [see: Indiscriminate Attacks]. Attacks against legitimate military targets
are therefore allowed under ihl, in so far as they are proportionate.
The principle of proportionality finds its roots in the Catholic doctrine of
“double-effect” of the middle-ages [G. Blum, ‘On a Differential Law of War’,
52(1) hilj (Winter 2011), p. 189; K. Watkin, ‘Assessing Proportionality: Moral
Complexity and Legal Rules’, yihl (2005), p. 26; C. Byron, ‘International Hu-
manitarian Law and Bombing Campaigns: Legitimate Military Objectives and
Excessive Collateral Damage’, 13 yihl (2010), p. 191] and was codified more re-
cently in Article 51(5)(b) api, which defines as indiscriminate “an attack which
may be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated” (emphasis
added). Article 57(2)(iii) api further requires those who plan or decide upon
an attack to refrain from deciding to launch any attack which may be dispro-
portionate. Conduct violating the principle of proportionality is considered
to be a grave breach of Article 85(3)(b) api and a war crime in international
armed conflict, pursuant to Article 8(2)(b)(iv) icc Statute [see: Grave Breach-
es; War Crimes]. While no explicit reference to the principle of proportionality
can be found in apii, relevant to non-international armed conflict, according
to the icrc Customary ihl Study, State practice establishes that this principle
amounts to a norm of customary international law applicable to both inter-
national and non-international armed conflicts [rule 14 icrc Customary ihl
Study].
An attack is proportionate, and therefore legitimate, if the loss of civilian
life or damage to civilian property is not excessive compared to the concrete
and direct military advantage anticipated. As recognized by the Supreme
Court of Israel, such assessment is a “values based test”, which is “based upon a
578 Proportionality
balancing between conflicting values and interests”, and “performing that bal-
ance is difficult” [Judgment, Targeted Killings Case, Israeli Supreme Court, pa-
ras. 42–46; see also: Judgment, Blaškić, icty, Trial Chamber, paras. 180, 417–417;
Judgment, Galić, Trial Chamber, paras. 57–58].
The definitions of “excessive” and “military advantage” are necessarily sub-
jective and subject to debate. Excessive encapsulates the idea that the attack
must be proportionate, therefore not causing more collateral damage than
necessary [Watkin, p. 8; 1987 icrc Commentary api, paras. 2204–2208]. In fact,
the initial language proposed in 1973 for api indicated that the attack must
be “not disproportionate to the direct and substantial military advantage an-
ticipated” [1987 icrc Commentary api, para. 2204]. Suggestions that Article
51(5)(b) api authorizes any type of attack, in so far as it does not cause ex-
cessive loss or damage in relation to the military advantage expected, or that
high civilian losses or damage may be justified if the military advantage at
stake is very high, have been put forward [1987 icrc Commentary api, para.
1979–1980]. Both suggestions are incorrect. The means of the attack must not
be “disproportionate in relation to the objective of the attack, but […] suited
to destroying only that objective” [1987 icrc Commentary api, paras. 1979,
2207], and the incidental losses or damage should never be extensive [1987
icrc Commentary api, para. 1980]. As regards “military advantage”, the icrc
notes that several States take the position that the expression is not limited to
isolated or particular attacks, but refers to the military advantage anticipated
from the military attack as a whole. In fact, Article 8(2)(b)(iv) icc Statute pro-
hibits “intentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage to civilian ob-
jects or widespread, long-term and severe damage to the natural environment
which would be clearly excessive in relation to the concrete and direct overall
military advantage anticipated” (emphasis added) [see also: Watkin, p. 19]. As
regards the expression “concrete and direct”, according to the commentaries
to the APs, this means that the military advantage must be “substantial and
relatively close, and that advantages which are hardly perceptible and those
which would only appear in the long term should be disregarded” [1987 icrc
Commentary api, para. 2209; Watkin, pp. 17–19].
According to some authors, factors that must be considered when deciding
on an attack and assessing its proportionality include: the “military importance
of the military objective, the density of the civilian population in the targeted
area, the likely effects of the attack, including the possible release of hazardous
substances”; or the consequences of targeting, for example, an electric power
plant for the population in the long run; the type of weapons available for the
attack and their accuracy; the time of the attack, which may be relevant, for
Protected Objects 579
example, when targeting ammunition factories where civilians work, and the
security of the military forces carrying out the attack [A.P.V. Rogers, Law on
the Battlefield (1996), p. 19; Byron, pp. 194–195; M.N. Schmitt, ‘Precision attack
and International Humanitarian Law’, 87 irrc (September 2005), p. 457]. Im-
pacts on the natural environment must also be taken into consideration [see:
Environment; see also: rule 43 icrc Customary ihl Study; Advisory Opinion,
Legality of the Threat or Use of Nuclear Weapons, icj, para. 30; and Galić, para.
58].
Maddalena Ghezzi – the views expressed are those of the author alone and do
Cambodia
Bibliography
G. Blum, ‘On a Differential Law of War’, 52(1) hilj (2011).
C. Byron, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Mili-
tary Objectives and Excessive Collateral Damage’, 13 yihl (2010).
A.P.V. Rogers, Law on the Battlefield (1996).
M.N. Schmitt, ‘Precision Attack and International Humanitarian Law’, 87 irrc (2005).
K. Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’, yihl (2005).
Protected Objects. ihl protects civilian objects in international and non-in-

ternational armed conflicts [rules 9–10 icrc Customary ihl Study]. As a re-
sult, civilian objects shall not be attacked or made the object of reprisals [arts.
49(1), 52(1) api; rule 147 icrc Customary ihl Study; see: Civilian Objects; At-
tacks]. They can only be the object of attack when and for such time as they
become military objectives because of their use to make an effective contribu-
tion to military action [art. 52(2) api; rule 10 icrc Customary ihl Study; see:
Military Objectives].
Article 52(1) api, applicable to international armed conflicts, defines pro-
tected objects as “all objects which are not military objectives”. The same def-
inition is used in treaty law applicable to non-international armed conflicts
[art. 2(5) Protocol ii ccw; art. 2(7) Amended Protocol ii ccw; art. 1(4) Proto-
col iii ccw; see: Convention on Certain Conventional Weapons (1980)]. This
definition, which according to State practice, includes towns, cities, villages,
residential areas, buildings, houses, dwellings, schools, historic monuments,
places of worship, cultural property, hospitals, medical establishments and
units, civilian means of transportation and the natural environment, has also
become part of customary international law applicable to all armed conflicts
[rule 9 icrc Customary ihl Study].
580 Protected Objects
The question arises as to how to characterize an object in case of doubt

as to its civilian character. This is particularly relevant in relation to all those
objects normally used for civilian purposes, which are located in the vicinity
of the front line. Article 52(2) api, applicable to international armed conflicts,
answers this question by establishing that “[i]n case of doubt as to whether
an object which is normally dedicated to civilian purposes, such as a place of
worship, a house or other dwelling or a school, is being used to make an effec-
tive contribution to military action, it shall be presumed not to be so used”.
The same civilian character presumption is included in treaty law applicable
to non-international armed conflict [art. 3(8)(a) Amended Protocol ii ccw].
Although a number of military manuals also include the civilian character
presumption [rule 10 icrc Customary ihl Study], its customary status is ob-
jected to by the U.S. and Israel on two grounds. First, it shifts the burden of
establishing the specific use of the relevant object from the party controlling
it (the defender) to the party lacking such control (the attacker) [U.S. Depart-
ment of Defense, Final Report to Congress on the Conduct of the Persian Gulf
War (1992), para. 752]. Second, its scope of application should be limited to
cases of “significant doubt” and therefore it should not be applicable to cases
in which the field commander believes that there is only a small possibility of
being mistaken [J.-M. Henckaerts, L. Doswald-Beck, Customary International
Humanitarian Law, Vol. ii (2005), p. 244].
In light of this situation, the icrc has limited its findings on the alleged
customary status of the civilian character presumption. As a result, what can
be considered as part of customary international law in international armed
conflicts beyond any objection is: (i) the prohibition against assuming that any
object that appears dubious may be subject to lawful attack; and (ii) the obli-
gation to make a careful analysis in doubtful cases, under the circumstances
ruling at the time, as to whether there are sufficient indications to warrant an
attack [rule 10 icrc Customary ihl Study].
In addition to civilian objects, strictly speaking, api and apii offer special
protection in international armed conflicts and non-international armed con-
flict, respectively, to a set of specific objects, which by their very nature or pur-
pose deserve to be safeguarded from the effects of hostilities. api provides for
special protection of: (i) historic monuments, works of art or places of worship
which constitute the cultural or spiritual heritage of peoples [art. 53 api; rule 38
icrc Customary ihl Study; see: Attacks against Historic Monuments, Works
of Art and Places of Worship]; (ii) works or installations containing danger-
ous forces, namely dams, dykes and nuclear electrical generating stations [art.
56(1) api; rule 42 icrc Customary ihl Study; see: Attacks against Works or
Installations Containing Dangerous Forces]; (iii) objects indispensable to
Protected Objects 581
the survival of the civilian population, such as foodstuffs, agricultural areas

for the production of foodstuffs, crops, livestock, drinking water installations
and supplies and irrigation works [art. 54 api; rules 53–54 icrc Customary
ihl Study; see: Attacks against Objects Indispensable to the Survival of the
Civilian Population]; and (iv) the natural environment [arts. 35(3), 55(1) api;
rules 44–45 icrc Customary ihl Study; see: Environment]. In turn, apii, ap-
plicable to non-international armed conflicts, provides for special protection
of the first three categories of objects for which special protection is provided
for in api [arts. 14, 15, 16 apii]. As a result, only the specific protection of the
natural environment against widespread, long-term and severe damage is not
included in apii.
Treaty law and customary international law have developed the protection
of cultural objects and places of worships in international armed conflicts and
non-international armed conflicts so as to also include buildings dedicated to
religion, art, science, education or charitable purposes [rule 38 icrc Custom-
ary ihl Study; see: Hague Convention for the Protection of Cultural Property
(1954) and its Protocols]. Customary international law also includes the pro-
tection in all types of armed conflicts of objects indispensable to the survival
of the civilian population and works and installations containing dangerous
forces [rules 42, 54 icrc Customary ihl Study].
The special protection of the natural environment against widespread, long-
term and severe damage has also become part of customary international law
in international armed conflict with regard to the use of conventional weapons
[rule 45 icrc Customary ihl Study; see: Environment]. The situation is less
clear in relation to the use of nuclear weapons, as a result of the objection
by France, United Kingdom and United States [rule 45 icrc Customary ihl
Study; see: Nuclear Weapons]. Concerning non-international armed conflicts,
the customary status of the special protection of the natural environment is
particularly relevant given the absence of any explicit reference to it in apii.
Nevertheless, despite the trend towards enhancing environmental protection
and increasing the regulation of non-international armed conflicts, there is no
certainty yet on this issue [rule 45 icrc Customary ihl Study].
Articles 59 and 60 api also provide for the establishment in international
armed conflicts of non-defended localities and demilitarized zones. The con-
tent of these provisions is part of customary international law applicable in
both types of armed conflicts [rules 35–36 icrc Customary ihl Study; see:
Attacks against Non-Defended Localities and Demilitarised Zones; Specially
Protected Zones].
Lastly, Articles 62 to 64 api provide for the special protection in interna-
tional armed conflicts of buildings and materiél of civil defense organizations
582 Protected Persons
[see: Civil Defence], which exclusively perform the humanitarian tasks pro-

vided for in Article 61 api. Their special protection is due to their role in
favour of the civilian population by: (i) protecting it against the dangers of the
conflict; (ii) helping it to recover from the effects of hostilities or disasters; and
(iii) providing it with the conditions necessary for its survival.
Hector Olasolo, Lucia Carcano – the views expressed are those of the authors
affiliated with
Bibliography
R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008).
N. Melzer, International Humanitarian Law. A Comprehensive Introduction (2016).
L. Moir, The Law of Internal Armed Conflict (2004).
H. Olasolo, Unlawful Attacks in Combat Situations (2007).
Protected Persons. The expression protected persons is generally used to refer

to persons who are protected and/or have a specific protected status in Geneva
Law [e.g. Decision on the Defence Motion for Interlocutory Appeal on Jurisdic-
tion, Tadić, icty, Appeals Chamber, paras. 67, 81; Judgment on the Appeal of
Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the
Jurisdiction of the Court in Respect of Counts 6 and 9”, Ntaganda, icc, Appeals
Chamber, paras. 21, 46–51; see: Geneva Law].
In the context of international armed conflict, ihl identifies the follow-
ing main categories of protected persons: (i) prisoners of war [see: Prisoners
of War]; (ii) civilians [see: Civilians]; and (iii) the wounded, sick, and ship-
wrecked [see: Wounded and Sick; Shipwrecked].
One of the principal considerations in relation to this categorisation, as well
as the delineation of protected persons, is the status of individuals to be pro-
tected, in particular, whether they are combatants or civilians and whether
they are in enemy hands [see: Combatants; Civilians]. Indeed, prisoners of
war, protected under gciii, are mainly combatants who have fallen into the
power of the enemy [art. 4A gciii; 1960 icrc Commentary gciii, pp. 50–51;
see also: art. 44(1) api]. Civilians, protected under gciv, are persons who find
themselves “in the hands of a Party to the conflict or Occupying Power of
which they are not nationals” [art. 4 gciv; 1958 icrc Commentary gciv, pp.
45–47]. gciv defines and literally refers to such civilians as “protected persons”
to whom its protective regime is applicable [art. 4 gciv et seq]. This means that
gciv does not accord protected status to the State’s own nationals, although,
Protected Persons 583
in the context of the war in the former Yugoslavia, the icty held that the cru-
cial test may be whether the victims owe allegiance to a party to the conflict
in whose hands they find themselves, and that this may depend on the bonds
of ethnicity, rather than the formal bonds of nationality [Judgment, Blaškić,
icty, Appeals Chamber, paras. 172–182, 634; Judgment, Kordić and Čerkez,
icty, Appeals Chamber, paras. 328–330; see also: Judgment, Prlić et al., icty,
Appeals Chamber, paras. 348–360 (affirming the Trial Chamber’s ruling that
gciv also protects members of armed forces who were placed in detention by
their own armed forces due to their perceived allegiance to the opposing party
to the conflict)]. Be that as it may, gciii and gciv focus on the protection of
combatants and civilians who are in the power of an adversary party to a con-
flict since violence – and potential abuses – during armed conflict are typically
directed against, or inflicted on, enemy combatants or enemy civilians [Nta-
ganda, para. 57]. This stands in stark contrast to ihrl, which is applicable to
all persons irrespective of their status [see: International Human Rights Law].
Nonetheless, the categorisation and delineation of protected persons do
not always correspond to the aforementioned distinctions on the basis of their
status. With regard to civilians, api has expanded the scope of civilians to be
protected and affords protections to civilians in general, without requiring that
they be in the hands of an enemy State [art. 50(1) api; 1987 icrc Commentary
api, paras. 1908–1909].
With respect to the wounded, sick, and shipwrecked, GCs initially estab-
lished two different regimes: one for the military wounded, sick, and ship-
wrecked stipulated in gci and gcii, and the other for the civilian wounded,
sick, and shipwrecked stipulated in gciv, the latter being more rudimentary.
However, neither of these regimes requires that wounded, sick, or shipwrecked
persons be in the hands of the adversary, in order for them to be protected.
Rather, these regimes have provided protections without any adverse distinc-
tion, in particular, of nationality [arts. 12–13 gci; arts. 12–13 gcii; arts. 13, 16
gciv (contained in Part ii of gciv, which exceptionally sets out general pro-
tective rules applicable to the entire populations in the countries in conflict,
regardless of whether they are in the hands of an enemy State); 2016 icrc
Commentary gci, para. 1451]. Moreover, api expanded the protection granted
to the sick, wounded, and shipwrecked in the GCs and abandoned the distinc-
tion between military persons and civilians within this category of protected
persons [arts. 8–34 api].
In the context of non-international armed conflict, ihl protects people on
the basis of their activities rather than their status. The law on non-interna-
tional armed conflicts, codified mainly in Common Article 3 GCs and apii,
affords minimum but fundamental protections to all those who do not, or no
584 Protected Persons
longer, take active part in hostilities [2016 icrc Commentary, para. 545; Judg-
ment, Delalić et al. (Čelebići), icty, Appeals Chamber, para. 420], including
the wounded, sick, and shipwrecked, detainees [see: Internment; Assigned
Residence; Deprivation of Liberty], and civilians not directly participating in
hostilities [see: Direct Participation in Hostilities]. Such protection primar-
ily includes the prohibition of direct attack, as well as guarantees of humane
treatment and fair trial, all of which are customary in both international and
non-international armed conflicts [Common Article 3 GCs; arts. 4–6, 7–13, 17
apii; rules 1, 25–29, 47, 87–105, 109–111, 129 icrc Customary ihl Study].
Recently, considering a case of rape and sexual slavery of child soldiers, the
Appeals Chamber of the icc held, referring to the icrc Commentary, that
Common Article 3 GCs protects members of armed forces against violations
committed by the armed force to which they belong. It further held that, both
in the context of international and non-international armed conflict, there is
no general rule in ihl which categorically excludes members of armed forces
from protection against violations – including the crimes of rape and sexual
slavery – committed by members of the same armed force. On this basis, as
well as the wording and drafting history of relevant provisions, the icc Appeals
Chamber concluded that the war crimes of rapes and sexual slavery under Ar-
ticle 8(2)(b)(xxii) and (e)(vi) icc Statute do not require that victims be taking
no active part in hostilities in the sense of Common Article 3 GCs (let alone,
be protected persons in terms of GCs). This conclusion reflects an increasingly
liberal interpretation of ihl influenced by ihrl. However, one could opine
that this ruling effectively deviates from the framework of ihl, as it appears to
extend the protection to virtually anyone affected by armed conflicts, irrespec-
tive of their participation in hostilities, which is the baseline consideration in
assessing the applicability of ihl rules [Ntaganda, paras. 16, 51, 60–66, 69; 2016
icrc Commentary gci, para. 547].
In both international and non-international armed conflicts, attention
should also be given to certain specific categories of persons, including medi-
cal and religious personnel [see: Medical Personnel; Religious Personnel],
women [see: Women], children [see: Children], the elderly, disabled persons
[see: Disability], journalists [see: Journalists; War Correspondents], and UN
peacekeepers [see: Peacekeeping]. Although these are not the main categories
of protected persons envisaged in GCs and APs, special rules have been devel-
oped for these specific categories of persons in GCs, APs, and other supple-
mentary treaties in order to give them tailored protection by virtue of their
particular functions or their level of vulnerability.
Saeko Kawashima – the views expressed are those of the author alone and do
Protecting Powers 585
Bibliography
D. Fleck (ed.), The Handbook of International Humanitarian Law (2008), pp. 80–86,
95–96, 237–417, 627.
T. Ruys, C. De Cock, ‘Protected Persons in International Armed Conflicts’, in N.D. White,
C. Henderson (eds.), Research Handbook on International Conflict and Security
Law (2013).
S. Verhoeven, ‘The Protection of Civilians and Civilian Objects against Hostilities’, in
J. Wouters, P. De Man, N. Verlinden, Armed Conflicts and the Law (2016).
S. Verhoeven, H. Sagon, ‘Protected Persons in International Humanitarian Law’, in
J. Wouters, P. De Man, N. Verlinden (eds.), Armed Conflicts and the Law (2016).
Protecting Powers. Traditionally, the concept of protecting powers has been

resorted to in international law when two States cease to maintain diplomatic
relations with one another. In this context, the need arises for a third State to
serve as a protecting power that secures the interests of one or more conflict-
ing States and their nationals. In order for a protecting power to be designated,
all States involved must agree to such a process. The actual appointment of a
protecting power is based upon the request of a State and approval of the other
State and the protecting power(s).
The institution of protecting powers was formally regulated for the first
time in the 1929 Geneva Convention on Prisoners of War [arts. 31, 39, 42–44, 59,
62, 65–66, 77, 86–87 1929 Geneva Convention]. During the Diplomatic Confer-
ence, the concept of protecting powers was extensively discussed. States acting
as protecting powers during World War i reaffirmed the necessity of adopting
a clear definition of the tasks of a protecting power. However, this conclusion
neither made the resort to protecting powers obligatory by belligerents, nor
provided any protection of such type for civilians in enemy hands [Henry-
Dunant Institute/UNESCO, International Dimensions of Humanitarian Law
(1988), p. 267].
In World War ii, however, a large number of countries were embroiled in
hostilities, which led to the absence of powerful neutral States with the capac-
ity to act as protecting powers [H.S. Levie, ‘Prisoners of War and the Protect-
ing Power’, 55 ajil (1961), p. 33]. This increased the likelihood of one neutral
State acting as protecting power for several conflicting countries due to the
small number of neutral States available. The practice proved to be successful
in terms of uniformity and simplicity of administration, as it enabled the pro-
tecting power to have full observance of actions by both belligerents. This was
evident when Switzerland was designated as the protecting power for many
belligerents on both sides of the conflict [Levie, p. 35].
586 Protecting Powers
Lessons learnt from World War ii led to the conclusion of the 1949 GCs,
which extended the principle of supervision by the protecting power [arts. 11,
16, 23, 48 GCI; arts. 11, 19, 49 gcii; arts. 11, 23(3), 56(3), 60(4), 62(1), 63(3), 65(2),
66(1), 68(1), 69, 71(1), 72(3), 73(3), 75(1), 77(1), 78(2), 79(4), 81(6), 96(5), 100(1), 101,
104(1), 105(2), 107(1), 120(1), 122(3), 128 gciii; arts. 12, 14, 23(3), 30, 35(3), 39(3),
42(2), 49(4), 52(1), 55(3), 59(4), 61(1), 71, 72(2), 74, 75, 76, 83(2), 96, 98, 102, 105,
108, 111, 123(5), 129(3), 137(1), 143, 145 gciv]. The functions of protecting powers
were defined in more detail than those mentioned in the 1929 Convention and
supervision by the protecting powers was made obligatory for the first time.
However, under gci and gcii, the responsibilities of the protecting powers
might still be restricted due to “imperative military necessities” [art. 8 gci; art.
8 gcii]. Yet, such restrictions can only be “exceptional and temporary” [art. 8
gci; art. 8 gcii; Henry-Dunant Institute/UNESCO, p. 269]. Furthermore, the
problem of the limited number of neutral States available to act as protecting
powers was solved in Common Article 10 gci to gciii and Article 11 gciv,
which provide for the designation of substitutes for the protecting powers and,
in certain situations, the icrc may offer to do so.
The functions of protecting powers include conducting visits to prisoners
of war/interned protected persons, in respect of which delegates of the pro-
tecting power must be enabled to interview them without witnesses, as well
as supervising relief missions and evacuating protected persons [arts. 73, 126
gciii; arts. 6, 49, 76, 143 gciv; see: Prisoners of War; Protected Persons]. In
addition, protecting powers may receive complaints submitted by prisoners
of war/protected persons with regard to their conditions of captivity/intern-
ment [art. 78 gciii; art. 101 gciv; see: Internment; Assigned Residence;
Deprivation of Liberty]. Moreover, gciii empowers protecting powers to
assist prisoners of war in judicial proceedings against them, and to attend
their trial [arts. 100–101, 104–105, 107 gciii]. Furthermore, the protecting
power is responsible for transmitting information between belligerents. For
example, under gci and gcii, a protecting power shall transmit detailed
information on the sick, wounded, and dead that fall in the hands of the
adverse party [art. 16 gci; art. 19 gcii]. Moreover, the GCs confer upon a
protecting power a duty to lend its good offices to settle any disagreement
over the interpretation or application of the provisions of the Conventions
[see: Conciliation].
Increasing suspicion over the value of protecting powers dented enthusi-
asm for their services after World War ii. Protecting powers have been des-
ignated on only five occasions in armed conflicts since then [M. Sassὸli, A.A.
Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), p. 366].
For example, in the aftermath of the attacks of 11 September 2001, no efforts
were made to employ protecting powers in the emerging “war on terror” in
Public Health and Hygiene 587
Afghanistan or Iraq [N. Wylie, ‘Protecting Powers in a Changing World’, 40 Poli-

toribis (2006), p. 13]. This also did not happen in the armed conflicts that arose
in the aftermath of the “Arab Spring”. Several possible reasons may exist. First,
neutrality has become a rare concept in the era of collective security [see: Neu-
trality]. Second, the designation of a protecting power could be seen as giving
a standing to an otherwise unrecognized party to the conflict. Third, some par-
ties to a conflict may be unwilling to admit that an armed conflict exists in the
first place [Henry-Dunant Institute/UNESCO, p. 271].
The icrc, instead, emerged as the most appropriate actor to assume the
humanitarian functions of protecting powers in wartime [see: International
Committee of the Red Cross]. Its status as a neutral intermediary has enabled
it to be present in all types of armed conflicts (including armed conflicts of
non-international character, in which States would not accept the designation
of a traditional protecting power) [Wylie, p. 13]. Given its purely humanitarian
mandate, the icrc, however, has no actual interest in assuming the respon-
sibility of a protecting power per se, as it might appear to be siding with one
State rather than with the victims of all the parties to the conflict [Sassὸli et al.,
p. 366]. However, it may be mentioned that, despite the demise of the pro-
tecting power mechanism in armed conflicts, States continue to embrace it in
peacetime as a method to limit the practical implications of the severance of
diplomatic relations [Wylie, p. 13].
Bibliography
Henry-Dunant Institute/UNESCO, International Dimensions of Humanitarian Law
(1988), pp. 266–275.
H.S. Levie, ‘Prisoners of War and the Protecting Power’, 55 ajil (1961).
N. Wylie, ‘Protecting Powers in a Changing World’, 40 Politoribis (2006).
Public Health and Hygiene. The law of occupation requires an occupying

power to ensure the “medical supplies of the population” [art. 55(1) gciv; see:
Occupation]. If unable to fulfil that obligation, it must draw on external sup-
port and facilitate relief work, including for the provision of medical supplies
[art. 59 gciv]. An occupying power is also responsible for ensuring the proper
functioning of medical establishments, hospitals and medical services, and for
guaranteeing health and public hygiene. In particular, it must take measures
necessary to combat contagious diseases and epidemics [art. 56(1) gciv; art.
14(1) api]. Moreover, in the event of transfers or evacuations, the occupying
power must ensure, to the greatest practical extent, that the “removals are
588 Public Health and Hygiene
effected in satisfactory conditions of hygiene, health, safety and nutrition […]”

[art. 49(3) gciv].
Occupation law is conceived as a short-term transitional legal regime and
its provisions might not adequately address the needs of the population if the
occupation persists. In this regard, ihrl, which also applies in times of oc-
cupation, complements the law of occupation by spelling out in greater de-
tail what is required of the occupying power in both the short and long term
[Advisory Opinion, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, icj, para 112; see: International Human Rights
Law]. Article 12 icescr provides for “the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health”. This imposes
obligations of both immediate effect and of progressive realization on an oc-
cupying power. The former includes the minimum core content of the right to
health, which includes guaranteeing access without discrimination to medical
equipment, medicines and medical services; an adequate supply of safe drink-
ing water; and the possibility of obtaining essential medicines as defined by
the World Health Organization [cescr, General Comment No. 14: The Right to
the Highest Attainable Standard of Health (art. 12 icescr) (2000), para. 43]. It
also comprises the obligation to provide immunization against the major in-
fectious diseases; measures to prevent, treat and control epidemic and endem-
ic diseases; and to provide education and access to information regarding main
health problems [cescr, para. 44]. These obligations are non-derogable and
non-compliance cannot be justified “under any circumstances whatsoever”
[cescr, para. 47].
Obligations subject to progressive realization become increasingly perti-
nent if occupation stabilizes and persists. This requires, for example, devising
a public health strategy and a plan of action [cescr, para. 43]. The provision
of public health and hygiene supplies and services in times of occupation is
accordingly an area where ihrl makes an important complementary contri-
bution to occupation law [N. Lubell, ‘Human Rights Obligations in Military
Occupation’, 94(885) irrc (2012), p. 332].
ated with
Bibliography
A. Chapman, ‘Core Obligations Related to the Right to Health’, in A. Chapman, S. Rus-
sell (eds.), Core Obligations: Building a Framework for Economic, Social and Cul-
tural Rights (2002).
icrc, Expert Meeting Report: Occupation and Other Forms of Administration of For-
eign Territory (March 2012).
Public International Law 589
N. Lubell, ‘Human Rights Obligations in Military Occupation’, 94(885) irrc (2012).

S. Vité, ‘The Interrelation of the Law of Occupation and Economic, Social and Cultural
Rights: the Examples of Food, Health and Property’, 90(871) irrc (2008).
Public International Law. ihl does not exist in a vacuum; it is a branch of

a broader body of law called public international law. This system of norms
regulates the conduct of legal entities that are recognised as subjects in the
international society.
Public international law is distinct from domestic public law, which regu-
lates the relations between a State and its citizens, and from private interna-
tional law, which is part of the domestic law of a country and regulates cases
involving a foreign element (e.g. disputes between two parties in different
countries with different legal systems).
The primary subjects of public international law are sovereign States. Mod-
ern public international law has its origins in the 1648 Peace of Westphalia,
which concluded the Thirty Years War, and saw the advent of modern nation
States. For this reason, public international law is also called the law of nations.
In turn, law of nations is a translation of the Latin phrase ius gentium (droit
des gens in French), which indicated a body of legal thinking concerning the
relations between rulers in the Middle Ages. Jurists and philosophers such as
Francisco de Vitoria, Alberico Gentili, Hugo Grotius, Samuel von Pufendorf,
Christian Wolff, and Emer de Vattel laid the conceptual foundations of a soci-
ety of States governed by laws and not by warfare. They were thus instrumental
in the development of the law of nations, understood at the time as a body of
customs thought to be held in common by all peoples or nations.
States are no longer the only relevant members of the international com-
munity. Other entities that are recognised as subjects of public international
law include international organisations and individuals. Thus, consistent with
these developments, ihl no longer regulates inter-State relations only. It has
evolved over time to protect the victims of armed conflict, and to impose obli-
gations on individuals and armed groups directly [see: International Humani-
tarian Law].
ihl has a distinctive field of application and certain distinguishing fea-
tures, leading some commentators to argue that it is a self-contained regime
or, in other words, a system of rules that can only be implemented according
to its own rules. However, it is part and parcel of public international law. For
example, the general rules on treaty interpretation apply to the humanitarian
law treaties. Likewise, the principles on State responsibility for ihl violations
derive from the general rules of public international law on the responsibility
of States for breaches of international law, with limited exceptions [see: State
590 Public Order and Safety
Responsibility]. Thus, ihl is better understood if placed in its proper context,

that of public international law.
Bibliography
J.R. Crawford, Brownlie’s Principles of Public International Law (2012).
A. O’Donoghue, ‘Splendid Isolation: International Humanitarian Law, Legal Theory
and the International Legal Order’, 14 yihl (2011).
R. Wolfrum, ‘International Law’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Pub-
lic International Law (2006).
Public Officials; see: Judges and Public Officials
Public Order and Safety. Public order may be defined as a situation of normali-
ty in which individual and collective activities take place without disturbances
and conflict, the authorities exercise their functions, and the citizens respect
and obey them without protest. Public order represents a good that prevails
over individual rights, if the latter represent an effective and concrete risk to
the former. This may occur, for example, where groups resort to violence to
achieve certain aims or demonstrators violently (or without permission) block
a road affecting other members of the community. It could be said that public
order is, at the same time, a fundamental guarantee and a limit to individual
freedom. As a fundamental guarantee, the State has the responsibility to main-
tain law and order, peace and security within its territory. This responsibility
extends even during times of armed conflict and has been reflected in Article
8 icc Statute, which states that nothing in that provision shall affect “the re-
sponsibility of a Government to maintain or re-establish law and order in the
State or to defend the unity and territorial integrity of the State, by all legiti-
mate means”. It has been argued that guaranteeing order justifies “legitimate
actions taken on behalf of the Government of a State, in which an internal
armed conflict is taking place” [M. Klamberg, Commentary to the Rome Stat-
ute: Article 8(3), Case Matrix Network].
In order to guarantee public order, the State may adopt a variety of measures.
Those of a preventive nature aim at avoiding disturbances and alterations to
the public order altogether, such as the protection of facilities of general in-
terest or strategic value. Others involve the deployment of public force with
the purpose of temporarily restraining or limiting some freedoms, such as
the movement of people, assembly, and expression in specific places, while
Qualified Persons 591
respecting at all times non-derogable human rights [M.P. Moloeznik, Manual

de Sistemas Comparados de Policía (2010), p. 46].
For the purpose of re-establishing public order, and in accordance with a
precise legal procedure, the relevant authorities can also declare a state of
emergency. In this case, the population must be informed exactly about the
material, territorial, and temporal scope of this exceptional measure, reducing
limitations of human rights to the minimum extent required [icrc, Violence
and the Use of Force (2011), pp. 21–23].
Turning to the second notion, safety may be defined as the freedom from
the occurrence or risk of injury, danger, or loss. Some authors consider that the
notion of safety can be compared to “citizen security”. It is the obligation of the
State to maintain such a situation. A definition based on the fight against risks
and threats has the advantage of a wider scope, which exceeds restrictive con-
cepts, such as criminality and crimes, and emphasises the notion that safety
or citizen security is a right that can be demanded from the State [R. Brotat i
Jubert, Un Concepto de Seguridad Ciudadana (2002), p. 4].
In other words, citizen security deals with the progressive establishment,
strengthening, and protection of the rule of law, by means of neutralizing
threats to the population and ensuring a secure and pacific coexistence. Thus,
citizen security is a public good and encompasses the effective protection of
fundamental human rights, especially “the right to life, the right to physical
integrity, the right to freedom, the right to due process and the right to the use
and enjoyment of one’s property, without prejudice to other rights” [IACmHR,
Country Report on Citizen Security and Human Rights (2009), pp. 41–91].
However, as with any other public good, there is a need to take into consider-
ation the political, budgetary, social, administrative, and cultural priorities of
a State.
Marcos Pablo Moloeznik – the views expressed are those of the author alone
with
Bibliography
R. Brotat i Jubert, Un Concepto de Seguridad Ciudadana (2002).
IACmHR, Country Report on Citizen Security and Human Rights (2009), pp. 41–91.
icrc, Violence and the Use of Force (2011), pp. 21–23.
M.P. Moloeznik, Manual de Sistemas Comparados de Policía, Guadalajara (2010).
Qualified Persons. Article 6(1) api requires States to “train qualified person-
nel to facilitate the application of [ihl], and in particular the activities of the
592 Quarter
Protecting Powers” [see: Protecting Powers]. Given the fact that protecting
powers have not in practice been either designated or accepted by States par-
ties to armed conflict, their role has been substituted by the icrc in accor-
dance with Article 5(4) api [see: International Committee of the Red Cross].
Over and above States’ obligation of conduct to train such persons, Article 6(3)
api refers to the possibility that they draft lists of such personnel and share
them with the icrc.
The object of Article 6 api is to ensure that specialist personnel, capable
of undertaking the various tasks required to effectively implement the 1949
GCs and their 1977 APs, are trained in peacetime and available in the event
of armed conflict. The identification of such personnel for training is comple-
mentary with the work carried out by National Committees for the Imple-
mentation of ihl, aimed at coordinating government ministries, legislative
officials, members of the judiciary, and non-governmental experts who play
essential roles in ihl application.
The precise type of qualified persons requiring specialized training to effec-
tively implement ihl depends on the State’s constitutional structure, but will
normally include personnel from the Ministries of Defence, Foreign Affairs, In-
ternal Affairs, Justice, Finance, Education, Health, and Culture. Other persons
from the non-governmental sector may be identified for training according to
their legal, educational, communications, or other expertise. For example, ihl
specialists from universities and humanitarian organizations will normally be
an asset. By virtue of their inter-disciplinary nature, National ihl Committees
may be capable of playing a central role in the training of such personnel in
accordance with the treaty and customary law obligations of the State.
not necessarily reflect those of the icrc
Bibliography
C. Pellandini, ‘Ensuring National Compliance with ihl: The Role and Impact of Na-
tional ihl Committees’, 96(895–896) irrc (2014).
Quarter. Quarter refers to the obligation to protect and spare the life of a con-
quered enemy who has been rendered hors de combat [see: Hors de Combat].
A declaration or order that “no quarter shall be given” is a threat not to respect
this fundamental obligation and amounts to an order that there shall be no
survivors. Such an order is absolutely prohibited by customary international
law in both international and non-international armed conflicts [rule 46 icrc
Quarter 593
Customary ihl Study]. This customary prohibition stems from the fundamen-
tal principle that the laws of war do not allow for an unlimited ability to injure
the enemy, and that protections should be afforded to those belligerents who
have been captured and/or have laid down their arms.
The rule finds its origin in the principle that the conquered enemy may not
be exterminated. However, for years, it was common practice that survivors
would be enslaved and there were often exceptions to the application of the
rule. In the Middle Ages, only people of the same race, same religion, or with
whom there were neighbourly relations were protected by the principle. It was
also not uncommon for military leaders to threaten to exterminate garrisons
defending a fortress against a siege. As far back as the Laws of Manu in An-
cient India, there was a prohibition against the refusal to spare lives [1987 icrc
Commentary api, pp. 473–477].
The rules concerning quarter were first outlined in the 1863 Lieber Code.
This Code provided that all enemies who had “thrown away their arms and
ask for quarter”, were prisoners of war [art. 49 Lieber Code; see: Prisoners of
War], and that it was against the usage of modern war to “give no quarter” [art.
60 Lieber Code]. This early prohibition was not absolute, and a commander
was permitted to direct his troops to give no quarter, “in great straits” when he
considered that their own salvation meant it was impossible to take prisoners
[art. 60 Lieber Code]. In addition, this protection was reciprocal, and if an en-
emy had given no quarter, they would not receive quarter [art. 61 Lieber Code].
Later prohibitions closed these loopholes. Most significantly Article 23(d) of
the 1907 Hague Regulations listed the declaration that no quarter would be giv-
en as one of the examples of conduct towards the enemy which was especially
forbidden under the laws of war. This provision drew on similar prohibitions
found in Article 13(d) of the 1874 Brussels Declaration and Article 9(b) of the
1880 Oxford Manual, which were not binding legal instruments. The report of
a Commission set up after World War i listed “[d]irections to give no quarter”
among the crimes committed during the war [Commission on the Responsi-
bility of the Authors of the War and on Enforcement of Penalties, ‘Report Pre-
sented to the Preliminary Peace Conference’, 14(1–2) ajil (1920), p. 115].
Article 40 api states that “[i]t is prohibited to order that there shall be no
survivors, to threaten an adversary therewith or to conduct hostilities on this
basis”. It is worth noting that this prohibition is separate from the obligation to
safeguard enemy hors de combat found in Article 41 api [see: Hors de Combat].
With regard to the law of non-international armed conflicts, an order that
no quarter shall be given would contravene Common Article 3 GCs, and in par-
ticular the prohibition against violence to life and person as it would involve
594 Rape and Sexual Violence
the killing of persons hors de combat [rule 46 icrc Customary ihl Study].
More specifically, Article 4(1) apii proscribes the order that there shall be no
survivors.
The icc Statute adopted the customary prohibitions pertaining to the deni-
al of quarter [art. 8(2)(b)(xii), 8(2)(e)(x) icc Statute]. The crime is committed
as soon as a person declares or orders that there shall be no survivors. Accord-
ing to the icc Elements of Crimes, this crime also requires that the order was
“given in order to threaten an adversary or to conduct hostilities on the basis
that there shall be no survivors”. This reflects the wording of Article 40 api. A
further constitutive element of this crime is that the perpetrator must be in
a position of effective command and control over the subordinate forces to
which the declaration or order was directed [arts 8(2)(b)(xii), 8(2)(e)(x) icc
Elements of Crimes]. There is no requirement that the order needs to be car-
ried out for the crime to be committed. What is important is to establish intent
to conduct hostilities in such a way that there would be no survivors or intent
to threaten an adversary.
In modern times the phrase “give no quarter” is often used colloquially
when suggesting that terrorists for example will be “given no quarter”; it does
not usually mean an order or declaration that there will be no survivors, which
would amount to a war crime.
of Cambodia
Bibliography
C. Byron, War Crimes and Crimes against Humanity in the Rome Statute of the Inter-
national Criminal Court (2009), pp. 118–119.
T. Meron, ‘International Humanitarian Law from Agincourt to Rome’, 75 International
Law Studies (2000).
L. Moir, ‘Conduct of Hostilities – War Crimes’, in J. Doria, H.P. Gasser, M.C. Bassiouni
(eds.), The Legal Regime of the International Criminal Court – Essays in Honour of
Professor Igor Blishchenko (2009), pp. 518–520.
W. Schabas, The International Criminal Court: A Commentary on the Rome Statute
(2016), p. 277.
Rape and Sexual Violence. Early codified ihl prohibited rape [art. 44 Lieber
Code]. Under modern treaty law, ihl prohibits, in international armed con-
flict, rape, (en)forced prostitution, and any form of indecent assault as attacks
on women’s honour [art. 27 gciv; art. 76(1) api], while enforced prostitution
Rape and Sexual Violence 595
and any form of indecent assault is prohibited as outrages upon personal dig-
nity [art. 75(2) api; see: Outrage upon Personal Dignity].
Further, in non-international armed conflict, treaty law prohibits rape, en-
forced prostitution, and any form of indecent assault as outrages upon person-
al dignity [art. 4(2) apii]. Whilst the term “sexual violence” does not appear as
such in ihl treaties, Rule 93 icrc Customary ihl Study states that “rape and
other forms of sexual violence are prohibited”, thereby covering acts such as
forced pregnancy and sexual slavery.
Although not expressly mentioned as a grave breach under the GCs and
api [see: Grave Breaches], rape and other forms of sexual violence have been
subsumed under the category of “torture and inhuman treatment, […] includ-
ing wilfully causing great suffering or serious injury to body or health” [rule 156
icrc Customary ihl Study; see: Torture; Inhuman Treatment; Wilfully Caus-
ing Great Suffering or Serious Injury to Body or Health]. Whether committed
in international or non-international armed conflict, rape and sexual violence
are considered to be serious violations of ihl and thus incur individual crimi-
nal liability [rules 93, 156 icrc Customary ihl Study; see: Serious Violations
of the Laws and Customs of War], as specified in the icc Statute [arts. 8(2)(b)
(xxii), 8(2)(e)(vi) icc Statute].
There is no definition of rape or sexual violence in ihl. A literal interpreta-
tion of Article 27 gciv links acts of a sexual nature to honour, a concept that is
socially constructed and often sustained by male ideas about women’s chastity,
modesty, and associated frailty and dependence. Interpreted in light of subse-
quent ihl provisions [e.g. arts. 75, 76 api; art. 4 apii] and the human rights
concept of human dignity that also appears in Common Article 3 GCs, acts of
sexual violence are viewed as physical harm, as well as harm to one’s human
dignity rather than one’s honour [e.g. Judgment, Nyiramasuhuko, ictr, Trial
Chamber, paras. 6178–6179; Judgment, Furundžija, icty, Trial Chamber, para.
183].
Rape was defined by the icty in the Furundžija case and then developed in
the Kunarac case [Furundžija, para. 185; Judgment, Kunarac et al., icty, Ap-
peals Chamber, para. 127]. The core elements of these definitions have been
widely adopted and so the act of rape is defined in the icc Elements of Crime
in the following terms: “[t]he perpetrator invaded the body of a person by con-
duct resulting in penetration, however slight, of any part of the body of the vic-
tim or of the perpetrator with a sexual organ, or of the anal or genital opening
of the victim with any object or any other part of the body” [art. 8(2)(b)(xxii)-
1, 8(2)(e)(vi)-1 icc Elements of Crimes]. The second material element of the
definition is that the act be committed against the consent of the person which
was originally understood as “coercion or force or threat of force against the
596 Rape and Sexual Violence
victim or a third person” [Furundžija, para. 185], but is now widened [art. 8(2)
(b)(xxii)-1, 8(2)(e)(vi)-1 icc Elements of Crimes] to include “taking advantage
of a coercive environment” and “against a person incapable of giving genuine
consent” [Judgment, Bemba, icc, Trial Chamber, paras. 103–105, 107–108].
Conversely, sexual violence covers any act of a sexual nature [Judgment,
Akayesu, ictr, Trial Chamber, para. 598; rule 93 icrc Customary ihl Study]
that is committed on a person “under circumstances which are coercive”. That
being said, sexual violence is defined in a more restrictive manner in the icc
Statute, for it requires the act to be of a gravity comparable to that of a grave
breach of the GCs [art. 8(2)(b)(xxii)-6 icc Elements of Crimes] or that of a
serious violation of Common Article 3 GCs [art. 8(2)(e)(vi)-6 icc Elements
of Crimes]. It is defined as an act of a sexual nature by force or by threat of
force or coercion or by taking advantage of coercive environment [arts. 8(2)(b)
(xxii)-6, 8(2)(e)(vi)-6 icc Elements of Crimes]. The terminology of “any form
of indecent assault”, which is specific to ihl treaties, is understood as an as-
sault of sexual nature and might thus be equated to sexual violence.
As rape and sexual violence are uncoupled from the idea of a woman’s repu-
tation and honour, the prohibition of rape and sexual violence applies equally
to men and women [rules 93, 134 icrc Customary ihl Study]. Rape and sexual
violence have been defined in international criminal law in gender-neutral
terms so that they can be applied to female and male victims alike [see foot-
notes 50, 62 icc Elements of Crimes; Bemba, para. 100].
Noëlle Quénivet – the views expressed are those of the author alone and do not
Bibliography
K. Askin, War Crimes against Women: Prosecution in International War Crimes Tribu-
nals (1997).
K. Boon, ‘Rape and Forced Pregnancy under the icc Statute: Human Dignity, Autono-
my, and Consent’, 32 Columbia hrlr (2001).
A. de Brouwer et al. (eds.), Sexual Violence as an International Crime: Interdisciplinary
Approaches (2013).
R. Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into
International Criminal Law’, 46(1) McGill Law Journal (2000).
J. Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related
Violence in Positive International Criminal Law’, 30(1) mjil (2009).
F. Ní Aoláin, D.F. Haynes, N. Cahn, ‘Criminal Justice for Gendered Violence and Be-
yond’, 11(3) iclr (2011).
K. O’Byrne, ‘Beyond Consent: Conceptualising Sexual Assault under International
Criminal Law’, 11(3) iclr (2011).
Reciprocity 597
S. Sivakumaran, ‘Sexual Violence against Men in Armed Conflict’, 18(2) ejil (2007).
P. Viseur Sellers, ‘The Context of Sexual Violence: Sexual Violence as Violations of In-
ternational Humanitarian Law’, in G. McDonald, O. Swaak Goldman (eds.), Substan-
tive and Procedural Aspects of International Criminal Law (2000).
Rebels; see: Armed Groups
Reciprocity. The notion of reciprocity featured prominently in the early bilat-

eral law of war treaties [S. Watts, ‘Reciprocity and the Law of War’, 50 (2009)
hilj, p. 389]. Giving way to considerations of sovereignty and as a result of
the lack of confidence at the time in international regulation of warfare, the
early ihl treaties included so-called general participation clauses: either all
States that engaged in a war were bound by the convention concerned, or
none was [e.g. art. 2 of the 1907 Hague Convention iv, which specifies that
the Hague Regulations and the Convention “do not apply except between
Contracting powers, and then only if all the belligerents are parties to the
Convention”]. After the negative consequences of such clauses had become
apparent during World War i, they were expressly excluded for the two Geneva
Conventions agreed on in 1929 [e.g. art. 25 of the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armies in the Field
(1929); art. 82 Geneva Convention Relative to the Treatment of Prisoners of
War (1929)].
The 1949 GCs went on to emphasise in Common Article 1 that they ought
to be respected “in all circumstances”, and stated that the rules contained in
Common Article 3 GCs similarly must be observed “in all circumstances” [see:
Common Article 1; Common Article 3]. The 1969 vclt expressly prohibits the
invocation of reciprocity for “provisions relating to the protection of the hu-
man person contained in treaties of a humanitarian character, in particular to
provisions prohibiting any form of reprisals against persons protected by such
treaties” [art. 60 vclt; see also: icty, Judgment, Kupreškić, icty, Trial Cham-
ber, para. 520; see: Reprisals against Civilians].
Furthermore, one of the basic notions of modern ihl is the principle of
equality of belligerents, which entails that all parties to an armed conflict have
the same rights and obligations under ihl, irrespective of the (alleged) just-
ness of their cause [see: Belligerents, Equality of]. This principle is fundamen-
tal to ensure the separation between ius ad bellum and ius in bello [see: Ius
Ad Bellum] and derives from the realism that a body of law designed specifi-
cally to apply in situations of armed conflict, must be complied with in all cir-
cumstances. The reciprocity principle recognises that if one side would not be
598 Reconnaissance Missions
bound by certain rules, it would be unlikely for the other side to comply with
the rules it is bound by [S. Sivakumaran, The Law of Non-International Armed
Conflict (2012), p. 95].
The icrc considers that the principle that “[t]he obligation to respect and
ensure respect for international humanitarian law does not depend on reci-
procity” and has acquired customary law status under ihl, applicable in both
international and non-international armed conflicts [rule 140 icrc Custom-
ary ihl Study]. However, tension surrounds the idea of reciprocal (and equal)
application of ihl in situations of non-international armed conflict, seeing
that non-State actors can be detained and prosecuted for mere participation
in the fighting, even if they fully complied with ihl [see: Common Article
3; Combatants]. However, authorities are called upon to “endeavour to grant
the broadest possible amnesty to persons who have participated in the armed
conflict” after the end of hostilities [art. 6(5) apii; see: Amnesty].
Reciprocity has to be distinguished from (belligerent) reprisals, which seek
to compel continued operation of ihl, thereby affirming it, while negative rec-
iprocity would suspend or terminate the relevant legal obligation altogether.
Bibliography
S. Watts, ‘Reciprocity and the Law of War’, 50 hilj (2009).
Reconnaissance Missions. Reconnaissance missions serve to collect infor-

mation about the enemy for military purposes. Reconnaissance and other
information-gathering operations are not prohibited by ihl. In fact, they are
likely to enhance the ability of the party that uses them to comply with the
principles of distinction and discrimination, by improving awareness of what
is going on in the battlespace [1987 icrc Commentary api, para. 2195; see: Dis-
tinction]. Indeed, many military manuals include an explicit requirement that
the military nature of an objective be verified by way of reconnaissance before
it is targeted [J.-M. Henckaerts, L. Doswald-Beck, Customary International Hu-
manitarian Law, Vol. ii (2005), pp. 369–370; see: Military Objectives; Precau-
tions, Active].
While reconnaissance would mostly have had to be conducted in person in
the past, new technologies allow for it to be carried out by remotely controlled
objects, such as unmanned aerial vehicles [see: Drones], or even through satel-
lites; and, more recently, by using cyber capabilities [see: Cyber Warfare].
Reconnaissance Missions 599
In international armed conflict, as long as military personnel involved in

reconnaissance wear their uniforms, they are entitled to prisoner of war status
when captured [see: Combatants; Prisoners of War]. However, such protec-
tion need not be afforded to them if they engage in reconnaissance missions
without wearing a uniform, or without fixed distinctive sign (and carrying
their weapons openly). Members of the armed forces in disguise, such as ci-
vilian clothing or the enemy’s uniform, thereby making it impossible for the
enemy to identify them as members of the opposing armed forces, are acting
“clandestinely” or “under false pretences” [art. 46(3) api]. Although the gather-
ing of intelligence while not in uniform does not constitute perfidy, so long as
no enemy combatants are killed, injured or captured [art. 37 api; see: Perfidy],
when captured during such a mission, they will be regarded as spies and may
be tried as such [arts. 29–30 1907 Hague Regulations; see: Spies].
Civilians who are gathering and transmitting military intelligence directly
participate in hostilities and therefore may be targeted during such partici-
pation [icrc, Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law, p. 55; see: Direct Participa-
tion in Hostilities].
As with persons, military reconnaissance aircraft or ships ought to be iden-
tifiable as such [e.g. art. 3 The Hague Rules of Air Warfare]. Moreover, when
a civilian ship is engaged in reconnaissance or assists in another manner in
the intelligence gathering for enemy armed forces, it loses its protected sta-
tus, and may be attacked and sunk [art. 60(c) San Remo Manual]. The same
applies to civilian aircraft [art. 63(c) San Remo Manual]. When a civilian air-
plane is incorporated in or assists the enemy’s intelligence gathering system,
e.g. by engaging in reconnaissance, early warning or surveillance, such aircraft
may “exceptionally” be attacked [rule 27 hpcr Manual on Air and Missile
Warfare].
During non-international armed conflicts, the same requirement applies
to distinguish oneself as someone taking a direct part in hostilities. Members
of government forces or organised armed groups that are a party to a non-
international armed conflict, therefore, have to distinguish themselves during
reconnaissance missions. However, since prisoner of war status does not exist
during non-international armed conflict and espionage is not prohibited un-
der ihl, combined with the fact that government forces are unlikely to have
violated domestic law, only members of organised armed groups will be af-
fected in case of capture during reconnaissance missions.
600 Refugee Law
Red Crescent; see: Emblem
Red Cross; see: Emblem
Red Crystal; see: Emblem; Additional Protocol iii
Red Lion and Sun; see: Emblem
Red Shield of David; see: Additional Protocol iii
Refugee Law. At the international level, refugee law is a branch of public inter-
national law [see: Public International Law], which currently refers primarily
to the 1951 Geneva Convention Relating to the Status of Refugees and its 1967
Protocol. However, these contemporary treaties build on the traditional State
practice of granting asylum to certain individuals on their territories. Such
practice was first translated in international extradition law in the nineteenth
century, whereby political offenders were not to be extradited by the host State
to their country of origin. It was only after World War i that refugee law be-
came a stand-alone branch of international law, albeit with a limited personal
scope. Indeed, the first international refugee law treaties that were adopted
only protected refugees of predetermined nationalities. In 1926, the League of
Nations adopted the Arrangement relating to the Issue of Identity Certificates
to Russian and Armenian Refugees, which supplemented and amended the
1922 and 1924 arrangements and was further complemented in 1928 by an ar-
rangement concerning their legal status. The 1933 Convention relating to the
International Status of Refugees was applicable to Russian, Armenian and as-
similated refugees who were to be issued a Nansen certificate for travelling,
while the 1938 Refugee Convention was concerned with refugees coming from
Germany.
Adopted in the aftermath of World War ii, the approach taken by the 1951
Geneva Convention was in fact not dissimilar to that of previous treaties. Its
refugee definition was subject to a mandatory temporal limitation (i.e. refu-
gees having fled before 1 January 1951) and an optional geographical limita-
tion (i.e. European refugees). It is only with the 1967 Protocol that a genuinely
universal definition of refugee was adopted with the suppression of these two
limitations [see: Refugees].
The 1951 Convention and its 1967 Protocol have further been complemented
by regional instruments clarifying and/or broadening the refugee definition
and the rights and benefits attached to refugee status. These include most
Refugee Law 601
notably: the 1969 Convention Governing the Specific Aspects of Refugee Prob-
lems in Africa adopted by the then Organization of African Unity (now African
Union); the 1984 Cartagena Declaration on Refugees, adopted by the Colloqui-
um on the International Protection of Refugees in Central America, Mexico
and Panama; and Directive 2011/95/EU.
Be it at the international or regional level, the intrinsic objective of refugee
law is to protect refugees, by laying down a set of rights and benefits to which
they are entitled in the host country. From that perspective, refugee status is
commonly recognized as a surrogate form of protection provided by the host
country, in case the country of origin is unwilling and/or unable to afford pro-
tection against persecution, or is itself the actor of persecution. It is also con-
strued as an incremental form of protection, whereby the scope of rights and
benefits expand over time. This clearly transpires from the 1951 Refugee Con-
vention, which sets out criteria determining the applicability of specific rights
and benefits. Some apply to all refugees, including asylum-seekers, as States’
recognition of an individual as a refugee is declaratory but not constitutive
of refugee status. This is for instance the case with the cardinal principle of
non-refoulement provided for in Article 33(1) of the Refugee Convention [see:
Non-Refoulement]. Other rights and benefits depend on refugees’ territorial
bound with the host State (i.e. physical or lawful presence) and the nature of
their stay (i.e. physical residence, lawful stay, or habitual residence).
By protecting those fleeing persecution, international refugee law is a
branch of international law that is complementary to ihl. The latter indeed
prevents to a certain extent the displacement of civilians during armed con-
flicts, by mitigating their effects on the civilian population and by prohibit-
ing the forced transfer and deportation of civilians, except when military
necessities or their security so requires [see: Deportation or Transfer of Ci-
vilians]. As displacement is however inherent in any armed conflict, the pro-
tection of those displaced beyond States’ boundaries falls to international
refugee law.
Céline Bauloz – the views expressed are those of the author alone and do not
Bibliography
V. Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to Internation-
al Humanitarian Law, Refugee Law and Human Rights Law’, in A. Clapham, P. Gae-
ta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014).
J.C. Hathaway, M. Foster, The Law of Refugee Status (2014).
602 Refugees
Refugees. The definition of the term “refugee” is laid down in Article 1 of the
1951 Geneva Convention relating to the Status of Refugees, as amended by its
1967 Protocol (Refugee Convention). While Article 1(A)(1) refers to refugees
recognized under previous arrangements [see: Refugee Law], Article 1(A)(2)
provides a generic definition of refugees as any persons, including stateless
persons [see: Statelessness] who, “owing to well-founded fear of being per-
secuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality [or,
if stateless, outside his country of former habitual residence,] and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that coun-
try [or to return to it]”.
In this regard, the refugee definition is commonly recognized to rely on four
main cumulative criteria. The first of these definitional elements is the exis-
tence of a well-founded fear of being persecuted, which mainly consists of a
real risk of suffering violations of human rights of a certain level of severity
in the country of origin, be they originating from State or non-State actors. In
cases of non-State persecution, it will need to be substantiated that the State
is unable and/or unwilling to provide protection to the concerned individual.
The second criterion requires a link between the act(s) of persecution (or the
absence of protection) and at least one of the five discriminatory grounds ex-
haustively listed: race, religion, nationality, membership of a particular social
group, or political opinion. Each of these reasons for persecution may not only
relate to characteristics directly possessed by individuals, but they may also
arise when the actor(s) of persecution perceive individuals as such. The third
definitional element requires the individual to be outside his/her country of
origin, thereby distinguishing refugees from internally displaced persons [see:
Deportation or Transfer of Civilians]. Finally, the fourth criterion establishes
refugee status as a form of surrogate protection which is only to be granted in
the absence of protection in the country of origin.
This universal definition has been further enshrined in regional refugee law
instruments, namely the 1969 Convention Governing the Specific Aspects of
the Refugee Problem in Africa of the then Organization of African Unity (oau;
now African Union), the 1984 Cartagena Declaration on Refugees, and the so-
called EU Qualification Directive 2011/95/EU. Nevertheless, some of them have
also broadened the definition. Article 1(2) of the 1969 oau Convention extends
the refugee definition to “every person who, owing to external aggression, oc-
cupation, foreign domination or events seriously disturbing public order in
either part of the whole of his country of origin or nationality, is compelled to
leave his place of habitual residence in order to seek refuge in another place
Refugees 603
outside his country of origin or nationality”. Similarly, the 1984 Cartagena Dec-
laration enlarges the refugee definition so as to cover those “threatened by gen-
eralized violence, foreign aggression, internal conflicts, massive violation of
human rights or other circumstances which have seriously disturbed public
order” [1984 Cartagena Declaration, para. 3].
Beyond these regional specificities, limits are more generally set out as to
who can be recognized as a refugee. On the one hand, the Refugee Convention
excludes from refugee status individuals who already benefit from some form
of protection, such as those protected by the UN Relief and Works Agency for
Palestine Refugees in the Near East [art. 1D Refugee Convention], as well as
individuals who enjoy the rights and obligations equivalent to those granted to
nationals of the host country [art. 1E Refugee Convention]. On the other hand,
the Convention excludes individuals who are considered to be undeserving of
refugee status because of the existence of serious reasons for considering that
they have committed an international crime (crime against peace, war crime
or crime against humanity, including genocide), a serious non-political crime
outside the country of refuge prior to admission to that country, or for having
been guilty of acts contrary to the purposes and principles of the UN [art. 1(F)
Refugee Convention].
These inclusion and exclusion clauses which, together, form the definition
of a refugee in refugee law, remain relevant with respect to refugees in and
from armed conflicts. First, concerning refugees in armed conflicts, ihl trea-
ties explicitly refer to refugees in three specific provisions relating to interna-
tional armed conflicts [arts. 44, 70 gciv; art. 73 api]. As ihl does not however
define who a refugee is, recourse should be had to the refugee definition in
international and regional instruments to determine the personal scope of ap-
plication of these provisions. Second, individuals fleeing armed conflicts are in
most cases entitled to refugee status in their host State. While this is clearer for
regional definitions set out in the 1969 Convention and the 1984 Declaration,
the international definition of a refugee is entirely apt to cover “refugees from
war”, as armed conflicts and the resulting violence often relate to one of the
five grounds for persecution [unhcr, Guidelines on International Protection
No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and
Violence […] (2016)]. From that perspective, international refugee law and ihl
act as complementary branches of public international law [see: International
Humanitarian Law; Public International Law].
Céline Bauloz – the views expressed are those of the author alone and
with
604 Regularly Constituted Courts
Bibliography
D.J. Cantor, J.-F. Durieux (eds.), Refuge from Inhumanity? War Refugees and Interna-
tional Humanitarian Law (2014).
V. Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to Internation-
al Humanitarian Law, Refugee Law and Human Rights Law’, in A. Clapham, P. Gaeta
(eds.), The Oxford Handbook of International Law in Armed Conflict (2014).
H. Storey, ‘Persecution: Towards a Working Definition’, in V. Chetail, C. Bauloz (eds.),
Research Handbook on International Law and Migration (2014).
Regularly Constituted Courts. Regularly constituted courts, also referred to as

“properly constituted” or “competent” courts, are courts that are established
by law and afford the essential guarantees of independence and impartiality.
No judgment or punishment for a penal offence can be imposed without
a previous trial by a regularly constituted court. As one of the fair trial guar-
antees included in the 1949 GCs [see: Fair Trial], the requirement of a regu-
larly constituted court was motivated by the practice of summary proceedings,
which were too prone to error and thus added new victims to the casualties of
armed conflicts [1958 icrc Commentary gci, p. 54]. Common Article 3 GCs,
which applies to any detainee in an armed conflict regardless of its classifica-
tion, proscribes summary judgments or executions by any tribunal that fails to
meet the standard of a “regularly constituted court”.
With respect to civilians prosecuted in occupied territories [see: Occupa-
tion], Article 66 gciv instead requires the use of “properly constituted” courts,
as the occupying forces could not be expected to have previously established
courts in foreign territories. Article 71 gciv clarifies that such a court must be
“competent”, and prohibits the sentencing of civilians “except after a regular
trial”.
Neither term appears in gciii provisions governing the conduct of judicial
proceedings against prisoners of war [see: Prisoners of War]. Article 102 gciii
requires the detaining power to try prisoners of war in the same military or
civilian courts that prosecute members of its own armed forces. The additional
safeguard built into Article 84 gciii provides that such courts must conform
to the guarantees of “independence and impartiality as generally recognized”.
The terms “regularly” or “properly” constituted courts have a range of in-
terpretations. A strict reading of the GCs suggests that the jurisdiction and
procedures of such courts were prescribed in existing law, not created for a
specific purpose. The icrc original commentary to Article 66 gciv thus pro-
vides that a “properly constituted court” includes “ordinary military courts”
and “definitely excludes all special tribunals” [1958 icrc Commentary gciv,
Regularly Constituted Courts 605
p. 340]. The icrc Customary ihl Study describes “regularly constituted court”
as one “established and organized in accordance with the laws and procedures
already in force in a country” [rule 100 icrc Customary ihl Study].
The more prevalent understanding of “regularly constituted”, or its ihrl
equivalent “competent”, does not rule out the existence of special courts and
tribunals [see: Military Commissions]. Provisions calling for “competent”
courts, such as Article 14 iccpr, have been interpreted to mean courts estab-
lished by law, rather than an arbitrary administrative act, in order to decide
cases relating to certain subject matters. If a special court is used, there must
be a valid reason why the normal court is unable to exercise jurisdiction, and
the special tribunal must comply with the indispensable requirements of inde-
pendence and impartiality [2016 icrc Commentary gci, p. 678].
Provisions of all major human rights treaties contain independence and im-
partiality requirements [e.g. art. 14(1) iccpr; art. 6(1) echr; arts. 7, 26 achpr].
For a court to be independent, its judges’ ability to decide cases must be unfet-
tered by the will or the influence of the executive or legislature. In its General
Comment 32, the UN Human Rights Committee (hrc) lists additional safe-
guards ensuring independence of judges that include: guarantees of security
of tenure; procedures that ensure qualifications for the appointment of judges;
conditions governing promotion, transfer, suspension, and cessation of their
functions; and protections against conflicts of interest and intimidation [hrc,
General Comment 32 – Article 14 (2007), para. 20].
The impartiality requirement has two aspects: subjective and objective. In
order to be subjectively impartial, the judges must not allow their judgement
to be influenced by personal bias or prejudice, nor harbour preconceptions
about the matter before them, nor promote the interests of one party to the
detriment of the other [hrc, para. 21; rule 100 icrc Customary ihl Study]. To
be objectively impartial, the court must appear to be impartial to a reasonable
observer [hrc, para. 21]. Objective impartiality will be lacking where there is
well-founded fear of a bias, such as when members of the military are involved
in judging members of the armed group the military is fighting. Although they
might not necessarily be impartial as such, special courts comprising mem-
bers of the military and civilians as judges have been found to lack objec-
tive impartiality [Judgment, Incal v. Turkey, ECtHR, Grand Chamber, paras.
68, 71–73; Decision, Constitutional Rights Project et al. v. Nigeria, ACmHPR,
para. 8].
Article 75 api brought ihl fair trial norms more in line with ihrl, but main-
tained the “regularly constituted court” formulation. By contrast, Article 6(2)
apii reflects the reality that non-State actors will likely not find provisions un-
der national law allowing them to establish regularly constituted courts stricto
606 Release
sensu. The provision instead prohibits convictions that are not pronounced by
“a court offering the essential guarantees of independence and impartiality”.
The Statutes of the icc, ictr, and stl contain similar formulations [art. 67(1)
icc Statute; art. 12 ictr Statute; art. 13 stl Statute].
The requirement of Common Article 3 GCs might be seen as placing an
excessive burden on the non-State actors who do not control territory and
often lack the resources to establish regularly constituted courts [see: Armed
Groups]. Lowering the bar to the independence and impartiality requirements,
rather than the stricter Common Article 3 GCs conditions, might achieve more
realistic results in providing fair trial rights to detainees of non-State actors in
the overwhelming majority of non-international armed conflicts.
Ilya Nuzov – the views expressed are those of the author alone and do not
necessarily reflect the views of the International Federation for Human Rights
Bibliography
P. Akhavan, ‘Judicial Guarantees’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva
L. Doswald-Beck, ‘Judicial Guarantees under Common Article 3’, in A. Clapham,
P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).
Release. Captured combatants become prisoners of war during an interna-

tional armed conflict [see: Prisoners of War]. They can be held in captivity to
prevent them from participating in the hostilities against the detaining power
[see: Internment]. If such participation is no longer expected, there is no longer
any military necessity to retain them and, as a result, the principle of human-
ity requires their release [see: Humanity]. Therefore, prisoners of war must
be released after the conflict, because the termination of the conflict ends the
rationale of their captivity. The rule is that the release, including repatriation
to their State of origin, happens as soon as possible after the armed conflict,
subject to the consent of the prisoner of war [art. 118 gciii].
ihl provides for four options to release prisoners of war during an armed
conflict. First, the release of able-bodied prisoners on parole may be done
partially or wholly, but depends to a large extent on the laws of the detaining
power and the State of origin of the prisoner of war [art. 21 gciii]. Prisoners of
war released on parole are compelled to keeping their promise. Second, States
may arrange the exchange or release of able-bodied prisoners of war during
the armed conflict in case these have been held in captivity for a long time.
This could be done by bilateral agreement, using the good services of a third
Release 607
party such as a neutral State or the icrc [art. 109 giii; see: Prisoners or War,
Exchange of]. Third, if wounded and sick prisoners of war may be expected
to benefit from treatment in a neutral State, they may be released by the de-
taining power and transferred to that third State [see: Wounded and Sick].
This is however an exhortation rather than a binding obligation of the detain-
ing power [art. 110 gciii]. Fourth, prisoners of war whose further participa-
tion in hostilities is not expected must be repatriated directly to their country
of origin. This includes three categories of prisoners: those who are incurably
wounded or sick; those who are not likely to recover within one year; and those
who have recovered, but whose mental or physical fitness seems to have been
gravely diminished [art. 109 gciii].
The release of medical personnel and chaplains is subject to a special regime
[see: Medical Personnel; Religious Personnel]. They do not have the status of
combatants and do not become prisoners of war. They must be repatriated,
except in case their services are required for the treatment of other prisoners
of war [art. 30 gci; art. 37 gcii].
Civilians, who are protected persons during international armed conflict or
during occupation [see: Protected Persons], may be interned if this is abso-
lutely necessary for the detaining power, or for imperative reasons of security
for an occupying power [arts. 41, 42, 78 gciv; see Internment; Assigned Resi-
dence]. They must be released as soon as the reasons necessitating internment
no longer exist, but at the latest as soon as possible after the close of active
hostilities [arts. 132–134 gciv; art. 75(3) api; rule 128 A-B icrc Customary
ihl Study]. Parties to the conflict are encouraged to conclude special agree-
ments to release, repatriate or relocate particularly vulnerable persons to their
original place of residence or to neutral States [see: Special Agreements]. This
category includes children, pregnant women, mothers with infants and young
children, wounded and sick, and internees who have been detained for a long
time [art. 132 gciv].
ihl applicable in non-international armed conflict contains no prisoner of
war protection, due to the non-existence of combatant status [see: Combat-
ants]. The protection of detainees during non-international armed conflict is
regulated by Common Article 3 GCs, apii (if applicable), and customary ihl.
Persons deprived of their liberty in relation to a non-international armed con-
flict must be released as soon as the reasons for the deprivation of their liberty
cease to exist [rule 128 C icrc Customary ihl Study], or following a decision
to that effect by a review board or competent court. Continued detention
would violate the prohibition of arbitrary detention [rule 99 icrc Customary
ihl Study; see: Deprivation of Liberty]. They may, however, continue to be
608 Relief Societies
deprived of their liberty if penal proceedings are pending against them or if

they are serving a sentence lawfully imposed.
with
Bibliography
Y. Dinstein, ‘The Release of Prisoners of War’, in C. Swinarski (ed.), Études et Essais
sur le Droit International Humanitaire et sur les Principes de la Croix-Rouge en
l’Honneur de Jean Pictet (1984).
S. Krähenmann, ‘Protection of Prisoners in Armed Conflict’, in D. Fleck (ed.), The
Relief Societies. The exact expression found in the 1949 GCs is “relief societ-
ies, or any other organisations” [art. 125 gciii; art. 142 gciv]. The formulation
“humanitarian organisation” is also used, and considered synonymous with
“humanitarian body” [art. 9 gci; art. 9 gcii; art. 9 gciii; art. 10 gciv; art. 81
api; common art. 3 GCs].
In international armed conflict, an “impartial humanitarian organization”
may offer its services to the parties to the conflict [art. 9 gci; art. 9 gcii; art.
9 gciii; art. 10 gciv; art. 70 api]. In non-international armed conflict, an “im-
partial humanitarian body” may offer its services to the parties to the conflict
[common art. 3 GCs]. These services aim to safeguard the life and dignity of
persons affected by armed conflict, and can include relief operations [see:
Humanitarian Relief], measures to support the protection of persons, or the
provision of medical care. Interestingly, the French version of the GCs uses
the term “organisme humanitaire impartial” in both these instances, suggest-
ing that the terms “humanitarian body” and “humanitarian organisation” are
synonymous.
In drafting Common Article 3 GCs, the term “impartial humanitarian body”
was designed to encompass the icrc and National Red Cross and Red Crescent
Societies [see: International Committee of the Red Cross; International Red
Cross and Red Crescent Movement]. Today, impartial humanitarian organ-
isations comprise a wide range of non-governmental and intergovernmental
bodies, including aid societies that come to the assistance of a country’s medi-
cal services. To qualify as a humanitarian organisation, the entity must have
a minimum of structure and capacity to meet professional standards for hu-
manitarian activities, which can include dialogue with authorities with a view
Religious Convictions and Practices 609
to ending or preventing ihl violations, provision of health services, water, and

habitat initiatives, or the provision of medical care to the wounded and sick.
A humanitarian organisation cannot be a loose association of individuals or a
private person engaged in charitable activity.
The fact that a humanitarian organisation may need financial means to
sustain its staff and operations does not make it lose its humanitarian char-
acter. Nor will a humanitarian organisation’s relationships with commercial
entities (for example, to transport relief supplies) disqualify its humanitarian
character. However, it may be the case that humanitarian activities are carried
out by actors that do not qualify as impartial humanitarian organisations. The
profit-making nature of a company, even if it is providing free services within
a humanitarian operation, will preclude it from qualifying as an impartial hu-
manitarian body.
To be able to offer its services, a humanitarian organisation must operate
impartially at all times, including during planning and implementation of a
humanitarian activity [common art. 3 GCs; art. 9 gci; art. 9 gcii; art. 9 gciii;
art. 10 gciv; art. 70 api]. The principle of impartiality requires that assistance
be provided solely on the basis of and in proportion to need.
The notion of humanitarian organisation includes relief societies, which can
be of national origin, and may be constituted in any country, including one
under occupation. National Red Cross and Red Crescent Societies obviously
fall within this category. Relief societies can also have an international char-
acter, such as an international society or an international federation of several
national societies pursuing the same objectives [art. 125 gciii; art. 142 gciv].
During World War ii, various relief societies came together to coordinate their
services and to collect and forward their consignments.
World War ii also saw public or semi-public institutions deliver relief to vic-
tims of armed conflict. These are covered by the phrase “or any other organi-
zations” [art. 125 gciii; art. 142 gciv], which is designed to encompass those
entities whose humanitarian nature might not be permanent but instead be
limited to those assistance tasks that it carries out during the conflict. This
phrase would not comprise organisations whose humanitarian activities are
only sporadic.
Religious Convictions and Practices. In addition to the indirect safeguard

of the protection afforded to places of worship in relation to the conduct of
610 Religious Convictions and Practices
hostilities [see: Attacks against Historic Monuments, Works of Art or Places

of Worship], the “religious convictions and practices” of individuals are se-
cured in the GCs and APs more directly. In this regard, it is to be noted that
this term “relates to any system of philosophical or religious beliefs” [1958 icrc
Commentary gciv, p. 203; see also: art. 36 gciii; art. 86 gciv].
Persons protected under gciv [see: Protected Persons; Civilians] are en-
titled to protection of their convictions and religious practices in international
armed conflict in various forms. In general, subject to “such measures of con-
trol and security […] as may be necessary as a result of the war”, such persons
are entitled to respect for their “religious convictions and practices” and shall
be treated “without any adverse distinction based on […] religion” in both the
territories of parties to the conflict and occupied territories [art. 27 gciv; see
also: art. 75(1) api; see: Fundamental Guarantees; Non-Discrimination]. An
occupying power is, more specifically, under the obligation to “permit min-
isters of religion to give spiritual assistance to the members of their religious
communities” [art. 58 gciv; see: Occupation; Religious Personnel]. It also
must, in certain circumstances, make arrangements for “the maintenance and
education, if possible by persons of their own nationality, language and reli-
gion, of children who are orphaned or separated from their parents as a result
of the war” [art. 50 gciv; see: Children]. Moreover, aliens in the territory of
a party to a conflict “shall be allowed to practise their religion and to receive
spiritual assistance from ministers of their faith” [art. 38(3) gciv] and shall not
“be transferred to a country where he or she may have reason to fear persecu-
tion for his or her […] religious beliefs” [art. 45 gciv; see: Non-Refoulement].
Furthermore, members of armed forces and others may be in need of reli-
gious guidance or other assistance in international armed conflict. The GCs
and api, accordingly, regulate the status and duties of personnel charged with
such responsibilities [see: Religious Personnel]. These instruments also con-
tain detailed rules on the religious convictions and practices of those deprived
of their liberty in connection with an international armed conflict. Most im-
portantly, on condition that they comply with the disciplinary routine of the
camp, prisoners of war and interned civilians “shall enjoy complete latitude in
the exercise of their religious duties” [art. 34 gciii; art. 93 gciv; see also: arts.
36–37, 72, 108, 125 gciii; arts. 76, 86, 142 gciv; see: Prisoners of War; Depriva-
tion of Liberty, Treatment]. For instance, on the basis of, inter alia, gciii and
gciv, it has been concluded that certain interrogation techniques employed
by the U.S. authorities in Guantánamo Bay were “degrading” for members
of certain religions and that the removal and mishandling of religious items,
forced grooming, and the lack of a cleric impermissibly limited the right to
freedom of religion or belief of the detainees [UN Commission on Human
Religious Convictions and Practices 611
Rights, Situation of Detainees at Guantánamo Bay, E/CN.4/2006/120 (2006),

pp. 60–64]. Some of these acts (and other similar acts) may possibly amount to
outrages upon personal dignity [Request for Authorisation of an Investigation
pursuant to Article 15, Situation in Afghanistan, icc, Office of the Prosecutor,
paras. 204–206; see: Outrage upon Personal Dignity].
In addition, in international armed conflict, the GCs require burial or cre-
mation of the dead, if possible, in accordance with the rites of the religion to
which they belonged [art. 17 gci; art. 120 gciii; art. 130 gciv; see: Dead Per-
sons]. However, as the wording of these provisions suggests, this idea is “sub-
ject to a recommendation only, since it may happen that the observation of
some rites may be particularly difficult, or that the maintenance of public or-
der might be made difficult if certain rites are carried out which may provoke
hostile reactions among the people” [1958 icrc Commentary gciv, p. 506; see
also: 1960 icrc Commentary gciii, p. 565].
In non-international armed conflict meeting the threshold of apii, “[a]ll
persons who do not take a direct part or who have ceased to take part in hostili-
ties, whether or not their liberty has been restricted, are entitled to respect for
their […] convictions and religious practices” [art. 4(1) apii; see also: art. 5(1)
(d) apii]. In any event, in the view of the icrc, respect for “[t]he convictions
and religious practices” of civilians, persons hors de combat, and persons de-
prived of their liberty is required as a matter of customary ihl in international
and non-international armed conflict alike [rules 104, 127 icrc Customary ihl
Study].
apii also stipulates that the dead must be decently disposed of [art. 8 apii].
Although the icrc Commentary indicates that this includes “a religious ser-
vice, if required” [1987 icrc Commentary apii, para. 4656], it cannot be con-
cluded that an obligation is implied, since it may be even more difficult to
observe religious burial rites in non-international armed conflict than in inter-
national armed conflict. It is, furthermore, unclear whether a rule of customary
ihl has crystallised in this regard. According to the icrc, “[t]he dead must be
disposed of in a respectful manner […]” [rule 115 icrc Customary ihl Study],
but it remains nevertheless unclear whether this rule encompasses respect
for religious rites. Although the icrc refers to the need to do so in relation to
international armed conflict [J.-M. Henckaerts, L. Doswald-Beck, Customary
International Humanitarian Law, Vol. i (2005), p. 416], this appears to be hard
to reconcile with the non-obligatory nature of the aforementioned treaty law
and the general wording of Rule 115 icrc Customary ihl Study. Furthermore,
with regard to non-international armed conflict, the icrc states that “it is like-
ly that some of” the requirements connected with respectful disposal of the
dead in international armed conflict “also apply in non-international armed
612 Religious Personnel
conflicts on the basis of national law” without mentioning religious rites ex-
plicitly [Henckaerts, Doswald-Beck, p. 417].
Bibliography
N. Kumar, ‘Protection of Religious Personnel’, in D. Fleck (ed.), The Handbook of Inter-
Religious Personnel. The activities and status of personnel attending to the

spiritual needs of members of armed forces and others have been recognised
in ihl throughout its development [e.g. art. 2 1864 Geneva Convention; art. 18
1907 Hague Regulations; see: Religious Convictions and Practices].
Article 24 gci refers to “chaplains” and, subsequently, the more neutral defi-
nition of Article 8(d) api was introduced, namely “religious personnel”. De-
spite the Christian connotation of Article 24 gci, these terms should be read
as encompassing religious personnel of any denomination. It is, furthermore,
noteworthy that the reference to “religious” extends beyond the traditional un-
derstanding of this term. Non-confessional personnel could, thus, be afforded
the same status [2016 icrc Commentary gci, para. 1968].
Article 24 gci is exclusively concerned with the religious personnel of
“armed forces”. The following persons may be placed on the same footing: (i)
the religious personnel of other militias and other volunteer corps [art. 13(2)
gci]; (ii) those responsible for the spiritual needs of the personnel accompa-
nying the armed forces [art. 13(4) gci]; (iii) the staff of National Red Cross
Societies and of other Voluntary Aid Societies employed on religious duties
subject to certain conditions [art. 26 gci]; (iv) the religious personnel of hos-
pital ships and certain other ships [arts. 36–37 gcii; art. 23(5) api]; and (v)
the religious personnel mentioned in Article 9 apii [1987 icrc Commentary
apii, para. 4663]. Article 8(d)(i) api also protects the religious personnel of
armed forces and applies, in addition, to: (i) the religious personnel of the
medical units and medical transports of a party to the conflict [art. 8(d)(ii)
api]; (ii) the religious personnel of the medical units and medical transports
referred to in Article 9(2) api [art. 8(d)(iii) api]; (iii) civilian religious person-
nel [arts. 8(d)(iv), 15(5) api]; and (iv) temporary religious personnel [art. 8(d),
8(k) api].
Two constitutive requirements for religious personnel arise from Article 24
gci and Article 8(d) api. Religious personnel must, first, be attached to the
armed forces by decision of the competent authority and, second, be exclusively
Religious Personnel 613
concerned with the spiritual needs of members of the armed forces. Failing at-
tachment and/or exclusivity, the persons concerned do not fall in the category
of religious personnel, but are, depending on the circumstances, combatants
or civilians [see: Combatants; Civilians].
Religious personnel “shall be respected and protected in all circumstanc-
es” [art. 24 gci; see also: arts. 36–37 gcii; art. 15(5) api; art. 9(1) apii]. They
are entitled to wear the distinctive emblem as a manifestation of the protec-
tion afforded to them [see: Emblem]. The obligation to respect and protect
applies in the relationship between a party to the conflict and the religious
personnel of both the enemy’s armed forces and its own armed forces [2016
icrc Commentary gci, para. 1986]. At a minimum, the obligation to respect
comprises the duty to refrain from engaging or threatening to engage in cer-
tain behaviour, such as attacking, killing, or harming religious personnel [2016
icrc Commentary gci, paras. 1987, 1989]. It is, for instance, a grave breach
to commit the acts enumerated in Article 50 gci against religious personnel
[see: Grave Breaches] and a war crime to intentionally attack personnel using
the distinctive emblems [rule 30 icrc Customary ihl Study; art. 8(2)(b)(xxiv),
8(2)(e)(ii) icc Statute]. The obligation to respect entails, at a minimum, the
duties not to interfere with the work of religious personnel (such as arresting
them) and to ensure that such personnel may carry out its work (such as pro-
tecting them from looters or marauders) [2016 icrc Commentary gci, paras.
1991–1992].
Due to the specific nature of their activities, religious personnel are not con-
sidered to be combatants [art. 43(2) api; see: Combatants]. As a consequence,
they are not to be treated as prisoners of war if they fall into the hands of the
enemy in international armed conflict [art. 28 gci; art. 36 gcii; art. 33 gciii;
see: Prisoners of War]. However, if indispensable, religious personnel may be
retained to meet the spiritual needs of prisoners of war, preferably of those be-
longing to the armed forces upon which the religious personnel depend [arts.
28, 30–31 gci; arts. 36–37 gcii; arts. 33, 35 gciii]. Retained religious personnel
shall receive treatment at least equivalent to prisoners of war [art. 28 gci; art.
36 gcii; art. 33 gciii; see: Deprivation of Liberty, Treatment]. Such person-
nel shall, in addition, be entitled to certain facilities and forms of protection to
allow them to carry out their duties and responsibilities [art. 28 gci; arts. 33,
35 gciii].
Special agreements concluded between High Contracting Parties shall nei-
ther affect the situation of religious personnel, nor restrict the rights conferred
upon them [art. 6 gci; see: Special Agreements]. More generally, religious per-
sonnel may not renounce, in whole or in part, the rights conferred upon them
[art. 7 gci; art. 7 gcii]. However, the protection of religious personnel may be
614 Removal of Tissue or Organs
forfeited if they commit, outside their humanitarian duties, acts harmful to the
enemy [see: Acts Harmful to the Enemy].
The obligation to respect and protect religious personnel, including the
possibility of deprivation of such protection, constitutes a rule of customary
ihl applicable in international and non-international armed conflict [rule 27
icrc Customary ihl Study]. According to the icrc, under customary ihl, the
term religious personnel applies in the same sense to international and non-
international armed conflict and encompasses religious personnel complying
with the requirements of attachment and exclusivity, whether they are of a
military or civilian nature and whether they have been assigned permanently
or temporarily [J.-M. Henckaerts, L. Doswald-Beck, Customary International
Humanitarian Law, Vol. i (2005), p. 90].
On account of the nature of their activities, religious personnel must be
neutral. However, in particular contexts, the neutrality of such personnel may
be called into question. For instance, in the U.S. detention facility in Guantá-
namo Bay, a Muslim U.S. military officer held “a dual role as minister to the
detainees and advisor to the commander” [S. Lunze, ‘Serving God and Cae-
sar: Religious Personnel and their Protection in Armed Conflict’, 86(853) irrc
(2004), pp. 82–84].
Bibliography
N. Kumar, ‘Protection of Religious Personnel’, in D. Fleck (ed.), The Handbook of Inter-
S. Lunze, ‘Serving God and Caesar: Religious Personnel and their Protection in Armed
Conflict’, 86(853) irrc (2004).
Removal of Tissue or Organs. ihl protects, inter alia, persons who are in-
terned, detained, or otherwise deprived of their liberty by the opposing party
as a result of an armed conflict, whether international or non-international
in character [see: Deprivation of Liberty, Treatment]. These persons may not
be subjected to “any medical procedure which is not indicated by the state
of health of the person concerned and which is not consistent with generally
accepted medical standards which would be applied under similar medical
circumstances to persons who are nationals of the Party conducting the proce-
dure and who are in no way deprived of liberty” [art. 11(1) api; see also: art. 5(2)
(e) apii]. Principles indicating what could be regarded as permissible medical
experiments on human beings were set out for the first time at the internation-
al level in 1947 in the Medical Trials at Nuremberg, which dealt with medical
Removal of Tissue or Organs 615
experiments conducted on concentration camp prisoners without their con-

sent [Judgment, usa v. Karl Brandt et al., Nuremberg Military Tribunal, pp.
11374–11377]. These principles became known as the Nuremberg Code.
The prohibition set out in Article 11(1) api and Article 5(2)(e) apii falls un-
der and aims at clarifying and developing the more general prohibitions to
mutilate or carry out medical or scientific experiments or any other medical
procedure not indicated by the state of health of the person concerned and not
consistent with generally accepted medical standards [1987 icrc Commen-
tary api, para. 455; 1987 icrc Commentary apii, para. 4588; Common Article 3
GCs; art. 12 gci; art. 12 gcii; art. 13 gciii; art. 32 gciv; rule 92 icrc Customary
ihl Study; see: Physical Mutilation; Medical or Scientific Experiments].
While apii limits itself to this general prohibition, api goes further and pro-
hibits the removal of tissue or organs for transplantation [art. 11(2)(c) api].
This prohibition, however, is not absolute and exceptions may be made in the
case of blood and skin donated either for transfusion or grafting. In this case,
the removal of blood or skin may be carried out only if the donation was given
voluntarily, without any coercion and inducement, only for therapeutic pur-
poses, and under conditions consistent with generally accepted medical stan-
dards and controls designed for the benefit of both the donor and the recipi-
ent [art. 11(3) api; rule 92 icrc Customary ihl Study; see: Medical Standards,
Generally Accepted]. Article 11(6) api further requires each party to keep a
medical record for every donation of blood for transfusion or skin for grafting.
Any wilful act or omission which either violates any of the prohibitions set out
in paragraphs 1 and 2, or fails to comply with the requirements of Article 11(3)
api, amounts to a grave breach of api [art. 11(4) api; see: Grave Breaches].
Further, torture or inhuman treatment, including biological experiments, and
wilfully causing great suffering or serious injury to body or health amount to
grave breaches of the GCs [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv;
see also: art. 8(2)(b)(x), 8(2)(e)(xi) icc Statute; Torture; Inhuman Treatment;
Wilfully Causing Great Suffering or Serious Injury to Body or Health].
In addition to the aforementioned Medical Trials, other examples of trials
dealing with illicit medical practices include the Duch case, in 2010, before the
eccc where incidents of illicit blood drawing practices and other medical ex-
periments were documented by the Trial Chamber [Judgment, kaing Guek
Eav alias Duch, eccc, Trial Chamber, paras. 223, 275, 372, 428]. More recently,
the Kosovo Specialist Chambers and Specialist Prosecutor’s Office was estab-
lished following, inter alia, findings that illicit trafficking in human organs oc-
curred in Kosovo during the period immediately after the conclusion of the
armed conflict [Council of Europe: Parliamentary Assembly, Inhuman Treat-
ment of People and Illicit Trafficking in Human Organs in Kosovo, Doc. 12462
(2011)].
616 Reparations
Cambodia
Bibliography
Reparations. When violations of ihl take place, both State and individual re-
sponsibility exist [art. 51 gci; art. 52 gcii; art. 131 gciii; art. 148 gciv].
In the case of State responsibility [see: State Responsibility], the violating
State is obliged to make full reparation for the loss or injury caused [Judgment,
Case Concerning the Factory at Chorzow, pcij, para. 102; art. 31 Draft Articles
on State Responsibility; art. 38 Second Protocol to the Hague Convention for
the Protection of Cultural Property; art. 51 gci; art. 52 gcii; art. 131 gciii; art.
148 gciv]. This obligation exists in both international and non-international
armed conflicts.
Traditionally, States have had to seek reparation from another State for
violations of ihl. In general, there are three forms of reparation that can be
awarded or agreed upon either individually or in combination [art. 34 Draft
Articles on State Responsibility]. These include restitution, compensation, and
satisfaction, with a preference for restitution where possible [art. 35 ilc Com-
mentary on the Draft Articles on State Responsibility].
Restitution is meant to re-establish the situation that existed before the
injury took place. Restitution could entail allowing the return of individuals
wrongfully displaced, the release of individuals wrongfully detained, or the
return of stolen, seized or confiscated property. However, when restitution is
not materially possible or inadequate, compensation is a way to ensure full
reparation for the injury caused. Compensation is appropriate for economical-
ly assessable damage, such as, amongst other things, physical harm, material
damages, and the costs of medical, legal, and social services. Lastly, satisfaction
is also an option, principally where restitution or compensation are not pos-
sible, but also in combination with them. Satisfaction refers to a wide range
of measures. It can include measures aimed at the cessation of violations,
guarantees of non-repetition, public disclosure of the truth, a public apology,
sanctions against persons liable for the violations, and commemorations and
tributes to the victims.
In addition to States claiming reparation against other States, which is the
classical model, emphasis has increasingly been placed on reparations sought
Reparations 617
directly by individuals against State violations [art. 33(2) Draft Articles on

State Responsibility; art. 33 ilc Commentary on the Draft Articles on State
Responsibility; UN Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law]. Individuals
have received direct reparation through a variety of processes, including inter-
State agreements, national legislation, and national court proceedings, both
attached to criminal processes and in separate civil proceedings, though this
last avenue has been especially difficult to collect damages [see e.g. Judgment,
Prefecture of Voiotia (Greece) v. Federal Republic of Germany, Areios Pagos
(Supreme Court); Decision, Kadić v. Karadžić and Doe v. Karadžić, US Court
of Appeals; Decision, Kovač v. Karadžić, Tribunal de Grande Instance]. The es-
tablishment of compensation or claims commissions have been particularly
successful when there are funds available for individual awards [e.g. Commis-
sion for Real Property Claims of Displaced Persons and Refugees (Bosnia and
Herzegovina); UN Compensation Commission (Iraqi occupation of Kuwait);
the Eritrea-Ethiopia Claims Commission].
In addition to State responsibility, individuals may, under certain circum-
stances, be held criminally accountable for violations of ihl and may be re-
quired to pay reparations [see: Individual Criminal Responsibility]. The road
towards recognizing a tangible right to reparation within international crimi-
nal law was not always easy. Although the Statutes of the icty and ictr en-
abled these tribunals to decide on cases of restitution of property [art. 24(3)
icty Statute; art. 23(3) ictr Statute], they were silent when it came to award-
ing compensation to victims. In their rpe, some attempt was made to deal
with issues of compensation, but these rules simply noted that victims could
bring an action for damages in a national court or other competent body to ob-
tain compensation and that the Tribunals would transmit judgments detailing
convictions to national courts [rule 105 ictr rpe; rule 106 icty rpe]. Given
the difficulties facing victims and the complex judicial processes at the na-
tional level, the result of these weak reparation provisions was unsurprisingly
disappointing with no measures ordered by the Chambers.
With the creation of the icc in 2002, States aimed to address these short-
comings of the icty and ictr by creating the Trust Fund for Victims (tfv)
[art. 79 icc Statute]. In addition to implementing reparation awards ordered
by the Court against specific convicted individuals, the tfv may also finance
other projects for the benefit of victims and victim communities through its
assistance mandate. Importantly, in addition to the three traditional forms
of reparation, the tfv also recognizes awards related to rehabilitation, which
may include medical and psychological care as well as more general social
618 Reparations
services. In addition to symbolic and individual monetary payments, the icc

and the tfv have favored collective reparation awards aimed at improving
the lives of victims and victim communities, through the provision of special-
ized services [Judgment on the Appeals against the “Decision Establishing the
Principles and Procedures to be Applied to Reparations”, Lubanga, icc, Ap-
peals Chamber, paras. 151–157; Order for Reparations pursuant to Article 75
of the Statute, Katanga, icc, Trial Chamber ii; Reparations Order, Al-Mahdi,
icc, Trial Chamber viii]. This collective approach, even when combined with
symbolic and individual measures, recognizes the mass victimization aspect
of these violations and the limitations that exist when it comes to the rights of
individuals to directly receive individually-accessed restitution or compensa-
tion for violations of ihl.
The demands for reparation for victims of violations of ihl continue to
resonate and recently calls for a different reparative model have arisen where
reparations no longer place victims back in unequal and marginalized posi-
tions. Rather, it is argued that reparations should aim to improve, empower,
and transform the position of victims within society. Developments in the fu-
ture will likely include more emphasis on collective reparations for harms suf-
fered and attempts to make awards or assistance more transformative in the
communities that have suffered injury. This is certainly the position taken by
the tfv, which aims for reparative justice for victims and transforming lives,
and may impact upon State reparations in the years to come.
Overall, reparation for violations of ihl is important not just to acknowl-
edge and address the harm suffered by the State, or in some cases directly by
individual victims, but also to help improve compliance with international
law. However, while the right to reparation clearly exists in the law, practical
issues of political will, available funds, or valuation plague the implementation
of this right in practice.
Brianne McGonigle Leyh – the views expressed are those of the author alone
with
Bibliography
E.C. Gillard, ‘Reparation for Violations of International Humanitarian Law’, 85(851)
irrc (2003).
F. Rosenfeld, ‘Collective Reparation for Victims of Armed Conflict’, 92(879) irrc (2010).
R. Uprimmy Yepes, ‘Transformative Reparations of Massive Gross Human Rights Viola-
tions: Between Corrective and Distributive Justice’, 27(4) Netherlands Quarterly of
Human Rights (2009).
Repatriation 619
Repatriation. Repatriation is the process of returning an individual to his or

her country or land of citizenship. In the context of armed conflicts, this could
be the case of civilian internees or prisoners of war.
With respect to civilian internees [see: Civilians; Internment; Assigned
Residence], Article 132 gciv states that each internee must be released as soon
as the reasons for internment end [see: Release], and encourages the parties
to the conflict to conclude, during the course of hostilities, “agreements for
the release, the repatriation, the return to places of residence or the accom-
modation in a neutral country of certain cases of internees”. Article 133(1) gciv
creates an obligation for the detaining power to cease interment “as soon as
possible after the close of hostilities”. To give practical meaning to this obliga-
tion, Article 134 gciv encourages detaining powers to “ensure the return of
all internees to their last place of residence, or to facilitate their repatriation”.
Article 135 gciv provides for the costs of repatriating internees in the follow-
ing situations: returning a person to his or her pre-internment home; returning
a person taken into custody on the high seas; voluntary repatriation; forcible
repatriation; and voluntary internment.
Regarding the situation of prisoners of war [see: Prisoners of War; Intern-
ment; Assigned Residence], Article 118 gciii determines that they “shall be
released and repatriated without delay after the cessation of active hostilities”
[see: Release]. This recognizes that captivity is a painful situation that must
end as soon as possible, and that repatriation should take place rapidly. Article
109(1) gciii refers to the specific repatriation of “seriously wounded and seri-
ously sick prisoners of war” during hostilities, unless such a prisoner is not will-
ing to return. Decisions regarding the repatriation based on the state of health
of prisoners of war are made by a mixed medical commission established upon
the outbreak of hostilities, or by the medical authorities of the detaining power
[art. 112 gciii]. In addition, the fact that prisoners of war must be released and
repatriated without delay after the cessation of active hostilities is considered
to be a rule of customary law [rule 128 icrc Customary ihl Study]. Both gciii
and gciv have been supplemented by api in this regard. According to Article
85(4)(b) api, the “unjustifiable delay in the repatriation of prisoners of war or
civilians” constitutes a grave breach [see: Grave Breaches].
Interestingly, the commentary on this provision recognizes an essential dif-
ference between prisoners of war and civilians. While the former, except for
special cases, must be repatriated, civilians are entitled to leave enemy terri-
tory subject to certain restrictions, “but neither they nor the State in whose
territory they are, have an obligation in this respect” [1987 icrc Commentary
api, p. 1001]. As it can be noticed, the limitation of these provisions is revealed
in the case of a person who does not wish to be repatriated. Due to the right to
620 Repatriation, Unjustified Delay of
claim asylum and the non-refoulement principle enshrined in both ihrl and
international refugee law, detaining powers have to take into account the wish-
es of a person as to where he or she would like to be sent [see: Refugee Law].
In this sense, if an individual does not want to be repatriated because of fear
that he or she will be persecuted or ill-treated, the wishes of that individual
will prevail [see: Refugees; Non-Refoulement].
Bibliography
L. Olson, ‘Admissibility of and Procedures for Internment’, in A. Clapham, P. Gaeta,
B. Oswald, ‘End of Internment’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva
M. Sassòli, ‘Release, Accommodation in Neutral Countries, and Repatriation of Pris-
oners of War’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions:
A. de Zayas, ‘Repatriation’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public
Repatriation, Unjustified Delay of. Unjustified delay in the repatriation oc-

curs when the process of returning an individual, either a prisoner of war or
a civilian, to his or her country or land of citizenship is postponed without a
legal basis [see: Prisoners of War; Civilians; Repatriation]. There are differ-
ent reasons why repatriation can be delayed when the material conditions are
fulfilled. Firstly, the parties can delay the repatriation of civilian internees with
pending penal proceedings against them, or if they were serving a sentence
lawfully imposed [art. 133(2) gciv; see: Internment; Assigned Residence; Re-
lease]. This also applies in the case of prisoners of war [art. 119(5) gciii; see:
Internment; Release]. The icrc has affirmed that “those lawfully convicted
and serving a sentence for reasons related to the armed conflict may remain
in detention following the end of hostilities” [rule 128 icrc Customary ihl
Study]. Secondly, Article 109(3) gciii explicitly acknowledges that prisoners
of war who are sick or injured may not be willing to return to their country
of citizenship during the conflict [see: Sick and Wounded; Release]. Finally,
material reasons “such as circumstances making transportation impossible
or dangerous are acceptable” may arise [1987 icrc Commentary api, p. 1001,
fn. 32].
Reprisals against Civilians 621
One may assume that any case falling outside these circumstances and lead-
ing to a delay in repatriation is therefore unjustified under ihl. Article 85(4)
(b) api affirms that “the unjustifiable delay in the repatriation of prisoners of
war or civilians” constitutes a grave breach [see: Grave Breaches]. This crime
includes unjustified delay in the repatriation both during and after the end of
active hostilities. It must also be noticed, however, that an unjustified delay in
the repatriation of a prisoner of war is not a war crime under the icc Statute,
even though it was included as an “exceptionally serious war crime” in the 1991
ilc Draft Code of Crimes against Peace and Security of Mankind, and as a war
crime in the 1996 Draft Code of Crimes.
There seems to be some degree of uncertainty on the differences between
repatriation, release, and transfer of individuals in the hands of a party to the
conflict [see: Repatriation; Release]. Despite sharing some common features,
such as the abovementioned possible criminal proceedings, further analysis
and discussion on how these categories interact with different regimes of inter-
national law, mostly in terms of international refugee law and ihrl, is needed.
Bibliography
M. Sassòli, ‘Release, Accommodation in Neutral Countries, and Repatriation of Prison-
ers of War’ in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A
Commentary, (2015).
Reprisals against Civilians. Reprisals have not been defined in ihl treaties. In
general terms, belligerent reprisals are intentional violations of an ihl rule,
committed by a party to an armed conflict in response to a prior ihl viola-
tion by the opposing party, and aimed at inducing such party to discontinue a
policy of violation of the same or another ihl rule. Because of its paradoxical
law enforcement function, under stringent conditions, reprisals fall into the
category of sanctions of international law and can be considered legitimate
despite their inherently unlawful character. The ultimate coercive purpose of
promoting respect for the law is what distinguishes reprisals from acts of re-
venge or retaliation, which constitute simple vengeance.
Although there is a growing tendency to outlaw them altogether (seeing
that these practices are considered to be barbarous and anachronistic in a
modern international order that offers more equitable measures of law en-
forcement) belligerent reprisals have been historically accepted as a common
622 Reprisals against Civilians
wartime practice [J. De Hemptinne, ‘Prohibition of Reprisals’, in A. Clapham, P.

Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015),
p. 576]. However, limitations to their use in ihl have been progressively incor-
porated, based on the principles of proportionality, subsidiarity, and human-
ity [see: Proportionality; Humanity]. Specifically grounded in the principle
of humanity, a prohibition of reprisals against civilians has gradually gained
recognition in treaty and customary international law. The issue of whether re-
prisals against civilians are entirely proscribed in both international and non-
international armed conflicts is, however, a source of debate.
Regarding treaty law in international armed conflicts, although the Hague
Conventions of 1899 and 1907 avoided any explicit reference to the term “re-
prisals”, Article 50 of the 1907 Hague Regulations prohibits general penalties
inflicted upon the population, “on account of the acts of individuals for which
they cannot be regarded as jointly and severally responsible”.
In less ambiguous terms, Article 33(1) and (3) gciv specifically prohibits the
commission of acts of reprisals against protected persons and their property
[see: Protected Persons; Property, Private]. The icrc interpreted this prohibi-
tion as being “a safeguard for all protected persons […] absolute and mandatory
in character and thus cannot be interpreted as containing tacit reservations
with regard to military necessity” [1958 icrc Commentary gciv, p. 228]. How-
ever, Article 4 gciv limits the scope of the persons protected thereunder to
those who find themselves, in the case of a conflict or occupation, in the hands
of a party or occupying power of which they are not nationals. Therefore, al-
though a decisive step forward in the protection of civilians, Article 33 gciv
does not offer protection from belligerent reprisals to the civilian population
of a party to an international armed conflict, when located in territory still
controlled by their own party.
This lacuna was addressed by Article 51(6) api, which renders reprisals
against “the civilian population or civilians” generally unlawful. Although
the provision is only applicable to international armed conflicts, the norm
undoubtedly prohibits belligerents from taking reprisals against the enemy’s
civilian population during actual military hostilities, as opposed to only in-
stances of occupation and other situations when civilians find themselves in
the hands of the enemy, as under gciv. This provision is further complement-
ed by Article 52(1) api, protecting civilian objects from reprisals [see: Civil-
ian Objects], Article 54(4) api, which prohibits the taking of reprisals against
objects “indispensable to the survival of the civilian population” [see: Attacks
against Objects Indispensable to the Survival of the Civilian Population],
and Article 55(2) api, which prohibits attacks by way of reprisals against the
natural environment [see: Environment]. However, it is worth noting that, due
to the applicability of the above provisions to “land, air or sea warfare which
may affect the civilian population, individual civilians or civilian objects on
land” and to “attacks from the sea or from the air against objectives on land”,
as stated by Article 49(3) api, it has been suggested that the prohibition on
reprisals “do[es] not apply to ship-to-ship, ship-to-air or air-to-air combat
unless that has an incidental effect on civilians or civilian objects on land”
[C. Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’, 20 Netherlands
Yearbook of International Law (1989), pp. 53–54].
In support of and reflecting this basic prohibition of reprisals against civil-
ians in international armed conflicts, Article 60(5) of the 1969 vclt does not
allow for the termination or suspension of the operation of treaty provisions
as a consequence of their breach, when they relate to the protection of the hu-
man person. This restriction to the otherwise lawful mechanism applicable to
bilateral or multilateral treaties, applies in particular to provisions prohibiting
any form of reprisals against persons protected. Similarly, the Draft Articles on
Responsibility of States for Internationally Wrongful Acts, adopted by the ilc
in 2001, contains, in Article 50(1)(c), what may become a specific prohibition
for countermeasures to affect obligations of a humanitarian character prohib-
iting reprisals.
Accordingly, it can be undoubtedly affirmed that reprisals against civilians
in international armed conflicts are categorically proscribed under treaty law.
Whether this prohibition has already crystallised as a customary rule is, how-
ever, doubtful [rule 146 icrc Customary ihl Study]. Major military powers,
including the US, the UK, Italy, Germany, and France, have either refused to
ratify api – due to, inter alia, the provision on reprisals – or have made decla-
rations upon ratification which, although somehow ambiguous, indicate that
they reserve the right to resort to reprisals against those protected by api, if
facing serious violations of ihl against their civilian population. It has been
argued that this might indicate that the reprisals prohibitions of api “are not
declaratory of customary international law” [S. Darcy, ‘The Evolution of the
Law of Belligerent Reprisals’, 175 Mil. L. Rev. (2003), p. 229]. The icrc has in-
deed noted that “[a]lthough practice in favour of a specific ban on the use of
reprisals against all civilians is widespread and representative, it is not yet
uniform” [J.-M. Henckaerts, L. Doswald-Beck, Customary International Hu-
manitarian Law, Vol. i (2005), p. 521]. Although the icrc acknowledges that
a customary rule prohibiting reprisals against civilians during the conduct of
hostilities has not crystallized, it argues that “it is also difficult to assert that a
right to resort to such reprisals continues to exist” and that “there appears, at a
minimum, to exist a trend in favour of prohibiting such reprisals” [Henckaerts,
Doswald-Beck, p. 523].
624 Reprisals against Civilians
The issue of whether reprisals against civilians are forbidden in non-inter-

national armed conflicts is even more contested [rule 148 icrc Customary ihl
Study]. As far as treaty law is concerned, only Article 3(7) of the Amended
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and
Other Devices (Protocol ii ccw) prohibits directing such weapons by way
of reprisals against the civilian population or individual civilians [see: Con-
vention on Certain Conventional Weapons (1980); Landmines]. The 1996
amendment to this Protocol clearly affirmed that its “prohibitions and restric-
tions” are applicable to international and non-international armed conflicts.
However, neither Common Article 3 GCs nor apii contain an unequivocal ref-
erence or prohibition to reprisals. It has been argued that the silence should be
attributed to a deliberate intent to avoid any explicit reference to the notion
of reprisals, even by way of prohibition, to prevent giving the impression a
contrario that reprisals could ever be permissible in non-international armed
conflict [Henckaerts, Doswald-Beck, p. 528]. One commentator argues that the
authorisation of reprisals in non-international armed conflicts could entail
dangerous consequences. In particular, if States were allowed to target armed
groups, the latter should also have the right to resort to such measures [De
Hemptinne, p. 590; see: Belligerents, Equality of]. It has also been argued that
the institution of reprisals governs traditional inter-State relations, and there-
fore, does not apply at all between States and armed groups or between armed
groups [Henckaerts, Doswald-Beck, p. 527; see also: Darcy, p. 218].
The icrc further maintains that reprisals in non-international armed con-
flicts are incompatible with the humane treatment demanded by Common
Article 3 GCs and strongly argues against the idea that “the very concept of
lawful reprisal in non-international armed conflict has ever materialized in
international law” [Henckaerts, Doswald-Beck, p. 527]. However, this position
has been criticised as disregarding the clear intention of the GCs signatories
and of apii, who were “notoriously reluctant to concede to interference in
their domestic affairs” [Darcy, p. 217] and because State practice in non-inter-
national armed conflicts is inconsistent and almost impossible to determine.
Unfortunately indeed, evidence of the actual use of reprisals in non-interna-
tional armed conflicts does not cease to come to light. A current example can
be found in a recent report of the Independent International Commission of
Inquiry on the Syrian Arab Republic, which documents allegations that, from
late November until late December 2016 in Aleppo, pro-government forces car-
ried out executions in reprisals against civilian family members or perceived
supporters of armed group fighters [UN Human Rights Council, Report of the
Independent International Commission of Inquiry on the Syrian Arab Repub-
lic (2017), para. 91].
It is worth noting that the icty has addressed the issue of the prohibition
of reprisals against civilians in ihl, although this jurisprudence has not been
exempt from criticism. An icty Trial Chamber held that the rule that reprisals
against civilians are prohibited in all circumstances is “an integral part of cus-
tomary international law and must be respected in all armed conflicts” [Deci-
sion (Rule 61), Martić, icty, Trial Chamber, para. 17]. This finding has been
rejected – particularly regarding non-international armed conflicts – as “not
convincing” and “unsubstantiated” [F. Kalshoven, ‘Reprisals and the Protection
of Civilians: Two Recent Decisions of the Yugoslavia Tribunal’, in L. Vohrah et
al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour
of Antonio Cassese (2003), p. 492]. Furthermore, a Chamber concluded that a
customary rule prohibiting reprisals against civilians had emerged, due to the
imperatives of humanity and public conscience, even against State practice.
In the Chamber’s argument, resorting to the Martens Clause [see: Martens
Clause], this was an area “where opinio iuris sive necessitatis may play a much
greater role than usus” [Judgment, Kupreškić et al., icty, Trial Chamber, para.
527]. It further argued that reprisals were no longer necessary due to the cur-
rent availability of other “means of inducing compliance with international
law”, particularly referring to the prosecution and punishment of crimes by na-
tional and international courts [Kupreškić et al., para. 530]. Notwithstanding
the moral arguments against reprisals, commentators have found these icty’s
rulings flawed and “founded on quicksand”, which “not merely have no binding
force of precedent but lack of persuasive authority, because they do not ‘pro-
pound the correct interpretation of existing law’” [Kalshoven, pp. 504, 508].
The icc has not yet addressed the issue of reprisals in depth, although it
should be noted that Germain Katanga was convicted for an attack, which
the Trial Chamber described as reported by monuc as a “reprisal operation
against the Hema civilian population” [Judgment, Katanga, icc, Trial Cham-
ber ii, para. 854]. The Chamber further noted that it was uncontested that “the
2002 inter-communal violence escalated in Ituri and degenerated into a cycle
of reprisals and acts of vengeance among the various ethnic groups” [Katanga,
para. 700]. Further jurisprudential development may come from the icc, as
it has been argued that Article 31(3) icc Statute leaves room for reprisals to
be brought as a defense or as mitigation under Rule 145(2)(a)(i) icc rpe [M.
Krabbe, Excusable Evil – An Analysis of Complete Defenses in International
Criminal Law (2014), p. 235]. However, some maintain that such defences are
unlikely to succeed “given the increasing narrowness of the rule and the in-
creasing weight given to the principle of humanity” [A. O’Reilly, ‘Affirmative
Defenses in International Criminal Proceedings’, in C. Rohan, G. Zyberi (eds.),
Defense Perspectives on International Criminal Justice (2017), p. 512].
626 Requisitions
Bibliography
S. Darcy, ‘Retaliation and Reprisal’, in M. Weller (ed.), The Use of Force in International
Law (2015).
J. De Hemptinne, ‘Prohibition of Reprisals’, in A. Clapham, P. Gaeta, M. Sassòli (eds.),
The 1949 Geneva Conventions: A Commentary (2015).
C. Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’, 20 Netherlands Year-
book of International Law (1989).
F. Kalshoven, Belligerent Reprisals (2005).
Requisitions. Requisitions are claims to movable or immovable property or

services belonging to local municipalities (or local governments) or individu-
als made by a belligerent State. Requisitions were initially codified in modern
ihl in Article 52 of the 1907 Hague Regulations. Subsequently, the GCs and
api regulated in greater detail the right to requisition real and personal prop-
erty of aid societies [art. 34 gci], civilian medical personnel, units, equipment,
matériel and medical transports [art. 35(3) gci; art. 14 api], foodstuffs, articles,
and medical supplies [art. 55(2) gciv], civilian hospitals [art. 57 gciv], and
buildings or matériel belonging to or used by civil defence organizations [art.
63(4) api].
Because the act of requisitioning implies control by a belligerent State over
the territory of another State, requisitions are regulated only in international
armed conflict, specifically in situations of occupation [see: Occupation] and
have been incorporated in the general customary rule governing the confisca-
tion of public and private property in occupied territory [rule 51 icrc Custom-
ary ihl Study; see: Property, Private]. While ihl does not regulate requisitions
in non-international armed conflict, it would be expected that this question be
regulated under national law [J.-M. Henckaerts, L. Doswald-Beck, Customary
International Humanitarian Law, Vol. i (2005), pp. 181–182].
The right to requisition is not unfettered but subject to strict conditions,
which slightly differ in wording and substance according to the type of prop-
erty or service at stake. Generally, requisitions can only be carried out for the
needs of the occupying army; shall be proportionate to the resources of the
country; shall not prejudice the rights of the local population; and shall be
compensated [art. 52 1907 Hague Regulations; see also: Judgment, Krupp and
others, imt, paras. 1338–1345]. Additional specific conditions apply when the
requisition affects particular categories of persons or objects, notably sick and
Review Conference 627
wounded persons, medical personnel, medical infrastructures, and supplies.

For example, requisitions of property of aid societies may be carried out for
“urgent necessity” and only after “the welfare of the wounded and sick has
been ensured” [art. 34(2) gci]. Article 57 gciv integrates the two previous
requirements by specifying that requisitions must be temporary.
Requisitions taking place in the Occupied Palestinian Territories have come
to the attention of the icj, which found Israel to be in violation of Article 52
of the 1907 Hague Regulations [Advisory Opinion, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, icj, para. 132].
Requisitions carry two main risks. First, in situations of occupation, which
by definition should be temporary, long-term requisitions may result in the
permanent exploitation of resources of the occupied population, which would
run contrary to the concept of usufruct, that is to say the right to use and en-
joy (usus and fructus) another’s property and its profits [art. 55 1907 Hague
Regulations]. Second, when the specific criteria for lawful requisitions are not
fulfilled, such appropriations can amount to the war crime of pillage, provided
that the necessary elements of this crime are met [see: Pillage].
Bibliography
L. Brilmayer, G. Chepiga, ‘Ownership or Use? Civilian Property Interests in Interna-
tional Humanitarian Law’, 49(2) hilj (2008).
Retention; see: Medical Personnel; Religious Personnel; Internment
Review Conference. The general purpose of review conferences is to verify

the implementation of and respect for ihl treaties. Furthermore, review con-
ferences may be held to discuss possible amendments to treaties, adopt new
protocols, and/or consider how to ensure better compliance with ihl more
generally.
The revision of treaties is part and parcel of the codification of ihl. For
example, the Second Hague Peace Conference of 1907 was held to revise and
expand the Conventions and Declarations adopted at the First Hague Peace
Conference of 1899. The 1864 Convention for the Amelioration of the Condi-
tion of the Wounded in Armies in the Field was first amended in 1906. In 1929,
building on the latter, a new Convention was created, which was considerably
revised and expanded in 1949 and eventually became gci. In 1929, the first
Prisoners of War Convention was adopted, supplementing relevant provisions
628 Review Conference
on captured soldiers already present in the Hague Regulations iv. It was later
amended in 1939, and in 1949 became gciii.
The GCs have so far never been amended. They were instead supplemented
by api and apii in 1977 and by apiii in 2005. The possibility of amendment is
specifically envisaged by the APs [arts. 97, 98 api; art. 24 apii; art. 13 apiii]. No
revision of the APs have been undertaken so far.
Review conferences and meetings of States parties are held in relation to
specific conventions, particularly the Biological Weapons Convention (bwc),
the Convention on Certain Conventional Weapons (ccw), the Chemical Weap-
ons Convention (cwc), the Anti-Personnel Mine Ban Convention (apmbc),
and the Convention on Cluster Munitions (ccm). Review conferences general-
ly take place every five years, while meetings of States parties are held annually.
Special meetings may be organised to discuss particular or urgent issues. Dedi-
cated provisions regulate the review of and amendments to these Conventions
[arts. xi–xii bwc; art. 8 ccw; arts. viii(22), xv cwc; arts. 12–13 apmbc; arts.
12–13 ccm]. States parties may admit non-party States, international organisa-
tions, other organisations or institutions, and ngos to participate in a review
conference [e.g. art. 12(3) ccm].
Calls for revisions of the GCs have arisen after 11 September 2001 and dur-
ing the ensuing “war on terror”. It should be pointed out that any such at-
tempt must consider the existence of customary rules alongside treaty ones,
and that amendments cannot modify those ihl norms that have attained ius
cogens status [art. 53 vclt]. Moreover, the modification, codification, or cre-
ation of ihl norms faces several challenges: the major codification that the
law regulating armed conflicts already underwent; the problem of agreeing
on the law to revise or create; and the essentially political character of law-
creation [H. Lauterpacht, The Problems of the Revision of the Law of War
(1952), pp. 378–379].
Reaching consensus among States on how to deal more systematically with
the implementation, oversight, and review of ihl is probably the major ob-
stacle. By way of example, Article 7 api provides that meetings of the States
parties may be convened to consider “general problems concerning the appli-
cation of the Conventions and of the Protocol”. The idea of holding regular
meetings of States parties has been endorsed in Resolutions of the Internation-
al Conferences of the Red Cross and Red Crescent [Resolution 1, 26th Confer-
ence (1995); Resolution 1, 31st Conference (2011)]. On these bases, the icrc and
the Swiss government have jointly undertaken a four-year-long consultation
process with States, proposing to establish regular meetings of States parties
[Concluding Report: Strengthening Compliance with ihl, 32nd Conference
(2015)]. Yet, States have not accepted this proposal, instead endorsing further
Right to Leave 629
State-driven consultations aimed to “find agreement on features and functions

of a potential forum of States and to find ways to enhance the implementation
of ihl” [Resolution 2, 32nd International Conference of the Red Cross and Red
Crescent (2015)]. This is illustrative of the challenges revision processes of ihl
treaties typically face.
Bibliography
D. Kaye, S.A. Solomon, ‘The Second Review Conference of the 1980 Convention on Cer-
tain Conventional Weapons’, 96 ajil (2002).
W. Krutzsch, E. Myjer, R. Trapp (eds.), The Chemical Weapons Convention: A Com-
mentary (2014), pp. 235–237, 397–406.
H. Lauterpacht, ‘The Problems of the Revision of the Law of War’, 29 British Yearbook
of International Law (1952).
G. Nystuen, S. Casey-Maslen (eds.), The Convention on Cluster Munitions: A Commen-
tary (2010), pp. 506–509.
Right to Leave. Under ihl, the right to leave the territory of a belligerent
is expressly conferred on civilian protected persons during international
armed conflicts [art. 35 gciv; see: Civilians]. It is subject to certain reserva-
tions and accompanied by specific protection. It is not limited to a right of
repatriation to a person’s home State. It is complemented by a prohibition
against forcibly repatriating civilians against their will or transferring them
to a State where they may be persecuted [art. 45 gciv; see: Repatriation;
Non-Refoulement].
What distinguishes the right to leave under ihl from that in ihrl or refugee
law is that Article 35 gciv applies in a specific context (international armed
conflict) to a specific relationship: protected persons and the belligerent State
in which they reside. In regard to such persons in that context, therefore,
Article 35 gciv is the more specific legal rule, taking precedence over more
general human rights on freedom of movement [e.g. art. 12 iccpr]. Thus, while
the right to leave in ihrl may be associated with migration, and the same right
in refugee law may be associated with asylum, the right to leave under ihl has
its own purpose, rationale and limitations [see: Refugee Law; Refugees].
When an international armed conflict arises, civilians of enemy nationality
may wish to leave the State in which they reside. The need to ensure alien civil-
ians a right – subject to defined limits – to leave enemy territory if they wished
to do so was recognized following World War i and included in Article 2 of the
630 Rules of Engagement
1934 Tokyo Draft International Convention on the Condition and Protection of

Civilians of enemy nationality who are on territory belonging to or occupied
by a belligerent. Although the Tokyo Draft was never discussed or adopted, the
right was finally enshrined in 1949, within Article 35 gciv.
Article 35 gciv stipulates that “[a]ll protected persons who may desire to
leave the territory at the outset of, or during a conflict, shall be entitled to do so,
unless their departure is contrary to the national interests of the State”. It is a
right based on the will of the individual protected person. The same provision
also requires the establishment of regular procedures to decide on applica-
tions rapidly, as well as the creation of an appeal mechanism if the application
to leave is denied.
Rules of Engagement. Rules of engagement (RoE) are rules that “assist in

the delineation of the circumstances and limitations within which military
forces may be employed to achieve their objectives” [International Institute
of Humanitarian Law, Sanremo Handbook on Rules of Engagement (2009),
p. 1]. Their role is to allow military and political leadership to command and
control the way subordinate forces execute operations [G.P. Corn, ‘Developing
Rules of Engagement. Operationalizing Law, Policy, and Military Imperatives
at the Strategic Level’, in G.S. Corn et al. (eds.), U.S. Military Operations. Law,
Policy and Practice (2016), p. 212; see: Discipline]. They also serve the purpose
of operationalizing and ensuring compliance with ihl and international law
in general.
In military doctrines, RoE may appear in different forms including as ex-
ecute orders, deployment orders, operational plans, and standing directives.
RoE may be adopted at strategic, operational, and tactical level and they may
constitute standing rules or may be designed for specific missions. Examples of
the content of RoE provisions include the regulation of the right to use force in
individual self-defence, unit self-defence, or the protection of others who are
not members of the armed forces, but also resort to warnings, the carrying of
weapons, the treatment to be accorded to detained persons, and the position-
ing and posturing of forces.
RoE are adopted by the competent authorities of States and organiza-
tions, generally with the support of Legal Advisors to Armed Forces, and are
considered the outcome of decision-making carried out taking into account
three determining elements: policy and political factors; operational require-
ments; and the applicable legal framework. The latter can be derived from ihl,
Ruses of War 631
ihrl, ius ad bellum, and the domestic law of both the State to which the op-
erating forces belong and the State in which operations are taking places [see:
International Humanitarian Law; International Human Rights Law; Ius Ad
Bellum; National Legislation].
RoE, therefore, do not constitute international law, but they should uphold
abidance by it. Whereas RoE need to comply with ihl requirements, they may
also further limit the action permissible to the forces to which they are ad-
dressed, on the basis of political and operational needs or to comply with do-
mestic legislation. Hence, the violation of RoE provisions may sometimes give
rise to individual criminal responsibility for the breach of an ihl violation, but
it may also only trigger the infliction of disciplinary measures or of no punish-
ment whatsoever, depending on the status accorded to RoE in a given context
[see: Individual Criminal Responsibility; Discipline].
RoE are relied upon as an essential element of military planning and opera-
tions by a growing number of States, as well as other actors including nato
and the UN Department of Peacekeeping Operations. The increasing resort to
multinational operations in recent conflicts has occasioned challenges in the
operationalization of RoE.
Bibliography
G. Brouard, A. Tisseron, ‘Les Règles d’Engagement, un Object Juridique?’, 730 Revue
Défense Nationale (2010).
G.P. Corn, ‘Developing Rules of Engagement. Operationalizing Law, Policy, and Mili-
tary Imperatives at the Strategic Level’, in G.S. Corn et al. (eds.), U.S. Military Opera-
tions. Law, Policy and Practice (2016).
International Institute of Humanitarian Law, Sanremo Handbook on Rules of Engage-
ment (2009).
J.M. Prescott, ‘Tactical Implementation of Rules of Engagement in a Multinational
Forces Reality’, in G.S. Corn et al. (eds.), U.S. Military Operations. Law, Policy and
Practice (2016).
Ruses of War. Ruses of war are methods of warfare intended to confuse an en-
emy during an armed conflict. They include a wide range of examples, such as
surprises; ambushes; the passing of false intelligence; feigning attacks, retreats
or flights; the use or imitation of signals, passwords, codes, signs, voices, and
orders of the enemy; simulating quiet and inactivity; the removal of landmarks
and signposts; bogus troop movement and strength; giving large strongpoints
632 Ruses of War
to a small force; the use of dummy vehicles and positions; the use of cover;
pretending to communicate with troops or reinforcements which do not exist;
clothing the men of a single unit in the uniforms of several units so that prison-
ers and dead may give the idea of a large force, among many others. They are
permitted in international law.
The definition of ruses of war includes three elements: (i) the act in ques-
tion must be accompanied by the intent to deceive the enemy in order to gain
a military advantage; (ii) the deceiving act must be in conformity with ihl;
and (iii) those acts considered as perfidious can never constitute a permissible
ruse of war [K. Ipsen, ‘Ruses of War’, in R. Wolfrum (ed.), Max Planck Encyclo-
pedia of Public International Law (2010)].
With respect to the first element, the deception of the enemy may be
accomplished by optical (dummy positions and dummy airfields), acoustic
(engine and track noise), intelligence (bogus radio messages), or operational
means and methods (feigned attacks). They may also take advantage of psy-
chological constraints on the part of the enemy, who is forced to compro-
mise in order to prevent even more serious disadvantage [D. Fleck, ‘Ruses
of War and Prohibition of Perfidy’, 13 Military Law and Law of War Review
(1974), p. 271].
The regulation of ruses of war in international law goes back to the 1863
Lieber Code. While not expressly referring to this term, it distinguished be-
tween permissible deception in war and clandestine or treacherous attempts
to injury the enemy [art. 101 Lieber Code]. The Code prohibited the use of the
enemy’s uniforms, flags or emblems of nationality in battle [arts. 63, 65 Lieber
Code], the abuse of the flag of truce [art. 114 Lieber Code], and the violation of
armistice conditions [arts. 136, 145 Lieber Code]. The Brussels Declaration of
1874 also recognized as legitimate ruses of war and their employment neces-
sary for obtaining information about the enemy and the country. Article 24
of the Hague Regulations respecting the Laws and Customs of War on Land
(annexed to the Hague Conventions ii of 1899 and iv of 1907) stated with-
out any restriction that ruses of war are considered permissible. Ruses of war
have been also codified in api. Although it did not add substance to the old
rule, Article 37(2) api determines that ruses of war are not prohibited, and
describes these as those acts that are intended to mislead an adversary or to
induce him to act recklessly without infringing any rule of ihl, and “which are
not perfidious because they do not invite the confidence of an adversary with
respect to protection under that law”. It also includes different examples, such
as the use of camouflage, decoys, mock operations and misinformation. The
2005 icrc Customary ihl Study followed this line by affirming that ruses of
war are not prohibited as long as they do not infringe a rule of ihl, and that
State practice establishes this as a norm of customary ihl applicable in both
Saboteurs 633

ihl Study].
While it is a well-settled rule of international law, the distinction between
ruses of war and acts of perfidy can be sometimes difficult, and the question
whether it is perfidious to kill an adversary by disguising a military object as a
civilian object has recently attracted attention [K. Heller, ‘Disguising a Military
Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’
91 International Law Studies (2015), p. 517; see Perfidy].
Bibliography
D. Fleck, ‘Ruses of War and Prohibition of Perfidy’, 13 Military Law and Law of War
Review (1974).
K.J. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Per-
missible Ruse of War?’, 91 International Law Studies 517 (2015).
K. Ipsen, ‘Ruses of War’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public Inter-
S. Oeter, ‘Methods and Means of Combat’, in D. Fleck (ed.), The Handbook of Interna-
tional Humanitarian Law (2008).
P. Verry, Dictionary of the International Law of Armed Conflict (1992).
Saboteurs. A saboteur is a person that engages in acts of sabotage. Sabotage

may be defined as military action aimed to destroy, damage and/or obstruct
equipment, installations, works and/or facilities employed by the adversary.
This type of action typically occurs beyond enemy lines or in the enemy armed
forces’ rear. Saboteurs are not dealt with specifically in ihl. With regard to
international armed conflicts, their status is to be determined according to
the rules regulating combatant and prisoner of war status [see: Combatants;
Prisoners of War].
Sabotage is not prohibited as such under ihl. It is a permissible method
of warfare, as long as it is performed in compliance with the rules govern-
ing the conduct of hostilities [see: Hostilities, Conduct of]. Since sabotage
is a form of direct participation in hostilities, civilians lose their protection
from attacks while engaging in acts of sabotage, for which they may also be
prosecuted [art. 51(3) api; art. 13(3) apii; see: Direct Participation in Hostili-
ties]. In international armed conflicts, a protected person does not lose his
or her status under gciv for performing acts of sabotage. However, he or she
may be lawfully interned, lose the right of communication, and be criminally
prosecuted [see: Internment]. The guarantees of humane treatment and fair
634 Saboteurs
trial must be afforded to protected persons who engage in sabotage [art. 5(3)
gciv; see: Inhuman Treatment; Fair Trial].
Acts of sabotage are by definition carried out covertly and clandestinely,
employing surprise and ruses of war [see: Ruses of War]. Consequently, com-
batants who act as saboteurs often do not wear uniforms or other distinctive
signs that make them recognisable as such. This has consequences with re-
gard to their status upon capture. Combatants engaging in sabotage and act-
ing in plain or civilian clothes indeed forfeit the prisoner of war status they
are entitled to. This is a general legal consequence combatants face when-
ever they fail to distinguish themselves from the civilian population [see:
Combatants].
Saboteurs that lose prisoner of war status become liable to criminal pros-
ecution under the domestic law of the capturing State [e.g. Opinion, Ex Parte
Quirin et al., U.S. Supreme Court]. Saboteurs acting in plain clothes may be
prosecuted only if captured while so disguised. Combatants that succeed in
re-joining their armed forces, who are captured at a later stage, cannot be pros-
ecuted for previous acts of sabotage. In this perspective, saboteurs are subject
to the same legal regime envisaged for spies [art. 46(4) api; U.S. Law of War
Manual (2015), paras. 4.17.3, 4.17.5.1; see: Spies].
Saboteurs who are not entitled to prisoner of war status must anyway be
granted equivalent protection. Particularly, they have the right to be treated
humanely and to be tried in accordance with fair trail guarantees [arts. 44(4),
45(3), 75 api; see: Fundamental Guarantees].
It should be noted that, unless the minimum requirements of distinction
laid down in Article 44(3) api are fulfilled (carrying arms openly during and in
preparation of a military engagement), acts of sabotage may amount to perfidy
when the conditions set in Article 37 api are met [see: Perfidy]. Furthermore,
it is prohibited for saboteurs to wear the uniforms of the enemy while “engag-
ing in attacks or in order to shield, favour, protect or impede military opera-
tions” [art. 39(2) api].
In non-international armed conflicts, no question of loss of prisoner of war
status arises for members of the armed forces performing sabotage in plain or
civilian clothes. Members of organised armed groups and civilians engaging in
acts of sabotage may be prosecuted for their direct participation in hostilities
[see: Direct Participation in Hostilities]. They must at all times be treated
humanely and be guaranteed a fair trial, in accordance with treaty and cus-
tomary law applicable in non-international armed conflicts [common art. 3
GCs; arts. 4–6 apii; rules 87, 100 icrc Customary ihl Study].
Saint Petersburg Declaration (1868) 635
Bibliography
R. Baxter, ‘So-Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs’, 28
British Yearbook of International Law (1951).
K. Dörmann, ‘The Legal Situation of “Unlawful/Unprivileged” Combatants’, 849 irrc
(2003).
H. Meyrowitz, ‘Le Statut des Saboteurs dans le Droit de la Guerre’, 5 Military Law and
Law of War Review (1966).
Safe Area; see: Neutralized Zones
Saint Petersburg Declaration (1868). The 1868 Saint Petersburg “Declara-

tion Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight” (Saint Petersburg Declaration) outlawed use between the
members of the armed forces of States parties in international armed conflict
“of any projectile of a weight below 400 grammes, which is either explosive or
charged with fulminating or inflammable substances”. In 1863, the Russian mili-
tary had invented a bullet that exploded on contact with hard substances and
whose primary military utility was to blow up ammunition wagons. In 1867, how-
ever, the bullet was modified so as to explode on contact with a soft substance,
which would have meant that its use against a human body would render the
victim almost certain to be killed. The Saint Petersburg Declaration represents
the first modern treaty prohibiting the use of a specific weapon during war.
According to the icrc, under customary ihl: “[t]he anti-personnel use of
bullets which explode within the human body is prohibited” [rule 78 icrc
Customary ihl Study]. This rule applies in all armed conflicts. It is slightly
narrower than the treaty rule, which also covers “fulminating and inflammable
substances”, a formulation that would include incendiary bullets [Exploding
Bullets, Weapons Law Encyclopedia].
The icrc has reported concerns about compliance with the Saint Peters-
burg Declaration based on tests that showed that certain 12.7 mm bullets de-
veloped by States exploded in human tissue simulant. As a consequence, the
icrc convened, in 1999, a meeting of military, legal, and ballistic experts from
four States that manufactured or stocked the 12.7 mm bullet. The experts, who
participated in a personal capacity, agreed that targeting combatants with
bullets whose foreseeable effects were to explode on impact with the human
body would be contrary to the object and purpose of the Saint Petersburg
Declaration.
Subsequently, a small number of commentators have opposed the existence
of the customary rule as enunciated by the icrc. In their view, the prohibition
636 Serious Violations of the Laws and Customs of War
applies only to projectiles that are designed to explode in the human body and
thus, according to this view, projectiles designed for use against materiél and
multi-purpose projectiles may be used.
In addition to the specific prohibition it enunciated, the Saint Petersburg
Declaration is important for its preambular affirmations that “the only legit-
imate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy”; that “for this purpose it is sufficient
to disable the greatest possible number of men”; and that “this object would
be exceeded by the employment of arms which uselessly aggravate the suf-
ferings of disabled men, or render their death inevitable”. This is a basis for
the fundamental ihl rule of distinction in attack and the rule prohibiting use
of weapons that are of a nature to cause superfluous injury [see: Distinction;
Superfluous Injury and Unnecessary Suffering].
Bibliography
J.B. Bellinger iii, W.J. Haynes ii, ‘A US Government Response to the International Com-
mittee of the Red Cross Study Customary International Humanitarian Law’, 89(866)
irrc (2007).
Geneva Academy of International Humanitarian Law and Human Rights, ‘Exploding
Bullets’, Weapons Law Encyclopedia.
T. Ruys, ‘The XM25 Individual Airburst Weapon System: A “Game Changer” for the
(Law on the) Battlefield? Revisiting the Legality of Explosive Projectiles under the
Law of Armed Conflict’, 45(3) Israel Law Review (2012).
Secret Detention; see: International Convention for the Protection of All

Persons From Enforced Disappearance (2006); Inhuman Treatment
Security Corridors; see: Humanitarian Corridors
Security Detention; see: Internment
Security Zones; see: Neutralized Zones
Serious Violations of the Laws and Customs of War. Serious violations of

the laws and customs of war amount to war crimes [see: War Crimes]. This
category refers primarily to rules deriving from the 1907 Hague Convention iv
Serious Violations of the Laws and Customs of War 637
and its Regulations, some of which are included in the extended list of grave
breaches in Article 85 api [see: Grave Breaches], as well as serious violations
of Common Article 3 GCs and of apii. Serious violations of ihl constitute
war crimes in both international and non-international armed conflicts. This
is recognized as a norm of customary international law [rule 156 icrc Custom-
ary ihl Study].
The 1907 Hague Conventions and Regulations contain no provision dealing
with individual responsibility for violations of the rules contained therein, nor
do they specify a duty for States parties to prosecute those who have breached
even the most serious of the laws. Nevertheless, the imt at Nuremburg found
no obstacle to attaching individual criminal responsibility to serious violations
of these laws, noting that: “[c]rimes against international law are committed by
men, not by abstract entities, and only by punishing individuals who commit
such crimes can the provisions of international law be enforced” [Judgment,
Trial of the Major War Criminals, imt, p. 223].
Article 3 icty Statute provided the icty with jurisdiction over a non-
exhaustive list of violations of laws or customs of war emanating from the
Hague Convention and Regulations, namely: employment of poisonous weap-
ons or other weapons causing unnecessary suffering; wanton destruction of
cities, towns or villages; attack of undefended towns; seizure of, or damage
to institutions dedicated to religion, charity, education, arts or sciences; and
plunder of public or private property. Similarly, neither Common Article 3 GCs
nor apii contain provisions on grave breaches or enforcement. However, the
ictr was specifically given the subject matter jurisdiction over serious viola-
tions of these provisions [art. 4 ictr Statute]. Although the icty was not given
the same specific competence, it decided that customary international law im-
poses criminal liability for serious violations of Common Article 3 GCs and
that it had jurisdiction over such violations [Decision on the Defence Motion
for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, para.
137]. The Chamber explained that Article 3 icty Statute is a “residual clause”
which establishes jurisdiction over any serious violation of ihl not covered
by Article 2 (grave breaches), Article 4 (genocide), or Article 5 (crimes against
humanity) of the Statute [Tadić, paras. 89–93].
The icty has consistently held that for an offence to fall under the scope
of Article 3 icty Statute, four conditions must be met: (i) the violation must
constitute an infringement of a rule of ihl; (ii) the rule must be customary
in nature or, if it belongs to treaty law, the required conditions must be met;
(iii) the violation must be serious, that is to say it must constitute a breach
of a rule protecting important values and the breach must involve grave
638 Serious Violations of the Laws and Customs of War
consequences for the victim; and (iv) the violation of the rule must entail, un-
der customary or conventional law, the individual criminal responsibility of
the person breaching the rule [Tadić, para. 94]. In order to be characterised
as a “serious” violation, the conduct need not result in actual damage to per-
sons or objects, so long as the conduct endangers the life or health of persons
and objects and breaches important values (e.g. an unsuccessful attack on a
civilian population due to weapon failure, the abuse of dead bodies, or child
recruitment into the armed forces). In its practice, the icty found that viola-
tions of Common Article 3 GCs (e.g. murder and cruel treatment committed
in a non-international armed conflict) are covered by Article 3 icty Statute.
It also found that other violations of ihl, such as “acts or threats of terror
the primary purpose of which is to spread terror among the civilian popula-
tion” may constitute war crimes under the Statute so long as they meet the
four conditions [Judgment, Galić, icty, Appeals Chamber, paras. 81–98; see
Terrorism (ihl)].
During the negotiations on war crimes at Rome for the icc Statute, there
was no disagreement that the norms laid down in the 1907 Hague Conven-
tions and Regulations gave rise to individual criminal responsibility under cus-
tomary international law. This was not, however, the case for the extended list
of grave breaches laid down in api. Ultimately, the icc Statute provides for
jurisdiction over twenty-six separate serious violations of ihl committed in
an international armed conflict [art. 8(2)(b) icc Statute]. The types of viola-
tions include: attacks against the civilian population or civilian objects; attacks
against the personnel or vehicles involved in a humanitarian or peacekeeping
mission; attacks that cause widespread, long-term and severe damage to the
natural environment; attacking towns, killing or wounding combatants that
have laid down their arms; transfer of an occupying power’s population into
the territory it occupies; attacks on religious, cultural or educational buildings;
subjecting persons to physical mutilation or medical experiments; killing or
wounding treacherously; pillage; employing poisonous weapons; employing
asphyxiating, poisonous or other gases; committing outrages on personal dig-
nity; committing rape or sexual slavery; using starvation as a method of war-
fare; and conscripting children under the age of fifteen into the armed forces
or using them to participate actively in hostilities.
For war crimes committed in non-international armed conflicts, the icc
Statute has jurisdiction over eighteen separate serious violations of ihl
“other” than serious violations of Common Article 3 GCs (over which it
also exercises jurisdiction). These violations include: intentionally directing
attacks against the civilian population or individual civilians not taking a
Serious Violations of the Laws and Customs of War 639
direct part in hostilities; attacking buildings, material or transport using the

distinctive emblems of the GCs; attacking personnel or material involved in
a humanitarian or peacekeeping mission; attacking buildings dedicated to
religion, education, art, science or charity (provided they are not military
objectives); pillage, rape or sexual slavery or violence; conscripting children
under the age of 15 years into the armed forces or using them to partici-
pate actively in hostilities; ordering the displacement of the population; kill-
ing or wounding treacherously; declaring no quarter; physical mutilation or
medical or scientific experiments; destroying or seizing the property of an
adversary; employing poison or poisoned weapons; employing asphyxiating,
poisonous or other gases; employing bullets which expand or flatten eas-
ily; employing weapons, which use microbial or other biological agents, or
toxins; employing weapons the primary effect of which is to injure by frag-
ments; and employing laser weapons causing permanent blindness [art. 8(2)
(e) icc Statute]. These rules are derived from a range of sources including
the 1907 Hague Regulations, the GCs and apii. The inclusion of most of the
“Hague” rules reflects the view that these norms are also applicable in non-
international armed conflicts. Most of the provisions contained in Section i
also find support in apii.
As regards exercising jurisdiction over serious violations of ihl at the na-
tional level, State practice and opinio iuris have evolved in recent years to rec-
ognise a customary entitlement to exercise universal jurisdiction over these
crimes. Since Common Article 3 GCs clearly prohibits fundamental offences
such as murder and torture, this means that such acts “were intended to be
criminalised in 1949, as they were clearly intended to be illegal within the in-
ternational legal order” [Judgment, Delalić et al., icty, Appeals Chamber, para.
163]. Given the complementarity principle enshrined in the icc Statute, one
may assume that domestic courts would also have jurisdiction over these of-
fences, once enabling legislation (providing for domestic jurisdiction over war
crimes in the icc Statute) has been passed. For instance, Dutch courts have
prosecuted serious violations of Common Article 3 GCs as war crimes, in rela-
tion to the torture of civilians by the Soviet-backed government’s Intelligence
Unit in Afghanistan during the Afghan Civil War [Judgment, Hesamuddin
Hesam, Court of Appeal in The Hague]. Other national courts have also relied
upon customary universal jurisdiction to prosecute persons accused of serious
violations of ihl in non-international armed conflicts.
640 Seriously Endangering the Physical or Mental Health
Bibliography
M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute
of the International Criminal Court: A Commentary, Vol. i (2002).
P. Gaeta, ‘War Crimes and Other International “Core” Crimes’, in A. Clapham, P. Gaeta
G. Mettraux, ‘Dutch Courts’ Universal Jurisdiction over Violations of Common Article
3 qua War Crimes’, 4(2) jicj (2006).
Y. Naqvi, Impediments to Exercising Jurisdiction over International Crimes (2010),
pp. 32–37.
L. Reydam, ‘Belgium’s First Application of Universal Jurisdiction: The Butare Four
Case’, 1(2) jicj (2002).
A. Segall, Punishing Violations of International Humanitarian Law at the National
Level: A Guide for Common Law States (2001).
Seriously Endangering the Physical or Mental Health or Integrity of

Protected Persons. Seriously endangering the physical or mental health or
integrity of protected persons is a grave breach of api [art. 11 api; see: Grave
Breaches]. The GCs already stipulated “wilfully causing great suffering or seri-
ous injury to body or health” and “torture or inhuman treatment, including
biological experiments”, to be grave breaches [art. 50 gci; art. 51 gcii; art. 130
gciii; art. 147 gciv] if committed against persons protected by one of the GCs
[see: Protected Persons; Wilfully Causing Great Suffering or Serious Injury
to Body or Health; Torture; Inhuman Treatment]. The grave breach found
in Article 11(4) api, however, specifically seeks to protect persons from acts
or omissions that would seriously endanger the physical or mental health or
integrity of protected persons, namely unnecessary medical procedures and
experiments [1987 icrc Commentary api, paras. 462–467].
A grave breach of Article 11(4) api occurs when “[a]ny wilful act or omis-
sion […] seriously endangers the physical or mental health or integrity of any
person who is in the power of a Party other than the one on which he depends
and which either violates any of the prohibitions in paragraphs 1 and 2, or fails
to comply with the requirements of paragraph 3 [of Article 11 api]”.
First, the act must be a wilful act or omission. In contrast to paragraphs
1–3 of Article 11 api, to constitute a grave breach, the harm caused cannot
result from negligence, but must have been done wilfully, not accidentally.
This mens rea requirement excludes individuals with impaired intellectual
capacity – whether due to immaturity (such as a child), due to a mental or in-
tellectual disability, or being under the influence of drugs or medication [1987
icrc Commentary api, para. 493(a)]. Recklessness, however, can constitute
Seriously Endangering the Physical or Mental Health 641
wilfulness when the individual accepts the risk with full knowledge of what
he/she is doing [1987 icrc Commentary api, para. 493(a)]. Either a wilful act
(e.g. unnecessary surgery) or wilful omission (e.g. leaving a wound unattended
or depriving of food or water) can endanger the protected person’s physical or
mental health or integrity.
Second, to constitute a grave breach, the act or omission must “seriously
endanger” the protected person’s physical or mental health or integrity. Endan-
germent does not require that harm actually results, but there must be a high
risk that harm would result. Article 11(1) api fails to speak to the level of en-
dangerment, as that is found in the grave breach provision in Article 11(4) api.
Thus, while a higher threshold must be met for the act or omission to consti-
tute a grave breach, in that it must be serious, it remains that “the health does
not necessarily have to be affected by the act or omission, but it must be clearly
and significantly endangered” [1987 icrc Commentary api, para. 493(b)].
The challenge in applying this provision is that no bright line test exists, no
universal medical standards binding all medical professionals [see: Medical
Standards, Generally Accepted]. Thus, “[i]t is difficult to be more specific on
this point. To know whether a person’s health has or has not been seriously
endangered is a matter of judgment and a tribunal should settle this on the
basis not only of the act or omission concerned, but also on the foreseeable
consequences having regard to the state of health of the person subjected to
them” [1987 icrc Commentary api, para. 493(b)].
It is important to highlight that it is the physical or mental health or integ-
rity that may be endangered: “[p]hysical health is endangered, for example, if
a wound is allowed to become infected through lack of hygiene or care […].
Endangering physical integrity could be, for example, the amputation of an
arm for no reason, or allowing a wound to become infected to a point where
amputation becomes necessary” [1987 icrc Commentary api, para. 462]. En-
dangering mental health or integrity “refers to medical experiments which af-
fect the mental equilibrium of persons subjected to them, as well as, for ex-
ample, the practice of leaving a person in complete isolation for a very long
period of time. In addition, mental health and integrity can be particularly
endangered by the practice known as ‘brainwashing’” [1987 icrc Commentary
api, para. 463].
Furthermore, according to Article 11(4) api, for an act or omission to con-
stitute a grave breach, it must either “violate […] any of the prohibitions in
Paragraphs 1 and 2 or fail […] to comply with the requirements of paragraph 3”
of Article 11 api. Article 11(1) api prohibits endangering the physical or mental
health or integrity of a protected person by any unjustified act or omission.
This clarification – permitting only acts or omissions that are justified on
642 Seriously Endangering the Physical or Mental Health
medical and ethical grounds – is included because some justified acts or omis-
sions can endanger a person’s health [1987 icrc Commentary api, para. 467].
Two exceptions are allowed, however, namely the execution of persons law-
fully condemned to death and the omission of a surgical operation due to the
patient’s refusal [art. 11(5) api]. Article 11(1) api goes on to explicitly prohibit
“any medical procedure […] not indicated by the state of health of the person
concerned and […] not consistent with generally accepted medical standards
which would be applied under similar medical circumstances to persons who
are nationals of the Party conducting the procedure and who are in no way
deprived of liberty”.
Article 11(2) api explains that certain acts – singled out as prone to abuse
– may not be carried out even with the individual’s consent: physical mutila-
tion, medical or scientific experiments, and the removal of tissue or organs for
transplantation [see: Physical Mutilation; Medical or Scientific Experiments;
Removal of Tissue or Organs]. The only exception is if the “acts are justified
in conformity with the conditions provided for in paragraph 1” [art. 11(2) api],
meaning if the procedure will improve a person’s state of health (e.g. amputat-
ing a gangrenous arm). Article 11(3) api provides a further exception to the
prohibition on the removal of tissue or organs for transplantation, namely if
donations of blood are for transfusion or if donations of skin are for grafting,
particularly in mass casualties situations where many could die without such
donations [1987 icrc Commentary api, para. 485].
Finally, the act or omission must be directed against a person who is in the
power of a party other than the one on which he depends [art. 11(4) api]. While
the prohibition in Article 11(1) api applies not only to persons in the power of
the adverse party but also to anyone “interned, detained, or otherwise deprived
of liberty as a result of the situation referred to in Article 1 [api]”, this provision
is unique and does not extend to the grave breach provision in Article 11(4) api.
This means that the same acts committed against a party’s own nationals do
not constitute grave breaches of this Article even if deprived of liberty due to
the armed conflict. This is troublesome since it has not always proven true that
a State will care for its own nationals (e.g. in World War ii). Nevertheless, this
limited personal scope of application is consistent with other provisions of
the GCs and api, which generally only provide specific protection to persons
in the hands of the adverse party (assuming them to be at the greatest risk of
harm). However, all persons could benefit from certain minimal protections
[common art. 3 GCs; art. 75 api; rules 87, 90, 92, 93 icrc Customary ihl Study;
see: Common Article 3; Fundamental Guarantees].
Customary ihl now indicates that such acts, including violence to life or
person (in particular mutilation, cruel treatment, and torture) and subjecting
Shipwrecked 643
persons to medical or scientific experiments, not necessary for their health

or seriously endangering a person’s health, also constitute serious violations
of ihl in non-international armed conflict [rules 90, 93 icrc Customary ihl
Study; art. 8(2)(c)(i)-(ii), 8(2)(e)(xi) icc Statute].
Laura M. Olson – the views expressed are made in the author’s personal
capacity and do not necessarily represent the position or view of The Carter
Center
Bibliography
Criminal Court (2003), pp. 44–75, 229–239, 394–405, 482–484.
Harvard Law School Program on International Law and Armed Conflict, ‘The Rise of
International Legal Protections for Wartime Medical Care’ (2015).
S. Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law
(2015), pp. 79–117.
O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal
Court (2008), pp. 380–383.
Sexual Violence; see: Rape and Sexual Violence
Shipwrecked. Shipwrecked persons are defined in api as “persons, whether

military or civilian, who are in peril at sea or in other waters as a result of mis-
fortune affecting them or the vessel or aircraft carrying them and who refrain
from any act of hostility” [art. 8(b) api]. So long as these persons do not engage
in any act of hostility, they must be considered to be shipwrecked during their
rescue, until they acquire another status under the GCs. Shipwrecked persons
may become such by any cause, including by forced landings at sea, by or from
aircraft [art. 12 gcii].
A person’s designation as shipwrecked arises irrespective of whether the
person was a civilian or combatant or whether he or she was taking a direct
part in hostilities. gcii defines protected persons as members of armed forc-
es of a party to a conflict, as well as members of militias or volunteer corps,
and organized resistance movements, or any other person who has assisted
the armed forces, such as merchant marines or those spontaneously taking up
arms against invading forces [art. 13 gcii]. api expands this definition to also
include all civilians at peril at sea or in other waters [art. 8(b) api]. Although
not generally applicable to war ships, the duty to rescue all persons in distress
at sea finds support in the International Convention for the Safety of Life at Sea
(solas) [regs. 1, 3, 10, 15 solas; see: Warships].
644 Sick-Bays
Shipwrecked persons must be treated humanely and cared for by the parties
to the conflict without discrimination [see also: rule 110 icrc Customary ihl
Study]. Murder, extermination, torture, biological and medical experimen-
tation are strictly prohibited. Shipwrecked persons must not be wilfully left
without medical assistance and care [art. 12 gcii; arts. 10–11 api]. The fate of
shipwrecked persons must be recorded and reported to their families; their
remains must be respected [arts. 19–20 gcii; arts. 33–34 api; see: Missing
Persons; Dead Persons].
Cambodia
Bibliography
W.A. Solf, ‘Development of the Protection of the Wounded, Sick and Shipwrecked
under the Protocols Additional to the 1949 Geneva Conventions’, in J. Pictet,
C. Swinarski (eds.), Studies and Essays on International Humanitarian Law and Red
Cross Principles in Honour of Jean Pictet (1984).
Sick-Bays. Broadly speaking, the term “sick-bay” refers to a space dedicated

to the care of sick and injured people including on ships, in military bases,
schools, and universities. More specifically, the term is used to indicate an area
of a ship employed for the treatment and accommodation of the wounded,
sick, and shipwrecked [see: Wounded and Sick; Shipwrecked]. It is within this
meaning that the term is employed under ihl, where protection is provided
for the sick-bays of warships [art. 28 gcii].
The protection granted to sick-bays is an expression of a fundamental prin-
ciple of the GCs and ihl at large, namely respect for installations, material, and
people used for, or engaged in, assisting those in need of medical treatment.
Sick-bays are entitled to two spheres of protection under ihl. First, whenev-
er fighting occurs on board a warship, ihl requires that sick-bays are respected
and spared as far as possible. This provision is mostly seen as obsolete due to
the development of long-range weapons that have rendered the boarding of
enemy vessels during fighting unnecessary. Second, sick-bays and their equip-
ment are protected in case of capture by enemy forces through the imposition
of stringent conditions to be complied with, should enemy commanders wish
to divert captured sick-bays from their purpose.
The peculiarity of the treatment accorded to sick-bays under ihl emerges
when comparing the protection to which they are entitled to the one pro-
vided for hospital ships, i.e. vessels solely dedicated to the assistance of the
Siege 645
wounded, sick and shipwrecked [see: Hospital Ships]. Due to the fact that, un-
like hospital ships, sick-bays are by definition close to, or rather located aboard
a lawful military objective, they enjoy a less stringent protection [see: Military
Objectives]. Indeed, while the elements for the discontinuance of protection
of sick-bays and hospital ships correspond [arts. 34, 35 gcii; see: Acts Harmful
to the Enemy], unlike hospital ships, sick-bays should be respected and spared
as far as possible and are open to capture [art. 28 gcii].
Bibliography
K. Schorbel, ‘Buildings, Material, and Transports’, in A. Clapham, P. Gaeta, M Sassòli.
(eds.), The 1949 Geneva Conventions. A Commentary (2015).
Siege. A lawful method of warfare governed by ihl, siege is an operational

strategy aimed at capturing a locality or area, by surrounding it, severing its
supply and communication lines, and carrying out attacks against it. The goal
of siege is occupation or control of territory.
As a method of warfare, siege has been employed since ancient times. It
played a central role in European military history during the Middle Ages and
has survived into the contemporary era. Historical siege tactics began with a
call for the surrender of the area to be attacked, after which a blockade was
prepared [see: Blockade]. Following that, one or more of the six S’s, upon
which siege warfare rested, were employed: suborning or subverting key de-
fenders; scaring the garrisons with propaganda; sapping the walls; starving the
population; storming the defences; and shelling the besieged [B.S. Bachrach,
‘Medieval Siege Warfare: A Reconnaissance’, 58(1) The Journal of Military His-
tory (1994), p. 125]. A besieging commander was allowed to drive escaping
civilians back into the besieged area, to increase the pressure on the defenders’
commander to surrender [A.P.V. Rogers, Law on the Battlefield (2004), p. 102].
Defenders’ tactics included: stripping the countryside of food and water to
starve the attackers; undertaking sorties to attack the besiegers and their as-
sets; sapping the attackers’ mines and machines; suborning and subverting ele-
ments of the besieging forces; and shelling enemy positions [Bachrach, p. 125].
Some of the most noteworthy sieges of history are those of Carthage (149–146
bc); Jerusalem (70); Baghdad (1258); Constantinople (1453); Sevastopol (1854–
1855); and Leningrad (1941–1944). Some of the most notable sieges of the late
twentieth and early twenty-first centuries are those of Basra (1987); Sarajevo
(1992–1996); Grozny (1999–2000); Homs (2011–2014); and Aleppo (2012–2016).
646 Siege
As part of the protection afforded to the sick and wounded under ihl,
parties to an international armed conflict are encouraged to conclude local
arrangements for the removal or exchange of the sick and wounded from a
besieged or encircled area, and for the passage of medical and religious per-
sonnel and equipment on their way to that area [art. 15 gci; art. 18 gcii; see:
Wounded and Sick]. Article 17 gciv extends the category of beneficiaries to
the infirm, aged persons, children and maternity cases. The concept of besieged
or encircled area covers not only an open area encircled by the enemy forces,
but also a town or fortress offering resistance to a besieging force. The concept
can also be understood to cover a whole region containing several towns or
villages, except in so far as the besieged defenders have the necessary hospitals
and equipment within the encircled area to ensure that the wounded, sick, and
other civilians are properly looked after [1958 icrc Commentary gciv, p. 138].
What ultimately matters, as regards the concept of besieged or encircled area,
is whether the wounded and sick have been cut off from adequate medical
or spiritual care owing to ongoing hostilities [2016 icrc Commentary gci,
para. 1524].
The protection afforded by ihl to the civilian population during an inter-
national armed conflict applies at all times during sieges [see: Civilians; Civil-
ian Population]. Starvation of civilians as a method of warfare is prohibited
[art. 54(1) api; see: Starvation], thus sieges resorting to such tactics are unlaw-
ful [unsg, Protection of Civilians in Armed Conflict (2018), para. 23]. Besiegers
and defenders must also refrain from attacking, destroying, removing or ren-
dering useless objects indispensable to the survival of the civilian population
[art. 54(2) api; see Attacks against Objects Indispensable to the Survival of
the Civilian Population]. Of particular relevance in context of sieges is the
obligation enshrined in Article 23 gciv to allow for the free passage of all con-
signments of: (1) medical and hospital stores, as well as objects necessary for
religious worship intended only for civilians; and (2) essential foodstuffs, cloth-
ing and tonics intended for children under fifteen, expectant mothers and ma-
ternity cases [see: Humanitarian Relief]. While the former category may be
sent to the civilian population as a whole, consignments falling into the second
category are only entitled to free passage when they are to be used solely by
children under fifteen, expectant mothers and maternity cases. The purpose of
the distinction is to keep a strict check on the destination of consignments that
may reinforce the economic potential of the enemy forces if used for other pur-
poses [1958 Commentary gciv, p. 180]. api broadened this obligation to cover
the “rapid and unimpeded passage of all relief consignments, equipment and
personnel”, even where such assistance is destined for the civilian population
of the adverse party [art. 70(2) api].
Siege 647
Dinstein has raised the question whether, practically speaking, the prohibi-
tion of starvation does not in itself render sieges unlawful, as “the essence of
siege warfare lies in an attempt to capture the invested location through star-
vation” [Y. Dinstein, The Conduct of Hostilities under the Law of International
Armed Conflict (2010), p. 220]. Rogers opined that sieges could still be lawful,
as long as the besieging commander allowed the safe passage of civilians and
the wounded and sick out of the besieged area [Rogers, pp. 102–103].
Sieges involving bombardments which treat as a single military objective
[see: Military Objectives] a number of clearly separated and distinct military
objectives in a city, town, village or other area containing a similar concen-
tration of civilians or civilian objects are considered indiscriminate and are
prohibited [art. 51(5) api; see: Indiscriminate Attacks]. As an application of
the principle of distinction [see: Distinction], Article 58(a) api requires par-
ties to the conflict to endeavour to remove the civilian population, individual
civilians and civilian objects under their control from the vicinity of military
objectives [see: Precautions, Passive]. Where the besieged locality or area is
densely populated, such an obligation can be interpreted as requiring the de-
fending commander to allow the free passage of civilians outside that area. Not
allowing the free passage of civilians outside the area may lead to them being
used as human shields, which is prohibited under ihl [art. 28 gciv; art. 51(7)
api; see: Human Shields]. Under Article 35 gciv, protected persons (as de-
fined in Article 4 gciv) have a right to leave the besieged locality or area [see:
Right to Leave].
Successful besiegers are prohibited from pillaging the captured locality or
area [art. 28 1907 Hague Convention (iv); see: Pillage].
Besiegers and defenders must take all necessary steps to spare, as far as
possible, buildings dedicated to religion, art, science, or charitable purposes,
historic monuments, hospitals, and places where the sick and wounded are
collected, provided they are not being used at the time for military purpos-
es [see: Attacks against Historic Monuments, Works of Art and Places of
Worship; Hospitals; Hospital and Safety Zones and Localities]. Besieged de-
fenders must indicate the presence of such buildings or places by distinctive
and visible signs, which must be notified to the enemy beforehand [art. 27(1)
1907 Hague Convention (iv)].
When a siege takes place in the context of a non-international armed con-
flict, the prohibition against the starvation of civilians and the protection of
objects indispensable to the survival of the civilian population apply [art. 14
apii; rule 53 icrc Customary ihl Study]. If the civilian population is suffering
undue hardship, because of a lack of supplies essential for its survival (such as
foodstuffs and medical supplies), relief actions of an exclusively humanitarian
648 Signal
and impartial nature, conducted without any adverse distinction, must be un-
dertaken, if the besieging party so approves, where such a party is a contracting
State [art. 18(2) apii]. Historic monuments, works of art or places of worship,
which constitute the cultural or spiritual heritage of the civilian population
in the besieged area, are also protected in a non-international armed conflict
[art. 16 apii].
Kinga Tibori-Szabó – the views expressed are those of the author alone and do
not necessarily reflect the views of the Kosovo Specialist Chambers
Bibliography
B.S. Bachrach, ‘Medieval Siege Warfare: A Reconnaissance’, 58(1) The Journal of Mili-
tary History (1994).
(2010).
J. Kraska, ‘Siege’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International
Law (2017).
Signal. Signal (or, more precisely, “distinctive signal”) refers to the use of
signals or messages exclusively reserved for the identification of medi-
cal units or transports [see: Medical Units and Establishments; Medical
Transports].
While there is no treaty basis for an obligation to use distinctive signals,
Article 18(1) api does require parties to endeavour to ensure that medical units
and transports are identifiable. It goes on to provide that they may use certain
specific light/radio signals and means of electronic identification, the techni-
cal details of which draw upon international aviation and telecommunications
standards and are comprehensively listed in Annex i to api [art. 18(5) api].
The use of these distinctive signals is subject to the same provisions of the GCs
and api which relate to the use of the distinctive emblem and to the preven-
tion and repression of its misuse [see: Emblem].
The inclusion of these provisions arose on foot of a recognition, even as
early as 1949, that marking alone was no longer sufficient for the effective pro-
tection of medical units or transports, and that more modern technologies for
identification purposes were required [see: Marking].
The tendency of technological development to outpace legal regulation has
continued: in a Report to the unsc on the protection of medical care in armed
conflict (August 2016), for example, the unsg included a recommendation
that the presence of medical units or transports be recorded and mapped by
parties to armed conflicts, with that information regularly updated, including
Slavery 649
through enhanced information exchanges, real-time coordination with medi-

cal and humanitarian actors on the ground, and the use of appropriate tech-
nology. This is already taking place to some extent. Médecins Sans Frontières,
for example, provide gps coordinates to various parties in order to minimise
the potential for collateral damage to medical units or transports. The codifica-
tion and systematic adoption of such practices is a potential avenue for further
progress in preventing or mitigating unintended harm to medical facilities and
personnel in the field.
Bibliography
K. Shaheen, ‘msf Stops Sharing Syria Hospital Locations after “Deliberate” Attacks’,
The Guardian (2016).
unsc, Recommendations of the unsg, Submitted pursuant to Paragraph 13 of unsc
Resolution 2286 (2016), p. 7.
Slavery. The 1815 Declaration Relative to the Universal Abolition of the Slave
Trade was the first international instrument to condemn slavery. Subsequently,
the prohibition of slavery was included in the 1863 Lieber Code [arts. 23, 42, 58
Lieber Code]. A definition of slavery first appeared in Article 1(1) of the League
of Nations Slavery Convention of 1926, which defined slavery as “the status or
condition of a person over whom any or all of the powers attaching to the right
of ownership are exercised”. This instrument was supplemented in 1956 by the
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, outlawing debt bondage, serfdom
and inheritance or transfer of women or children. A number of human rights
instruments, normally applicable to armed conflict as well, also prohibit slav-
ery. The udhr states that “[n]o one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms” [art. 4 udhr; see also:
art. 8 iccpr].
The prohibition against slavery and slavery-related practices is recognized
as customary international law and as having attained ius cogens status. The
icj has identified protection from slavery as an obligation erga omnes arising
out of ihrl [Judgment, Barcelona Traction, Light and Power Co, Ltd. (Belgium
v. Spain) – Second Phase – icj, p. 32].
In international armed conflict, the prohibition of forced allegiance of per-
sons in occupied territory contained in the Hague Regulations [art. 45 Hague
Regulations] and the provisions of the GCs relating to the labour of prisoners
of war and civilians could result in slavery if they were abused [art. 28(2) gci;
650 Slavery
arts. 32, 33(2), 36, 49–57, 62 gciii; arts. 39–40, 51–52, 89(4), 90(3), 95, 143(1) as
well as art. 2 Annex 1 gciv; rule 95 icrc Customary ihl Study; see: Depriva-
tion of Liberty, Treatment; Workers; Compelling a Protected Person to Serve
in the Forces of the Hostile Power]. In non-international armed conflict, apii
explicitly lists the prohibition of “slavery and the slave trade in all their forms”
as a fundamental guarantee afforded to persons who do not take a direct part,
or who have ceased to take part, in hostilities [art. 4(2)(f) apii]. In addition,
persons deprived of their liberty and made to work shall enjoy similar working
conditions and safeguards applicable to the local civilian population [art. 5(1)
(e) apii].
Article 8(2)(b)(xxii) and (e)(vi) icc Statute provides that sexual slavery is
a war crime in both international and non-international armed conflict [see:
Rape and Sexual Violence]. More generally, certain forms of labour that may
acquire an enslaving character could amount to the grave breaches of inhu-
man treatment, wilfully causing great suffering or outrage upon personal dig-
nity, in international armed conflict [arts. 130 gciii; art. 147 gciv; art. 75(2)
(b) api], and to the war crime of humiliating treatment, in non-international
armed conflict [common art. 3(1)(c) GCs; see: Inhuman Treatment; Wilfully
Causing Great Suffering or Serious Injury to Body or Health; Outrage upon
Personal Dignity; Common Article 3].
Notwithstanding the fact that an international definition of slavery was
established in 1926, confirmed in 1956, and reproduced in the icc Statute, the
parameters of the term remain unsettled. Disagreement exists over the ele-
ments of the crime and the breadth of conduct this category encompasses,
especially considering that, in times of war, persons deprived of their liberty
can be asked to perform a variety of tasks, and some prisoners may feel com-
pelled or simply be willing to work, in order to obtain better conditions of
detention or larger rations.
Helen McDermott – the views expressed are those of the author alone and do
Bibliography
J. Allain (ed.), The Legal Understanding of Slavery: From the Historical to the Contem-
porary (2012).
M. Cherif Bassiouni, ‘Enslavement as an International Crime’, 23 N.Y.U. J. Int’L L. &
Pol (1991).
Y. Rassam, ‘Contemporary Forms of Slavery and the Evolution of the Prohibition of Slav-
ery and the Slave Trade under Customary International Law’, 39 Va. J. Int’l L. (1999).
P. Sellers Viseur, ‘Wartime Female Slavery: Enslavement?’, 44(1) Cornell Int’l L.J. (2011).
Small Arms and Light Weapons 651
Small Arms and Light Weapons. Small arms and light weapons (salw) are
the category of conventional weapons defined by the unga as man-portable
lethal weapons, with the ability to expel or launch projectiles by explosive
action [art. 4 International Instrument to Enable States to Identify and Trace,
in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (2005
International Tracing Instrument or iti)].
Small arms, broadly speaking, are weapons designed for individual use,
including revolvers and self-loading pistols, rifles and carbines, sub-machine
guns, assault rifles and light machine guns [art. 4(a) iti]. Light weapons are
those weapons designed for use by two or three persons serving as a crew, al-
though some may be carried and used by a single person. They include general
purpose or universal machine guns, medium machine guns, heavy machine
guns, rifle grenades, under-barrel grenade launchers and mounted grenade
launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles,
man portable launchers of anti-tank missile and rocket systems, man portable
launchers of anti-aircraft missile systems, and mortars of a calibre of less than
100 millimetres [art. 4(b) iti].
The vast majority of violations of ihl in contemporary armed conflicts are
carried out using salw [A. Feinstein, The Shadow World: Inside The Global
Arms Trade (2011)]. This is unsurprising, in view of the suitability of salw for
irregular warfare and criminality, being relatively easy to conceal and move
illicitly across international borders and within States. Nonetheless, his-
torically, and for understandable reasons, most international efforts towards
non-proliferation have been aimed at protecting against the use of non-
conventional nuclear, biological and chemical weapons, or, as they have come
to be known weapons of mass destruction.
The international regulation of salw leaves individual States with a broad
margin to determine whether and how to restrict the manufacture, sale,
export, and use of salw. The UN first addressed small arms controls in Resolu-
tion 46/36 (1991). Ten years later, in 2001, UN member States adopted the “Pro-
gramme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small
Arms and Light Weapons”. The culmination of international efforts to regulate
salw is the 2013 Arms Trade Treaty, the first multilateral treaty to regulate the
arms trade including salw [see: Arms Trade Treaty (2014)].
Much of the international regulation of salw, including the Arms Trade
Treaty, is focused on regulating international flows of salw from one State to
another. Such efforts are limited in the extent to which they can prevent the
central problem of diversion of salw, where a legitimate end-user of a weap-
ons shipment forwards the arms to another party. Arms regulation has also
had little effect on the proliferation of existing weapons in circulation. Inad-
652 Sniping
equate stockpile management following the dissolution of the Soviet Union

led to wide availability of salw for export and use in subsequent major armed
conflicts, in the African Great Lakes conflicts and in the former Yugoslavia.
Similarly, today’s stockpiles held in failed States such as Gaddafi’s Libya will, in
the absence of proper management, provide ready availability of weaponry for
tomorrow’s armed conflicts.
Cambodia
Bibliography
A. Boivin, Complicity and Beyond: International Law and the Transfer of Small Arms
and Light Weapons (2005).
S. Casey-Maslen (ed.), Weapons under International Human Rights Law (2013).
A. Clapham, ‘Weapons and Armed Non-State Actors’, in S. Casey-Maslen (ed.), Weap-
ons under International Human Rights Law (2013).
A. Efrat, Toward Internationally Regulated Goods: Controlling the Trade in Small Arms
and Light Weapons (2010).
A. Tan, The Global Arms Trade: a Handbook (2014).
Sniping. Sniping, in the military sense, consists of targeting specific enemy

individuals or objects at a long-range distance with a precision fire weapon
during combat operations. The expression sniping also comes from the fact
that the source of the fire is usually well concealed and difficult to locate
[Judgment, Galić, icty, Trial Chamber (2003), para. 183]. In the traditional
military sense, snipers operate in a team of at least two persons, the shooter
and the spotter, taking turns. They have specialized training and equipment
and their mission is to deliver discriminatory, highly accurate rifle fire against
enemy targets. According to the U.S. Army Sniper Training, the mission of
the sniper is to support combat operations and to collect and report battlefield
operations [see also: Judgment, D. Milošević, icty, Trial Chamber, para. 109].
ihl prohibits the targeting of civilians and civilian objects. It follows that
in as far as sniping is directed at legitimate military targets, it is allowed under
ihl [see: Distinction; Proportionality; Targeted Killing]. However, since the
war in the former Yugoslavia and particularly the siege of Sarajevo, sniping has
taken a different meaning and the term sniper has evolved to indicate a “shoot-
er who operates alone” and “fires at whoever he gets in sight”, with rifles that
were described as lacking precisions [Judgment, Perišić, icty, Trial Chamber,
para. 327]. Indeed, during the siege of Sarajevo, the victims of sniping incidents
Special Agreements 653
were mostly and notoriously civilians or persons not taking active part in the
hostilities.
ihl prohibits not only direct attacks against civilian objects, but also acts or
threats of violence with the primary purpose of spreading terror amongst the
civilian population [art. 51(2) api; art. 13(2) apii; see also: Terrorism (ihl)].
According to the icrc Customary ihl Study, this prohibition amounts to a
norm of customary international law applicable to both international and
non-international armed conflicts [rule 2 icrc Customary ihl Study; see also:
Judgment, Galić, icty, Appeals Chamber (2006), paras. 87–90]. Several icty
cases dealt with the campaign of sniping carried out against the civilian popu-
lation in Sarajevo and found, beyond reasonable doubt, that civilians were de-
liberately targeted [Perišić, paras. 534–549; Galić (2003), paras. 582–594; Galić
(2006), para. 106; Judgment, Karadžić, icty, Trial Chamber, paras. 3968–3970]
and that the campaign of shelling and sniping against the civilian population
in Sarajevo fell within the scope of “acts of violence”, the primary purpose of
which was to spread terror amongst the civilian population, prohibited under
ihl [Galić (2006), paras. 106, 87–107].
Cambodia
Bibliography
‘Sniper Training’, Field Manual No. 23-10, Headquarters Department of the Army
(1994).
Solferino; see: Dunant, Henry; International Committee of the Red Cross
Special Agreements. ihl provides that special agreements can be concluded

in both international and non-international armed conflicts.
Articles 6 gci and gciii, as well as Article 7 gciv demonstrate that the
Conventions’ drafters believed there to be many issues on which special
agreements could be reached between the parties to an international armed
conflict, such as protecting powers [art. 10 gci; art. 10 gciii; see: Protecting
Powers], the removal, exchange, and transport of the wounded and sick [art.
15 gci; art. 18 gcii; see: Wounded and Sick], mutual recognition of hospital
zones [art. 23 gci; see: Hospital and Safety Zones and Localities], ranks of
medical personnel [art. 28 gci; art. 33 gciii; see: Medical Personnel], return
of medical personnel [arts. 28, 31 gci], the conditions for sending individual
parcels [art. 72 gciii; art. 108 gciv], and collective relief [art. 73 gciii; art. 109
654 Special Agreements
gciv; see: Humanitarian Relief]. In some instances, the provisions referred to

recognise that the parties “may” reach agreement on a particular matter [e.g.
arts. 65, 66 gciii]. In other instances, the provisions are more coercive, stating
that the parties “shall endeavour” to reach agreement on a particular matter
[e.g. art. 109 gciii].
In addition, Articles 6 gci and gciii, as well as Article 7 gciv provide that
parties to an international armed conflict are free to conclude “special agree-
ments” on any other matters that they consider suitable for separate provision.
The only limitation is that such agreements should not limit the rights the GCs
confer on the persons protected by the different Conventions [see: Protected
Persons].
The possibility of concluding special agreements is not confined to inter-
national armed conflict. One of the final phrases of Common Article 3 GCs
states that parties to a non-international armed conflict “should further en-
deavour to bring into force, by means of special agreements, all or part of the
other provisions” of the GCs [see: Common Article 3]. Article 19 of the Hague
Convention for the Protection of Cultural Property also encourages the parties
to a non-international armed conflict to “bring into force, by means of special
agreements, all or part of the other provisions of” that Convention.
The reference to special agreements in Common Article 3 GCs was intend-
ed to encourage parties to agree on a more far-reaching legal protection [1952
icrc Commentary gci, p. 59]. In essence, the provision points out that parties
to a non-international armed conflict are free to apply more provisions of the
GCs than just Common Article 3 GCs. The Spanish Civil War may have influ-
enced the drafters’ optimism that special agreements would be regularly em-
ployed. At an early stage of this conflict, both sides agreed with the icrc (not
with each other) that they would apply the full provisions of two 1929 Geneva
Conventions on prisoners of war and the wounded and sick.
Interestingly, the 1952 icrc Commentary takes the view that the wording
“should further endeavour” in Common Article 3 GCs indicates that the par-
ties to a non-international armed conflict have a duty to try to bring about
a fuller application of the Convention by means of bilateral agreement, al-
though they have no obligation to come to any agreement [1952 icrc Com-
mentary gci, p. 59]. In its recent 2016 Commentary, the icrc has pointed out
that the benefits of two sides to a non-international armed conflict coming
together to discuss the possibility of reaching a special agreement, go be-
yond the provisions that are finally agreed. An important additional value
may also be achieved through the fact that the two parties have come togeth-
er to negotiate the content of the agreement [2016 icrc Commentary gci,
para. 842].
Specially Protected Zones 655
The parties to a non-international armed conflict are not restricted in what

may be included in such special agreements, as long as the rights of the ben-
eficiaries under Common Article 3 GCs are not limited. Special agreements
can be used to explicitly restate the application of existing obligations, such
as those found in customary international law. They may also agree to the ap-
plication of obligations that would not usually apply in a non-international
armed conflict, thereby creating new obligations for the parties.
It is sometimes debated whether peace agreements [see: Peace Treaty] or
ceasefire agreements should fall within the category of special agreements
concluded pursuant to Common Article 3 GCs. The icrc is of the view that
this is possible when such agreements contain humanitarian norms. It is note-
worthy that the negotiators to the 2016 peace agreement between the farc
and the Colombian government declared that the peace accord constituted a
“special agreement” under the terms of Common Article 3 GCs.
Bibliography
S. Casey-Maslen, ‘Special Agreements’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The
1949 Geneva Conventions. A Commentary (2015).
E. Heffes, M. Kotlik, ‘Special Agreements as a Means of Enhancing Compliance with
ihl in Non-International Armed Conflicts: An Inquiry into the Governing Legal
Regime’, 96(895/896) irrc (2014).
Specially Protected Zones. This notion encompasses all areas that enjoy spe-
cial protection from attack under ihl, such as hospital and safety zones and
localities [see: Hospital and Safety Zones and Localities], neutralized zones
[see: Neutralized Zones], non-defended localities/open towns, and demilita-
rized zones [see: Attacks against Non-Defended Localities and Demilitarised
Zones]. Their purpose is to shelter or protect more effectively persons that do
not or no longer take direct part in hostilities.
Specially protected zones share certain features. First, they may be estab-
lished by the parties to the conflict on their own initiative or upon proposal
by different actors, such as the icrc or the protecting powers [see: Protect-
ing Powers]. Second, their creation is an option, not an obligation. Third,
specially protected zones must not be employed for any kind of military ac-
tivities, including the transit of equipment and troops, or be militarily de-
fended if attacked. Fourth, their boundaries must be clearly marked in order
to be easily recognisable by the belligerents. Fifth, except for non-defended
656 Spies
localities/open towns, they can only be established by mutual agreement be-

tween the parties to a conflict.
The above-mentioned zones enjoy special protection from attack as long
as the formal requirements prescribed by treaty law are fulfilled [e.g. art. 60
api]. The loss of special protection does not extinguish the general protection
they enjoy as civilian objects or the protection afforded to the persons shel-
tered therein. Attacks against some of these zones may amount to war crimes
[art. 85(3)(d) api; art. 8(2)(b)(v), 8(2)(e)(iv) icc Statute; art. 3(c) icty Statute].
ihl treaties envisage the institution of specially protected zones in interna-
tional armed conflicts only. In non-international armed conflicts, they may be
established by way of special agreements [common art. 3(3) GCs; see: Special
Agreements]. Practice shows that specially protected zones have been created
in both international armed conflicts (e.g. in Osijek, Croatia, 1991) and non-
international armed conflicts (e.g. in Jaffna, Sri Lanka, 1990).
Specially protected zones under ihl are to be distinguished from equivalent
safe areas established by the unsc. The latter are usually established when
the civilian population is made the object of attacks in a systematic manner.
It should be noted that, by acting under Chapter vii of the UN Charter, the
unsc may impose the creation of safe areas without the consent of the parties
to the conflict or of the territorial State where they are to be located [e.g. unsc
Resolution 824 (1993)].
Bibliography
T. Desch, ‘Safety Zones’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public Inter-
B.N. Patel, ‘Protection Zones in International Humanitarian Law’, 39 The Indian Jour-
nal of International Law (1999).
Spies. Gathering information about the enemy through, for example, recon-
naissance [see: Reconnaissance Missions], satellite, or aerial imagery is not
prohibited under international law, neither in peacetime nor in wartime [arts.
24 1899 and 1907 Hague Regulations]. This is also the case for spies. Therefore,
a person engaged in espionage is not, as such, responsible for violating ihl
and, moreover, cannot be regarded as a war criminal. On the other hand, States
have criminalised espionage under their domestic laws.
Spies 657
Under the law of international armed conflict, a spy has been defined as
a person who, acting clandestinely or on false pretences, obtains or endeav-
ours to obtain information in the zone of operations of a belligerent, with
the intention of communicating it to the hostile party [arts. 29 1899 and 1907
Hague Regulations; see also: art. xxvii 1923 Hague Rules of Air Warfare]. This
definition is further supported by Article 46 api which has been described
as containing “the complete characteristics of the spy as he is defined in
the Hague Regulations” [1987 icrc Commentary api, p. 565]. Neither the
Hague Regulations nor api specify the type of information that is covered
by the definition of espionage. api clarifies that the information must be of
military value, but this applies only in relation to occupied territory [art. 46(3)
api]. It appears that each party to the conflict may determine what type of
information could fall under the definition of espionage [1987 icrc Commen-
tary api, p. 566]. As to the relevant territory to which espionage applies, the
Hague Regulations refer to “the zone of operations of a belligerent”, whereas
api points to the “territory controlled by an adverse party”. The latter term ap-
pears to be more appropriate as it would cover the entire territory of a State
and not just the areas that are directly affected by armed conflict. Finally,
api seems to limit the definition of a spy to members of armed services only,
whereas, under the Hague Regulations, any individual (including civilians)
can be considered to be a spy [cf. art. 46 api with arts. 29 1899 and 1907 Hague
Regulations].
Whether a spy has the right to prisoner of war status depends to a large ex-
tent on the timing of his or her apprehension [see: Prisoners of War]. Accord-
ing to api, any member of the armed forces of a party to the conflict who falls
into the power of an adverse party while engaging in espionage shall not have
the right to prisoner of war status [art. 46(1) api; rule 107 icrc Customary ihl
Study]. In this regard, note should be made of Article 5 gciv concerning dero-
gations, which provides that, when a State party is satisfied that an individual
protected person is “definitely suspected of”, or engaged in, activities hostile
to the security of the State on its territory, that person shall not be entitled to
protection pursuant to gciv, if that would be prejudicial to the security of the
State [see: Derogation]. It is not clear whether espionage is encompassed by
the term “activities hostile to the security of the State”, but the icrc suggests
that it “probably” is [1958 icrc Commentary gciv, p. 56]. Moreover, Article
5 gciv provides that a spy detained in occupied territory will forfeit rights of
communication contained in gciv, in cases where “absolute military security
so requires”. In any event, if a spy is caught in the act, he or she will still enjoy
the fundamental guarantees of Article 75 api, if applicable [see: Fundamen-
tal Guarantees]. Moreover, a spy may not be punished without having been
658 Spies
previously put on trial [art. 30 1899 and 1907 Hague Regulations; art. 5 gciv;
rule 107 icrc Customary ihl Study]. In cases where there is doubt as to wheth-
er a detained individual is a spy, he or she shall be presumed to have prisoner
of war status, until his or her status has been determined by a competent tribu-
nal [art. 5 gciii; art. 45(1) api; 1987 icrc Commentary api, pp. 550–551, 564].
Translating the above into practical terms, this means that a uniformed
soldier of State A sent behind enemy lines to collect information concerning
hostile State B would not be considered a spy. Also, soldiers or civilians tasked
with the delivery of despatches destined either for their own army or for that
of the enemy, and who are carrying out their mission openly, are not spies
[arts. 29 1899 and 1907 Hague Regulations]. However, a person dressed in civil-
ian clothes, collecting information about a State which could be considered to
fall under the definition of espionage (see above), with the intent of passing
on that information to a hostile State, meets the definition of a spy under ihl.
A resident of an occupied territory who gathers or attempts to gather informa-
tion of military value within that territory shall not be considered as engaging
in espionage, unless he or she does so through an act of false pretences or
deliberately in a clandestine manner. Such a person may only be deprived of
prisoner of war status if captured while engaging in espionage [art. 46(3) api].
A member of the armed forces of a State involved in the conflict, who is not a
resident of an occupied territory and who engages in espionage in the occupied
territory, may not be treated as a spy, unless he is captured before he re-joins
the armed forces to which he belongs [art. 46(4) api]. This is in line with the
Hague Regulations of 1899 and 1907, which provide that a spy who, after re-
joining the army to which he belongs, is subsequently captured by the enemy,
is treated as a prisoner of war and incurs no responsibility for his previous acts
of espionage [art. 31 1899 and 1907 Hague Regulations]. However, this is not the
case with persons who have no armed force to return to, i.e. civilians. They can,
thus, be tried for their previous acts of espionage if captured at a later time
[Y. Dinstein, The Conduct of Hostilities under the Law of International Armed
Conflict (2004), p. 211]. If a person is spying on his own State, he may be liable
for treason as well as espionage, depending on the relevant national law.
Bibliography
(2004), pp. 208–213.
F. Lafouasse, ‘L’Espionnage en Droit International’, 47(1) Annuaire Français de Droit
International (2001).
Starvation 659
Superior Responsibility; see: Command Responsibility
Starvation. ihl prohibits the starvation of civilians as a method of warfare.

Starvation is the action of subjecting to famine, i.e. to cause to perish of hun-
ger, to deprive of or keep scantily supplied with food [1987 icrc Commentary
api, para. 2089].
Up until the beginning of the twentieth century, starving the civilian popu-
lation during the conduct of hostilities was an accepted method of warfare.
Indeed, historical siege tactics included the starvation of civilians on all sides
[see: Siege]. Article 17 of the 1863 Lieber Code stated that “it is lawful to starve
the hostile belligerent, armed or unarmed, so that it leads to the speedier sub-
jection of the enemy”. After World War i, this view was gradually abandoned.
The 1919 Report of the Commission on Responsibility of the Authors of the
War and on Enforcement of Penalties listed “deliberate starvation of civilians”
as a violation of the laws and customs of war subject to criminal prosecution.
The prohibition of starvation as a method of warfare was then codified in Ar-
ticle 54(1) api and in Article 14 apii. Since then, the prohibition has become
customary international law applicable to both international and non-interna-
tional armed conflicts [rule 53 icrc Customary ihl Study].
However, incidental starvation of the civilian population as a result of the
conduct of hostilities does not violate the prohibition of starvation as a meth-
od of warfare [S. Hutter, Starvation as a Weapon: Domestic Policies of Deliber-
ate Starvation as a Means to an End under International Law (2015), p. 186].
For instance, if civilians abandon agricultural land or refrain from risking their
lives to get food supplies, the resulting consequences would not fall under the
prohibition [UK Ministry of Defence, The Joint Service Manual of the Law of
Armed Conflict, 383 Joint Service Publication (2004), p. 74]. Likewise, cutting
off enemy supply routes that also serve the transportation of food supplies
would not be contrary to the prohibition [UK Ministry of Defence, p. 74], un-
less it proves to be a covert method of warfare, aimed at starving civilians [S. Si-
vakumaran, The Law of Non-International Armed Conflict (2012), p. 424]. That
being said, the inadequate supply of the civilian population as an incidental
result of cutting off enemy routes, while not in itself unlawful under ihl, may
nevertheless result in a violation of ihrl [D. Murray, Practitioners’ Guide to
Human Rights Law in Armed Conflict (2016), p. 146; see: International Human
Rights Law].
The prohibition of starvation has several corollaries. Belligerents in both
international and non-international armed conflicts are prohibited from at-
tacking, destroying, removing, or rendering useless objects indispensable to
the survival of the civilian population, such as food stuffs, agricultural areas for
660 Starvation
the production of foodstuffs, crops, livestock, drinking water installations, and

supplies and irrigation works [art. 54(2) api; art. 14 apii; see: Attacks against
Objects Indispensable to the Survival of the Civilian Population].
Another corollary of the prohibition concerns the free passage of relief
consignments [see: Humanitarian Relief]. Even before the prohibition of
starvation was codified by api, Article 23 gciv required parties to an interna-
tional armed conflict to allow the free passage of all consignments of essential
foodstuffs, clothing and tonics intended for children under fifteen, expectant
mothers and maternity cases. api broadened this obligation to cover the “rapid
and unimpeded passage of all relief consignments, equipment and person-
nel”, even where such assistance is destined for the civilian population of the
adverse party [art. 70(2) api]. In non-international armed conflict, if the civil-
ian population is suffering undue hardship because of the lack of supplies es-
sential for its survival (such as foodstuffs and medical supplies), relief actions
of an exclusively humanitarian and impartial nature, conducted without any
adverse distinction, must be undertaken, if the besieging party so approves,
where such a party is a contracting State [art. 18(2) apii].
Also, a corollary of the prohibition of starvation is the obligation of parties
in an international armed conflict to respect and protect humanitarian relief
personnel [art. 71(2) api]. The safety and security of humanitarian relief per-
sonnel is an indispensable condition for the delivery of humanitarian relief
to civilian populations threatened with starvation [rule 53 icrc Customary
ihl Study]. While Article 18(2) apii requires that relief actions be organized
for the civilian population in need, the Protocol does not contain a specific
provision on the protection of humanitarian relief personnel. Nonetheless,
the obligation is considered a norm of customary international law in both
ihl Study].
The prohibition of starvation does not outlaw blockades, embargoes or
siege warfare, as long as their purpose is not to starve the civilian population
[see: Blockade; Embargo; Siege].
Under the icc Statute, intentionally using starvation of civilians as a meth-
od of warfare, by depriving them of objects indispensable to their survival,
including wilfully impeding relief supplies as provided for under the GCs, is
a war crime in international armed conflicts [art. 8(2)(b)(xxv) icc Statute].
While the prohibition of starvation only applies to civilians during the
conduct of hostilities, belligerents have a duty of care towards those hors de
combat, which entails a responsibility to provide such categories of persons
with adequate nourishment [2017 icrc Commentary gcii, para. 1432; art. 26
gciii; see: Hors de Combat].
State Responsibility 661
Kinga Tibori-Szabó – the views expressed are those of the author alone and do not
Bibliography
S. Hutter, Starvation as a Weapon: Domestic Policies of Deliberate Starvation as a
Means to an End under International Law (2015).
D. Murray, Practitioners’ Guide to Human Rights Law in Armed Conflict (2016).
UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict,
383 Joint Service Publication (2004).
State Responsibility. Under certain circumstances, ihl violations may not

only give rise to the responsibility of the individual(s) concerned, but also of
the State, if the violation is attributable to it [see: Individual Criminal Respon-
sibility]. The principle that States bear responsibility for violations of ihl that
are attributable to them is a rule of customary ihl, applicable in both inter-
national and non-international armed conflict [rule 149 icrc Customary ihl
Study].
The rules on State responsibility for ihl violations fall within the more
general legal framework of the rules of international law on State responsibility.
In 2001, the ilc codified those rules in the Draft Articles on State Responsibil-
ity for Internationally Wrongful Acts (ilc Draft Articles). However, in certain
respects, ihl lays down special rules that depart from the general regime of
State responsibility, consistently with Article 55 of the ilc Draft Articles.
For State responsibility for ihl violations to arise, two elements are neces-
sary and sufficient. The first requirement is that conduct, which can be an act
or an omission, be contrary to a State’s obligations under ihl (objective ele-
ment). The second element requires that the wrongful conduct be attributable
to the State (subjective element).
Two observations are in order. First, State responsibility arises as a sole con-
sequence of conduct contrary to an international obligation of the State, re-
gardless of the subjective attitude of the actor. Unless fault forms part of the
primary obligation breached, the responsibility of a State is assessed against
an objective standard. Second, in the 2001 codification by the ilc, responsi-
bility arises independently of whether the State’s wrongful conduct caused
injury, harm, or damage to another international subject. This theoretical con-
struct reflects the belief, which is gradually taking hold in the international
community, that international obligations have to be respected independent-
ly of the consequences of the violation. Thus, the purpose of international
662 State Responsibility
responsibility is not limited to compensating the damage caused to the injured

State, but encompasses restoring international legality.
According to the criteria set out in the ilc Draft Articles, as interpreted by
the icj, a State is responsible for the conduct of its organs. It is also responsible
for the conduct of persons, groups or entities that do not have the status of
organs under domestic law, but can be equated to organs on a de facto basis,
provided that they act in “complete dependence” on the State [arts. 4, 6 ilc
Draft Articles; Judgment, Case Concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia
and Montenegro), icj, para. 392]. Members of the armed forces are classic ex-
amples of State organs. Importantly, acts performed by members of the armed
forces give rise to the responsibility of that State, no matter whether (i) the act
was carried out by high or low-ranking officials; (ii) the State officials acted
against the instructions or in excess of authority, and (iii) the act was carried
out on behalf of the State or in a private capacity. ihl has long been recog-
nized as setting forth a special criterion of attribution for conduct of members
of the armed forces, encompassing acts in a private capacity. Article 3 Hague
Convention iv and Article 91 api provide that a party to the conflict “shall be
responsible for all acts committed by persons forming part of its armed forc-
es”, without any additional limitation as to the fact that those acts must be
performed in an official capacity, as is the case with the general rules on State
responsibility. The icj affirmed that Article 3 Hague Convention iv and Article
91 api reflect a rule of customary international law [Judgment, Case Concern-
ing Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), icj, para. 214].
Although attribution of conduct of the armed forces may be relatively
straightforward, in contemporary armed conflict, States tend not to fight using
their armed forces directly, but to avail themselves of armed groups, or to out-
source certain functions to private actors, such as private military and security
companies [see: Private Military and Security Companies]. Attribution may
thus become problematic. In addition, the use of certain means and methods
of warfare, such as cyber warfare, may further obscure the origin of an attack
and make attribution more difficult [see: Cyber Warfare].
Violations committed by individuals who are empowered by the law of the
State to exercise elements of the governmental authority are attributable to
the State [art. 5 ilc Draft Articles]. Attribution is contingent on the limita-
tion that the person or entity is acting in an official capacity when it carries
out the wrongful conduct. This attribution rule may prove particularly relevant
to address breaches of ihl committed by private entities, such as the employ-
ees of private military and security firms, in cases where they are delegated to
State Responsibility 663
exercise certain public functions, including acts amounting to direct participa-

tion in hostilities (for instance, the provision of tactical intelligence, operation
of weapon systems, or protection of military objectives, up to combat func-
tions proper [see: Direct Participation in Hostilities]. These functions are in-
herently “governmental” in the sense of Article 5 ilc Draft Articles.
Furthermore, States bear responsibility for ihl violations committed by
persons or entities who act on the instructions of, or under the direction or
control of, that State [art. 8 ilc Draft Articles]. For attribution under this
rule, international law requires effective control over the specific act in ques-
tion [Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, para. 405].
The conduct of insurrectional movements is also attributed to the State if
the movement becomes the new government, or to a new State if the group
succeeds in establishing one [art. 10 ilc Draft Articles].
Civilians who, on the approach of the enemy and in the absence of regular
armed forces, take up arms to defend themselves acquire the right to partici-
pate in the fighting [art. 4(A)(6) gciii; see: Combatants], but their acts are
attributable to the State for which they fight [art. 9 ilc Draft Articles]. Thus,
the State bears responsibility for ihl violations committed by such civilians.
Finally, any conduct that the State acknowledges and adopts as its own, even
if carried out by private persons or groups, can be attributed to it [art. 11 ilc
Draft Articles].
A State bears responsibility for conduct attributable to it under internation-
al law, provided that the conduct is not covered by any circumstance preclud-
ing wrongfulness. ihl foresees a more limited number of defences than those
available under the general law on State responsibility, namely consent, self-
defence, countermeasures, force majeure, distress and necessity. To the extent
that ihl rules have peremptory character (ius cogens), the applicability of any
of the above circumstances precluding wrongfulness is ruled out. In addition,
it can be contended that the defences of consent, self-defence, necessity, and
distress do not apply to the violation of ihl rules (with some limited excep-
tions). States cannot consent to violations of ihl obligations protecting indi-
viduals’ rights [art. 51 gci; art. 52 gcii; art. 131 gciii; art. 148 gciv]. The fact
that ihl obligations must be respected in all circumstances [common art. 1
GCs; art. 1 api] also supports that conclusion. The commentary to Article 21
ilc Draft Articles clearly points out that self-defence does not preclude the
wrongfulness of conduct contrary to obligations under ihl and non-derogable
human rights provisions. It is the very essence of ihl to apply equally to all
parties to an armed conflict, irrespective of the ius ad bellum [see: Ius ad Bel-
lum]. Therefore, an action in self-defence to repel an act of aggression cannot
664 Statelessness
justify the violation of the applicable rules of the ius in bello. The plea of neces-
sity is likewise unavailable to cover conduct in armed conflict, except where
expressly provided for in the primary rules. The rules of ihl are intended to ap-
ply in exceptional situations of peril, which engage States’ essential interests. It
would be contrary to the object and purpose of ihl to permit States to invoke
necessity when considerations of military necessity are already embedded in
the relevant primary rules [art. 25 ilc Commentary on the Draft Articles; see:
Military Necessity]. Similarly, it can be presumed that the formulation of ihl
rules already takes into account that individuals on the battlefield act in a state
of distress, desperately trying to save their lives and the lives of their comrades.
Therefore, States may not invoke this condition as a circumstance precluding
the wrongfulness of conduct contrary to ihl [M. Sassòli, State Responsibility
for Violations of International Humanitarian Law, 84 irrc (2002), p. 417].
States responsible for ihl violations must cease the wrongful conduct and
make full reparation [see: Reparations] for the injury caused [arts. 30–31 ilc
Draft Articles]. The consequences of the breach may vary depending on the na-
ture of the primary obligation breached, and specifically on whether it is owed
to the international community as a whole (i.e. having erga omnes character),
or has peremptory character. Whenever a State breaches one of these rules,
any State can invoke the responsibility of the wrongdoer and claim reparation
in the interest of the beneficiaries of the obligation breached. In case of seri-
ous breaches of ius cogens rules, States must cooperate to bring the situation
to an end and must not recognize it as lawful. It is unclear, however, whether
States other than the injured State may take countermeasures in the collective
interest [art. 54 ilc Draft Articles]. As can be readily seen, in an international
community that remains dominated by States, these play a crucial role in the
enforcement of ihl.
Bibliography
A. Pellet, ‘The Definition of Responsibility in International Law’, in J. Crawford,
A. Pellet, S. Olleson (eds.), The Law of International Responsibility (2010).
M. Sassòli, State Responsibility for Violations of International Humanitarian Law, 84
irrc (2002).
Statelessness. The term statelessness concerns the situation where a person

has no nationality. This definition is endorsed in the UN Convention relat-
ing to the Status of Stateless Persons (1954). According to Article 1, the term
Statelessness 665
“stateless person” means “a person who is not considered as a national by any

State under the operation of its law”.
This definition of de jure statelessness is to be distinguished from the broad-
er notion of de facto statelessness. Although the term de facto statelessness
is not defined in any international instrument, it commonly refers to persons
who possess a nationality, but are unable to enjoy the rights attached to it,
because they cannot prove their nationality, or because the State of their na-
tionality is not able or willing to offer them protection. A typical example of
de facto statelessness is that of refugees who are not protected by the State
of their own nationality [see: Refugees]. Nevertheless, refugees may also be
de jure stateless persons when they have no nationality. In such a case, an
arbitrary deprivation of nationality may amount to persecution and trigger the
grant of the refugee status under the UN Convention relating to the Status of
Refugees [see: Refugee Law].
De jure statelessness may arise either at birth, because a child does not
acquire an original nationality according to the law of any State, or subse-
quently, if a person loses his or her nationality without possessing or acquiring
another one. The loss of a nationality may be due to different reasons, includ-
ing State succession, change of civil status (adoption, marriage and divorce),
discrimination and arbitrary deprivation of nationality, or administrative
barriers and lack of documentation. The most common cause of statelessness
results from a conflict between the domestic legislation of two or more coun-
tries governing nationality. Such a conflict of laws frequently happens because
of the broad discretion of States in this area and the consequent lack of coor-
dination between their respective legislation.
Although this situation could be resolved by developing common rules of
international law, it has long been held that the conferral and loss of national-
ity fall primarily within the domestic jurisdiction of each State. In 1923, the
pcij acknowledged that “[t]he question of whether a certain matter is or is
not solely within the jurisdiction of a State is an essentially relative question;
it depends upon the development of international relations. Thus, in the pres-
ent state of international law, questions of nationality are, in the opinion of
this court, in principle within this reserved domain [Advisory Opinion No. 4,
Nationality Decrees in Tunis and Morocco, pcij, Series B No. 4, p. 2].
The same view has been restated in Article 1 of the 1930 Hague Conven-
tion on Certain Questions Relating to the Conflict of Nationality. Since then,
however, this traditional account no longer reflects the current state of inter-
national law. Indeed, the discretion of States has been partially mitigated by
the subsequent development of international law in two main directions. On
the one hand, several specialized treaties have been adopted with the view to
666 Statelessness
preventing statelessness. The key instrument in this area is the UN Convention

on the Reduction of Statelessness of 30 August 1961. Although this treaty does
not prohibit statelessness as such, State parties are bound by certain specific
and qualified duties to grant nationality to persons who would otherwise be
stateless. However, the 1961 Statelessness Convention still suffers from a low –
albeit growing – number of ratifications. The same observation can be made
at the regional level with regard to the European Convention on Nationality of
6 November 1997 and the Council of Europe’s Convention on the Avoidance of
Statelessness in relation to State Succession of 19 May 2006.
On the other hand, ihrl is playing a growing role in domesticating the tra-
ditional competence of the State in the field of nationality [see: International
Human Rights Law]. It, thus, compensates for the fairly limited number of
ratifications to specialized treaties and represents, in turn, the main source
of binding norms in this area. In 1984, the IACtHR observed that, “[d]espite
the fact that it is traditionally accepted that the conferral and recognition of
nationality are matters for each State to decide, contemporary developments
indicate that international law does impose certain limits on the broad pow-
ers enjoyed by the States in that area, and that the manner in which States
regulate matters bearing on nationality cannot today be deemed to be within
their sole jurisdiction; those powers of the State are also circumscribed by their
obligations to ensure the full protection of human rights” [Advisory Opinion,
Proposed Amendments to the Naturalization Provision of the Constitution of
Costa Rica, IACtHR, para. 32].
Although the right to nationality endorsed in Article 15 udhr remains con-
troversial and arguably premature, international law provides two significant
restrictions to State’s sovereignty. First, the prohibition on arbitrary depriva-
tion of nationality is commonly considered as a principle of customary inter-
national law [hrc, Human Rights and Arbitrary Deprivation of Nationality:
Report of the unsg (2009), paras. 19–22]. This rule has been explicitly endorsed
in several human rights treaties, such as the 2006 UN Convention on the Rights
of Persons with Disabilities (crpd) [art. 18], the 1969 achr [art. 20], and the
2004 Arab Charter of Human Rights [art. 29]. It has also been acknowledged by
the ECtHR [Judgment, Kuric and others v. Slovenia, ECtHR, Grand Chamber,
para. 376] and the ilc in the 1997 Draft Articles on Nationality in Relation to
the Succession of States [art. 16].
This rule finds additional support in the customary law principle of non-
discrimination as restated in all human rights treaties. Accordingly, any discrim-
ination in refusing or withdrawing nationality is prohibited by international
law [see also: art. 5(d)(iii) of the 1965 Convention on the Elimination of All
Statelessness 667
Forms of Racial Discrimination (cerd); art. 9(1) of the 1979 Convention on the

Elimination of All Forms of Discrimination against Women (cedaw)].
Second, children have a right to a nationality under customary international
law as restated in a broad range of both universal and regional human rights
treaties, including the iccpr [art. 24], the Convention on the Rights of the
Child (crc) [art. 7], the 1990 Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families [art. 29], the 1990 African
Charter on the Rights and Welfare of the Child [art. 6] and the 2005 Covenant
on the Rights of the Child in Islam [art. 7].
ihrl is also crucial for protecting the rights of stateless persons, since most
internationally recognized human rights apply without regard to nationality
or statelessness (except for the right to entry and the right to vote). States par-
ties to the 1954 Convention relating to the Status of Stateless Persons are also
bound to grant them basic rights and guarantees that are very similar to the
refugee status.
ihl is also plainly applicable to stateless persons on two main grounds.
First, they are protected as civilians provided they are not directly participat-
ing in hostilities [see: Civilians; Direct Participation in Hostilities]. In such a
case, stateless persons benefit from the general protection to the civilian pop-
ulation both in times of international and non-international armed conflicts
[arts. 48–58 api; arts. 13–18 apii].
Second, stateless persons are also unambiguously considered as protected
persons in international armed conflicts [see: Protected Persons]. The defini-
tion of protected persons under Article 4 gciv includes indeed any persons
who “find themselves, in case of a conflict or occupation, in the hands of a
Party […] of which they are not nationals”. They accordingly enjoy the pro-
tection of all the provisions of gciv, including notably the right to leave, the
grounds and procedures governing internment or assigned residence, as well
as protection against deportation and forcible transfer [see: Right to Leave;
Internment; Assigned Residence; Deportation or Transfer of Civilians].
Their status as protected persons has been further confirmed by Article 73
api. However this provision begs more questions than it provides answers,
because it is curiously more restrictive than Article 4 gciv. Article 73 api is
limited to persons who were considered as stateless persons under the relevant
international instruments or domestic legislation “before the beginning of hos-
tilities”. According to the icrc Commentary, this qualification does not mean
that those becoming stateless persons after the hostilities are deprived from
the protection granted by gciv as “this would be contrary to the ratio legis
of the article, which is to improve their protection” [1987 icrc Commentary
668 Statutory Limitations
api, para. 2979]. In other words, the most favourable treatment guaranteed by
Article 4 gciv remains plainly applicable and neutralizes the restrictive stance
of Article 73 api.
Vincent Chetail – the views expressed are those of the author alone and do not
Bibliography
C. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, 10(1–2)
International Journal of Refugee Law (1998).
J. Bhabha (ed.), Children without a State: A Global Human Rights Challenge (2011).
unhcr, Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within
the Context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to
the Status of Refugees (2014).
L. van Waas, Nationality Matters: Statelessness under International Law (2008).
D. Weissbrodt, C. Collins, ‘The Human Rights of Stateless Persons’, 28(1) Hum. Rts. Q
(2006).
Statutory Limitations. Statutory limitations prevent a criminal prosecution

from taking place if a certain period of time has passed since the commission
of the offence. The principle behind such limitations is that, with the passage
of time, it becomes much more difficult to ensure fair proceedings. As evi-
dence deteriorates or is destroyed, and witnesses become less reliable and/or
pass away, ascertaining the truth becomes much more challenging. For these
reasons, statutory limitations are well known in most municipal legal systems,
although less so in common law systems than in civil law ones.
The issue of statutory limitations and war crimes rose up the international
agenda in the 1960s. The moment approached when domestic statutory limita-
tions would begin to apply to alleged Nazi war criminals. In response, national
legislation was passed to remove limitations for certain categories of offenc-
es. Internationally, work began on the Convention on the Non-Application
of Statutory Limitations to War Crimes and Crimes against Humanity, which
was adopted by the unga in 1968. However, there was a significant amount
of opposition to the Convention. Many States were dissatisfied with how
the issue of retroactivity was dealt with, and ratification has remained low
(fifty-five States). Ratification of the similar European Convention on the Non-
Applicability of Statutory Limitations to Crimes against Humanity and War
Crimes 1974 has also been low (eight States).
The pertinent question is whether there is a customary international law
rule that removes statutory limitations for war crimes. Opinion on this is
Superfluous Injury and Unnecessary Suffering 669
divided. While the Nuremberg and Tokyo Charters, as well as the icty and
ictr Statutes, are silent as to statutory limitations, in the practice of the icty
they have not been applied, even as mitigating circumstances in sentencing.
The drafters of the icc Statute took a more direct approach, and Article 29 icc
Statute expressly renders statutory limitations inapplicable to crimes within
the icc’s jurisdiction, including war crimes. However, the drafting of Article 29
was controversial. Indeed, the drafting process revealed little unanimity, and
before the final text of the provision was reached, a number of different op-
tions were put forward, including leaving the decision on time bars to be made
in individual cases.
Some States considered Article 29 icc Statute to be a codification of cus-
tomary law as it stands, whereas others considered it to be progressive devel-
opment and not yet reflective of custom. The fact that this same debate was
conducted when the 1968 Convention was drafted suggests that little progress
has been made towards recognizing a customary rule. That being said, the icrc
Customary ihl Study sets out evidence for finding that the non-applicability
of statutes of limitations to war crimes is now a norm of customary interna-
tional law [rule 160 icrc Customary ihl Study], and a number of changes to
domestic legislation support this. The question therefore remains open.
Emma Irving – the views expressed are those of the author alone and do not
Bibliography
R.A. Kok, Statutory Limitations in International Criminal Law (2007).
R. Miller, ‘The Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity’, 65(3) The ajil (1971).
W. Schabas, ‘Article 25. Individual Criminal Responsibility’, in W. Schabas (ed.), The
International Criminal Court: A Commentary on the Rome Statute (2016).
C. Van Den Wyngaert, J. Dugard, ‘Non-Applicability of Statute of Limitations’, in
A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International
Criminal Court: A Commentary (2002).
Summary Proceedings; see: Regularly Constituted Courts
Superfluous Injury and Unnecessary Suffering. Under the law of armed

conflict, it is prohibited to use means and methods of warfare which are of
a nature to cause superfluous injury or unnecessary suffering. The prohibi-
tion is one of the principles of the law of armed conflict regulating means
(and more recently also methods) of warfare, which the icj has held to be
670 Superfluous Injury and Unnecessary Suffering
“intransgressible” and “cardinal” [Advisory Opinion, Legality of the Threat or

Use of Nuclear Weapons, icj, p. 257; see: International Humanitarian Law,
General Principles of]. Throughout its evolution, the prohibition is an expres-
sion of the underlying precept that armed conflict inevitably entails a certain
amount of suffering and injury of persons who are lawful targets, but that the
notions of military necessity and humanity impose limitations on the right of
parties to an armed conflict to adopt means of injuring the enemy [see: Mili-
tary Necessity; Humanity]. As such, the prohibition is one of the few instanc-
es in which the law of armed conflict grants a certain degree of protection
to persons who are lawful targets [see: Combatants; Direct Participation in
Hostilities].
The prohibition of superfluous injury and unnecessary suffering has a
long historical pedigree. Early sources include the 1868 St. Petersburg Decla-
ration [see: Saint Petersburg Declaration (1868)], the 1874 Brussels Declara-
tion (albeit never formally adopted), the 1899 Hague Declarations concerning
Asphyxiating Gases and concerning Expanding Bullets [see: Geneva Gas Pro-
tocol (1925); Chemical Weapons Convention (1992); Dum-Dum (Expanding)
Bullets] as well as the 1899 and 1907 Hague Regulations [arts. 23(e) 1899 and
1907 Hague Regulations; see Hague Convention (iv) Concerning the Laws
and Customs of War on Land (1907); Hague Regulations (1907)]. In con-
temporary conventional law of armed conflict, the principle is stipulated in
Article 35(2) api, the Preamble to the ccw (as well as Article 6(2) Protocol ii
and Article 3(3) Amended Protocol ii thereto), and the Preamble of the Ot-
tawa Convention [see: Convention on Certain Conventional Weapons (1980);
Anti-Personnel Mine Ban Convention (1997)]. A violation of the prohibition
also amounts to a war crime in international armed conflicts and, thus, entails
individual criminal responsibility in accordance with the icc Statute [art. 8(2)
(b)(xx) icc Statute]. The prohibition of the use of means and methods of war-
fare which are of a nature to cause superfluous injury or unnecessary suffer-
ing is also a customary rule applicable in international and non-international
Although the prohibition of superfluous injury and unnecessary suffering
displays a significant degree of continuity throughout its evolution, its actual
wording has evolved somewhat. The earlier expressions in the Hague Regula-
tions of 1899 and 1907 provided that the rule extends to the employment of
“arms, projectiles, or material calculated to cause unnecessary suffering”. How-
ever, already in 1899, the authentic French text described prohibited arms,
projectiles, or material as those “propres à causer des maux superflus”, which
would translate into arms, projectiles, or material “of a nature to cause super-
fluous injury”. The French text hence indicated a more objective standard that
Superfluous Injury and Unnecessary Suffering 671
considers the actual property of arms, projectiles, or material, rather than the
intention of those who have developed them, as determinative of whether or
not the prohibition is violated. Subsequent treaty texts and Rule 70 icrc Cus-
tomary ihl Study employ the more objective standard “of a nature to”, with the
exception of Article 6(2) Protocol ii ccw, which prohibits the use of booby-
traps “designed to” cause superfluous injury or unnecessary suffering, thereby
indicating a return to the more subjective standard. Article 3(3) of Amended
Protocol ii ccw combines the objective and subjective standards by prohibit-
ing the use of any mine, booby-trap or other device “which is designed or of a
nature to cause superfluous injury or unnecessary suffering”. Furthermore, the
prohibition has evolved as far as the objects of regulation are concerned. While
initially pertaining to “arms, projectiles, or material” in the Hague Regulations
of 1899 and 1907, the provision in api, the Preambles of the ccw, Ottawa Con-
vention, and the icc Statute extend to “weapons, projectiles and material and
methods of warfare”. The icrc Customary ihl Study instead refers to “means
and methods”.
A number of rules of conventional and customary law of armed conflict pro-
hibit certain weapons, projectiles and material as falling foul of the prohibi-
tion of superfluous injury and unnecessary suffering. These include explosive
bullets, expanding bullets, non-detectable fragments, blinding laser weapons,
poison or poisoned weapons, and asphyxiating gases. Beyond these specific
rules, some States have also extended the prohibition of superfluous injury
and unnecessary suffering to lances or spears with a barbed head, serrated-
edged bayonets, biological and chemical weapons, certain booby-traps, anti-
personnel mines, torpedoes without self-destruction mechanisms, incendiary
weapons and nuclear weapons [J.-M. Henckaerts, L. Doswald-Beck, Custom-
ary International Humanitarian Law (2005), Vol. i, pp. 243–244]. However, as
the icrc points out, “[t]here is insufficient consensus concerning all of these
examples to conclude that, under customary international law, they all vio-
late the rule prohibiting unnecessary suffering” [Henckaerts, Doswald-Beck,
p. 250].
Beyond the aforementioned examples – which are subject to distinctive
conventional or customary regulation as a specific manifestation of the gen-
eral prohibition of superfluous injury and unnecessary suffering – and broad
agreement that that general prohibition refers to the effect of a given weapon
on persons who are lawful targets, the meaning and significance of that prohi-
bition is surrounded by a fair degree of uncertainty. These uncertainties per-
tain to matters such as how the suffering can be determined to be unnecessary
and the injury to be superfluous and how the prohibition applies in the realm
of methods of warfare. The problem of finding generally acceptable answers to
672 Superior Orders, Defence of
such questions is epitomized by the unsuccessful attempt of the icrc to clarify

the normative contours of the prohibition in its SIrUS Project, initiated in 1996
and withdrawn in 2001.
Notwithstanding the controversies surrounding the aforementioned ques-
tions, the prohibition of superfluous injury and unnecessary suffering retains
its relevance in the context of the weapons review by the organization “Article
36” and as driver of regulating or prohibiting certain weapons, projectiles and
material [see: New Weapons].
Jann K. Kleffner – the views expressed are those of the author alone and do not
Bibliography
M. Aubert, ‘The International Committee of the Red Cross and the Problem of Exces-
sively Injurious or Indiscriminate Weapons’, 279 irrc (1990).
M.G. Cowling, ‘The Relationship between Military Necessity and the Principle of Su-
perfluous Injury and Unnecessary Suffering in the Law of Armed Conflict’, 25 South
African Yearbook of International Law (2000).
H. Meyrowitz, ‘The Principle of Superfluous Injury or Unnecessary Suffering: From
the Declaration of St. Petersburg of 1868 to Additional Protocol i of 1977’, 299 irrc
(1994).
Superior Orders, Defence of. In armed forces, subordinates owe obedience

to their superiors [see: Discipline]. Strict compliance with orders of superi-
ors is key to the efficient functioning of an army [see: Orders]. Subordinates
disobeying their commanders face disciplinary sanctions or prosecution for
insubordination. However, an unlawful order leading to the commission of an
international crime creates the predicament for the subordinate of obeying his
superior, on the one hand, and adhering to the dictates of international law,
on the other hand [see: Individual Criminal Responsibility]. The question is
whether and under which conditions the subordinate can raise the superior
order defence and be absolved of blame.
In the pre-World War ii era, subordinates committing a violation as a result
of an order could, in principle, advance the superior order defence (respondeat
superior principle) and thus avoid criminal responsibility [Judgment, Dover
Castle, Imperial Court of Justice (German Reichsgericht), reprinted in 16 ajil
(1922), p. 707; contra Judgment, Llandovery Castle, Imperial Court of Justice
(German Reichsgericht), reprinted in 16 ajil (1922), p. 722].
The imt reversed this trend and excluded the superior order defence
(absolute liability principle). Indeed, Article 8 imt Charter (and similarly art. 6
Superior Orders, Defence of 673
imtfe Charter) stipulated that acting pursuant to an order of the government

or of a superior “shall not free [the subordinate] from responsibility, but may
be considered in mitigation of punishment if the Tribunal determines that
justice so requires”. The test whether mitigation would be available to the ac-
cused was “not the existence of the order, but whether moral choice was in
fact possible” [Judgment, Trial of Major War Criminals, imt, Part xxii, p. 466].
In light of the nature and extent of the crimes, the imt refused palliating
punishment.
Article II(4)(b) Control Council Law No. 10 and subsequent Nuremberg
trials confirmed the principle of absolute liability with the possibility of miti-
gation of sentence [see Judgment, Brandt et al. (Medical Case), US Military
Tribunal, p. 227; Judgment, List et al. (Hostage Case), US Military Tribunal,
pp. 1236–1238]. In the words of the US Military Tribunal “[t]he subordinate is
bound only to obey the lawful orders of his superior and, if he accepts a crimi-
nal order and executes it with a malice of his own, he may not plead superior
orders in mitigation of his offense” [Judgment, Einsatzgruppen, US Military
Tribunal, pp. 469–471].
The 1949 GCs established the obligation upon States to “provide effective
penal sanctions for persons committing, or ordering to be committed, any of
the grave breaches of the [Conventions]” [arts. 46 gci; 50 gcii; 129 gciii; 146
gciv; see: Penal Sanctions and Legislation]. However, they remain silent as
to whether and under which conditions the subordinate alleged to have com-
mitted a grave breach may raise the superior order defence. Likewise, efforts
to include such a regulation in the 1977 APs failed. Thus, this question is left to
customary law [see: International Customary Law].
Based on existing case-law at the time, Principle iv of the 1950 Principles of
International Law Recognized in the Charter of the Nuremberg Tribunal and
its Judgment stipulated: “[t]he fact that a person acted pursuant to order of his
Government or of a superior does not relieve him from responsibility under
international law, provided a moral choice was in fact possible to him” [see
also: rules 154–155 icrc Customary ihl Study].
The formulation of Article 8 imt Charter was later imported, with minor
modifications, into the statutes of other international(ized) tribunals created
in the 1990s and thereafter [art. 7(4) icty Statute; art. 6(4) ictr Statute; art.
6(4) scsl Statute; art. 3(3) stl Statute; art. 29(4) eccc Law; Section 21 untaet
Regulation No. 2000/15; art. 16(1)(d) Law on Specialist Chambers and Specialist
Prosecutor’s Office]. The icty appears to have accepted mitigation in case the
accused had a choice whether or not to commit the crimes and if the order
was not manifestly illegal [Sentencing Judgment, Bralo, icty, Trial Chamber,
paras. 55–56].
674 Superior Orders, Defence of
Article 33(1) icc Statute, in its chapeau, reaffirms the principle of absolute
liability: “[t]he fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, shall not relieve that person of criminal respon-
sibility”. The order, whether military or civilian, may be written or oral, direct
or implied, and must be issued by the competent organ. It may also stem from
a prescription of law. A contentious issue remains whether the term “govern-
ment” applies only to recognized governments or also to de facto governments.
It is argued that, in a civilian context, the superior must have effective control
over the subordinate, a factor that is presumed in the military context.
Article 33(1)(a)-(c) icc Statute allows for an exception to this principle if
three conditions are cumulatively met: (a) the person was under a legal obliga-
tion (at the time of the commission of the crime) to obey orders of the govern-
ment or the superior in question; (b) the person did not know that the order
was unlawful; and (c) the order was not manifestly unlawful. Article 33(2) icc
Statute provides that “orders to commit genocide or crimes against human-
ity are manifestly unlawful”. This means that in the context of genocide and
crimes against humanity, the icc Statute embraces the absolute liability prin-
ciple. Conversely, orders to commit war crimes or the crime of aggression are
not considered, per definitionem, manifestly unlawful, but must be assessed
on a case-by-case basis. The District Court of Jerusalem famously stated that
assessing the manifest unlawfulness of an order is not a question of “[…] mere
formal illegality, […] discernible only to the eyes of legal experts, but a flagrant
and manifest breach of the law, certain and necessary illegality appearing on
the face of the order itself […]” [Judgment, Eichmann, District Court of Jeru-
salem, para. 219].
The superior order defence must be distinguished from the perpetrator’s
mens rea, which pertains to his or her knowledge and intent, and from the con-
cept of duress. While the perpetrator is acting under duress when subjected to
a coercive environment, the perpetrator acting pursuant to a superior order
complies with a legal duty. It is conceivable that both concepts factually over-
lap. Lastly, in case the subordinate errs about the lawfulness of the order that
is not manifestly unlawful, the defence of mistake of law may apply [art. 32(2)
icc Statute].
The fulfilment of the narrow conditions set out in art. 33(1)(a)-(c) icc Stat-
ute leads to the exclusion of the subordinate’s individual criminal responsi-
bility and, thus, to an acquittal. It is yet unclear whether the defence will be
considered by the icc as an excuse (excluding the culpability of the wrongdo-
er) or a justification (rendering the illicit conduct lawful). In case the superior
order defence is unsuccessfully raised, the accused may still seek a mitigation
of the sentence [art. 78(1) icc Statute; rule 145 icc rpe].
Targeted Killing 675
Bibliography
Y. Dinstein, ‘The Defence of “Obedience to Superior Orders” in International Law’
(2012).
P. Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal
Court versus Customary Law’, 10 ejil (1999).
J. Liang, ‘Defending the Emergence of the Superior Orders Defense in the Contempo-
rary Context’, 2 Goettingen Journal of International Law (2010).
Targeted Killing. The term targeted killing has not been defined in interna-
tional law. The most commonly accepted understanding is that the term refers
to the use of lethal force with the aim of killing individually selected persons
who are not in the physical custody of those targeting them. Thus, targeted
killings are characterized by four cumulative elements: (1) targeted killings
always involve the use of lethal force against human beings, i.e. any forcible
measure capable of causing the death of a human being; (2) targeted killings
always involve the intent, premeditation and deliberation to kill and must be
distinguished from unintentional, accidental, or negligent killing (intent),
from voluntary killing driven by impulse or passion (premeditation), or from
killing occurring as the incidental result of an operation pursuing another
purpose (deliberation); (3) targeted killings are always directed at individually
selected persons, as opposed to collective, unspecified or random targets; and
(4) contrary to judicial and extra-judicial executions, targeted killings are di-
rected against persons who are not in the physical custody of those targeting
them.
1. The Relevant Legal Frameworks

The international lawfulness of targeted killings depends primarily on ihrl
and, in situations of armed conflict, ihl [see: International Human Rights
Law; International Humanitarian Law]. State-sponsored targeted killings car-
ried out within the territory of another State may also involve the law gov-
erning the use of inter-State force [see: Ius Ad Bellum], most notably the UN
Charter, and even a single targeted killing can amount to an act of aggression
[e.g. unsc Resolution 611 (1988)].
While ihrl and ihl determine the lawfulness of targeted killings with re-
spect to the targeted individual, the law of inter-State force determines their
lawfulness with respect to the territorial State. All three legal frameworks can
simultaneously apply to the same targeted killing, and no targeted killing
676 Targeted Killing
contravening one of these frameworks can be considered as internationally

lawful. For example, a targeted killing carried out in inter-State self-defence
or with the consent of the territorial State may not violate the prohibition of
inter-State force [arts. 2(4), 51 UN Charter], but may still be prohibited under
the provisions governing the targeting of persons under ihl or the use of lethal
force under the human right to life. Conversely, in a situation of armed conflict,
the targeted killing of an enemy commander in the territory of an adjacent
third State may not violate ihl or the human right to life, but may violate the
prohibition of inter-State force enshrined in the UN Charter. When examining
the permissibility of a particular targeted killing with regard to the targeted
person, the applicable normative standards depend on whether the killing in
question was employed as a method of law enforcement or as a method of
warfare.
2. Targeted Killing as a Method of Law Enforcement

The law enforcement paradigm applies at all times, except during the conduct
of hostilities in armed conflict [see: Law Enforcement; Hostilities, Conduct
of]. It comprises all rules and principles of international law governing the ex-
ercise by States of authority or power to maintain, restore or otherwise impose
public security, law, and order. This includes the duty of States to respect and
protect the inherent right to life of all individuals under their authority or di-
rectly exposed to their conduct. The right to life entails, on the one hand, that
States are prohibited from taking human life arbitrarily. On the other hand, it
may even require States to use lethal force in order to protect human life from
unlawful attack.
Under the law enforcement paradigm, a targeted killing can be permis-
sible only in very exceptional circumstances, namely where it, cumulatively:
(a) aims to prevent an unlawful attack on human life (proportionality); (b) is
strictly necessary for this purpose (necessity); (c) is the result of an operation
which is planned, prepared, and conducted so as to minimize, to the greatest
extent possible, the recourse to lethal force (precaution); and (d) States must
regulate the use of force and firearms by law enforcement officials in compli-
ance with these standards.
3. Targeted Killing as a Method of Warfare

The paradigm of hostilities comprises all rules and principles of international
law governing the resort to means and methods of warfare between parties
to an armed conflict [see: International Armed Conflict; Non-International
Armed Conflict]. As far as targeted killings are concerned, the most relevant
rules are those governing the targeting of persons under ihl.
Targeted Killing 677
Accordingly, in the conduct of hostilities, a targeted killing can be permis-

sible only when it cumulatively: (a) is directed against a legitimate military
target [see: Distinction]; (b) is planned and conducted so as to avoid errone-
ous targeting, as well as to avoid, and in any event to minimize, incidental civil-
ian harm [see: Precautions, Active]; (c) is not expected to cause inciden-
tal civilian harm that would be excessive in relation to the concrete and direct
military advantage anticipated [see: Proportionality]; (d) is suspended when
the targeted person surrenders or otherwise falls out of combat [see: Hors de
Combat]; and (e) is not otherwise conducted by resort to prohibited means or
methods of warfare. Last but not least, (f) even in the conduct of hostilities,
targeted killings are not permissible when the threat posed by the targeted per-
son can manifestly be neutralized through capture or other non-lethal means,
without additional risk to the operating forces or the civilian population [see:
Military Necessity; Humanity].
4. Conclusion
In sum, the specific purpose of targeted killings is to deprive individually se-
lected persons of their lives, without the fair trial requirement that applies
to the death penalty, without the requirement of imminent danger of death
or serious injury that applies to situations of self-defence, and without the
prohibition of no survivors-tactics that applies to military hostilities in warfare.
Although the method as such is not necessarily unlawful, it raises signifi-
cant legal and policy challenges, and even formally lawful targeted killings are
generally perceived as deeply disturbing. This illustrates that targeted killing,
both as a method of law enforcement and as a method of warfare, is located at
a point of tension between formal legality and moral legitimacy and, therefore,
at the extreme end of the scale of permissible State action.
Nils Melzer – the views expressed are those of the author alone and do not nec-
essarily reflect the views of the United Nations or any other institution the author
is or has been affiliated with
Bibliography
O. Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’, 5(2) jicj
(2007).
A. Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’, 5(2) jicj
(2007).
A. Cohen, Y. Shany, ‘A Development of Modest Proportions: The Application of the
Principle of Proportionality in The Targeted Killings Case’, 5(2) jicj (2007).
D. Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitimate Means of Defence?’, 16(2) ejil (2005).
678 Taxation
N. Melzer, ‘Targeted Killing or Less Harmful Means? Israel’s High Court Judgment on
Targeted Killing and the Restrictive Function of Military Necessity’, 9 Yearbook of
N. Melzer, Targeted Killing in International Law (2009).
R.S. Schondorf, ‘The Targeted Killings Judgment: A Preliminary Assessment’, 5(2) jicj
(2007).
Taxation. Taxation in occupied territories is regulated by Articles 48 and 49

of the 1907 Hague Regulations [see: Occupation]. Article 48 provides that, if
the occupying power collects taxes, it shall do so “as far as is possible” in ac-
cordance with rates in force, to cover the expenses of the administration of
the occupied territory. The term taxes comprises all direct and indirect com-
pulsory payments, including customs duties, excises, and tolls of whatever
kind, provided that they are owed to the treasury of the State. Indeed, taxes
owed to local authorities may not be levied by the occupying power, although
it may assist or supervise their collection [Y. Dinstein, The International Law
of Belligerent Occupation (2009), p. 125]. Article 49 1907 Hague Regulations
concerns new taxes (“contributions”) and stipulates that such additional pay-
ments may only be levied to cover the needs of the occupying army or the
administration of the territory. An occupying power may reduce existing taxes
and is not obliged to levy contributions. It may not, however, change the whole
taxation system overnight.
While the levying of new taxes must comply with Article 49 1907 Hague
Regulations, the rates of existing taxes may be increased by the occupying
power, where necessary [Dinstein (2009), p. 126]. This could be the case
where occupation is prolonged or where inflation causes the costs of the
administration to substantially increase. Whereas taxes under Article 48 1907
Hague Regulations may only be levied to cover the costs of the adminis-
tration of occupied territory, contributions under Article 49 may also be
charged to cover the needs of the occupying army. This does not, however,
permit an occupying power to use the revenue for its own enrichment or
to cover costs of the general war effort outside the occupied territory. Nor
may contributions be a guise for imposing fines on the civilian population.
In this regard, Article 50 1907 Hague Regulations provides that “[n]o general
penalty, pecuniary or otherwise, shall be inflicted on the population on ac-
counts of the acts of individuals for which they cannot be regarded as jointly
and severally responsible”. Article 51 1907 Hague Regulations prescribes the
process for collection of contributions: they may only be collected pursuant
to a written order under the responsibility of a commander-in-chief and
Taxation 679
a receipt must be given to contributors. Contrary to Article 52 1907 Hague

Regulations, where receipt is redeemable in cash at a later date, the receipt
provided for in Article 51 is evidence of payment and does not mean that
the occupying power must redeem the payment in cash, as “money contribu-
tion is tantamount to an extraordinary tax rather than a compulsory loan”
[Dinstein (2009), p. 127].
One issue that arose in a case before the Israeli Supreme Court is whether
taxes are exhaustively dealt with in Articles 48 and 49 1907 Hague Regulations,
or whether these provisions must be read against the general backdrop of
Article 43, which provides that existing laws should be respected unless the
occupying power is absolutely prevented from doing so [see: Legislation in
Occupied Territory]. The term “absolutely prevented” has been construed in
terms of a necessity to change existing law [Y. Dinstein, ‘Legislation under Ar-
ticle 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding’,
hpcr Occasional Paper Series (2004), p. 4]. In the vat case, a new excise on
services and products was introduced in the occupied Palestinian territories,
mirroring legislation introducing a value added tax (vat) in Israel. It sought
to enhance the free flow of goods and services between the occupied terri-
tories and Israel. This new tax was challenged as incompatible with Articles
48 and 49 1907 Hague Regulations, as it was not levied for the needs of the
army or for the administration of the occupied territories. The Supreme Court
dismissed the petitions, circumventing the conditions imposed in Articles 48
and 49 by reading these provisions against the exception of necessity in Article
43 [Judgment, Bassil Abu Aita et al. v. The Regional Commander of Judea and
Samaria et al., Israel Supreme Court, pp. 273–74]. This interpretation is “inno-
vative” and doctrine is divided on whether the provisions on taxation should
be read against the more general provision in Article 43 1907 Hague Regula-
tions [Dinstein (2009), p. 128; I. Venzke, ‘Contributions’, in R. Wolfrum (eds.),
The Law of Armed Conflict and the Use of Force, Max Planck Encyclopedia of
Public International Law (2015)].
ated with
Bibliography
Y. Dinstein, The International Law of Belligerent Occupation (2009).
Y. Dinstein, ‘Legislation under Article 43 of the Hague Regulations: Belligerent Occupa-
tion and Peacebuilding’, hpcr Occasional Paper Series (2004).
I. Venzke, ‘Contributions’, in R. Wolfrum (ed.), The Law of Armed Conflict and the Use
of Force, Max Planck Encyclopedia of Public International Law (2015).
680 Terrorism (ihl)
Terror, Spreading of; see: Terrorism (ihl)
Terrorism (ihl). Besides the general concept of terrorism in international

law [see: Terrorism (International Law)], the notion of terrorism appears in
ihl too. Of note, whilst terrorism is commonly associated with actions of non-
State entities, ihl provisions on the matter also cover acts carried out by State
armed forces.
1. Terror, Spreading of
Article 51(2) api and Article 13(2) apii provide that “[t]he civilian population
as such, as well as individual civilians, shall not be the object of attack. Acts
or threats of violence the primary purpose of which is to spread terror among
the civilian population are prohibited” [see: Attacks against Civilians and
Persons Hors de Combat]. The prohibition against attacks primarily aimed
at spreading terror is deemed to have attained customary status [rule 2 icrc
Customary ihl Study]. Although this violation has not been expressly listed
as one of the war crimes over which the icc has jurisdiction, attacks primarily
aimed at spreading terror have been considered as a war crime before the icty
[Judgment, Galić, icty, Trial Chamber, paras. 91–130].
The required objective element corresponds to threats or “acts of violence
directed against the civilian population or individual civilians not taking di-
rect part in hostilities causing death or serious injury to body or health within
the civilian population” [Galić, para. 133; see: Civilians; Direct Participation
in Hostilities]. This definition rules out the possibility that attacks directed
against combatants could be classified as acts of terror [see: Combatants],
unless they violate other rules of ihl (e.g. they are indiscriminate or dispro-
portional). For instance, as underlined in an Italian case, an attack directed
against combatants could be defined as an act of terror, as long as its conse-
quences would entail inevitable and disproportionate harm to life and limb
of civilians [Judgment, Bouyahia Maher Ben Abdelaziz, Italian Court of
Cassation, p. 308, para. 4(1)]. The icty further specified that actual death or
serious injury are not required, as long as the conduct in question entailed
“grave consequences” for the victims, and thus is serious enough to amount to
a war crime [Judgment, D. Milošević, icty, Appeals Chamber, paras. 33–34].
The required mental element is constituted by the general intent to direct
those acts of violence against the civilian population, in combination with the
specific intent (dolus specialis) of spreading terror among the civilian popula-
tion [Galić, para. 133]. As explained by the icrc, every single hostile act perpe-
trated during an armed conflict generates fear among the civilian population
and the enemy armed forces, to a certain degree [1987 icrc Commentary api,
Terrorism (ihl) 681
para. 1940]. Whilst, at times, even attacks on members of the armed forces are
carried out in a particularly brutal manner (with the aim to intimidate them),
Article 51(2) api and Article 13(2) apii only and specifically prohibit those at-
tacks whose primary purpose is to spread terror among the civilian popula-
tion. Of note, actual terrorisation of the civilian population is not a required
element of the crime, as long as the perpetrators had the required specific in-
tent of spreading terror and the conduct could abstractly produce such result
[Galić, para. 104].
The “primary purpose” of spreading terror has mostly been inferred from
circumstantial evidence, related to the nature of the targets, the manner in
which attacks were carried out, their timing and duration, and the resulting
military advantage (if any). A clear example is the sniping and shelling cam-
paign put in place by the Bosnian Serb army during the siege of Sarajevo [Galić,
paras. 592–594; see: Sniping]. As to the meaning of “terror”, it has mostly been
equated with an “extreme fear” going beyond the alarm normally generated by
armed conflict and is intended to demoralize and cause extreme insecurity in
the population [Judgment, D. Milošević, icty, Trial Chamber, paras. 885–886].
2. Acts of Terrorism
Article 33 gciv states that “[c]ollective penalties and likewise all measures
of intimidation or of terrorism are prohibited” [see: Collective Punishment]
and Article 4(a)(2) apii provides that “acts of terrorism” are and shall remain
prohibited at any time and in any place whatsoever. These provisions are de-
signed to protect individuals who find themselves under the authority of an
adverse party to the conflict. As such, the prohibition covers also acts directed
against installations, but indirectly harming civilians [1987 icrc Commentary
api, para. 4538]. In the past, such acts of terrorism have mostly been perpe-
trated by State authorities, especially in the context of belligerent occupation
[M. Sassòli, ‘Terrorism and War’, 4(5) jicj (2006) p. 967; see: Occupation].
Recently, this category has been revived by scsl jurisprudence, not without
a certain dose of conflation with the category of threats or acts of violence
primarily intended to spread terror [S. Krähenmann, ‘Foreign Fighters under
International Law’, 7 Geneva Academy Briefing Series (2014), p. 28]. Indeed,
whilst Article 3(d) scsl Statute (like Article 4(d) ictr Statute) establishes
the scsl’s jurisdiction over a seemingly broad category of “acts of terrorism”,
this Court has consistently referred to the aforementioned icty jurispru-
dence to interpret such expression. Hence, the scsl affirmed that a variety of
practices – including enslavement, sexual violence and use of child soldiers –
may amount to acts of terrorism, if their primary purpose is to spread terror
among the civilian population, as opposed to another military or utilitarian
682 Terrorism (ihl)
purpose [Judgment, Sesay et al., scsl, Appeals Chamber, paras. 678–679; Judg-
ment, Taylor, scsl, Appeals Chamber, paras. 265, 268; see: Slavery; Rape and
Sexual Violence; Child Soldiers]. Notably, the scsl has also controversially
maintained that acts or threats of violence against a person’s property are also
susceptible of amounting to acts of terrorism [Judgment, Taylor, scsl, Trial
Chamber, para. 408; see: Property, Private].
Hence, despite a clear understanding that threats or acts of violence pri-
marily intended to spread terror among the civilian population are prohibited
under ihl and amount to a war crime, some of the elements of this prohibi-
tion are in need of further clarification.
3. Assessment
Considering the wide range of international legal consequences of labelling
a certain individual or group as terrorists, one should wonder what the rela-
tionship is between the IHL-specific provisions and the general notion of ter-
rorism in international law. The particular stigma associated with terrorism
and the narrative accompanying the fight against this phenomenon have sig-
nificantly impacted fundamental notions ihl [see: Non-International Armed
Conflict; Combatants; Internment; Deprivation of Liberty, Treatment;
Terrorist Organisations; Anti-Terrorist Operations], but in so doing “acts of
terrorism” have not necessarily been defined according to the relevant provi-
sions of the GCs and the APs. Whilst terrorism-related activities governed by
international conventions and international organizations’ resolutions may
also be prohibited when performed during an armed conflict, some coordina-
tion with the relevant rules of ihl seems to be necessary. In particular, if it
makes sense to label as “terrorist” acts intended to “directly or indirectly coerce
a national or international authority to take some action, or to refrain from
taking it” in peace time [Interlocutory Decision on the Applicable Law, stl,
Appeals Chamber, para. 85; see also: unsc Resolution 1566 (2004), para. 3],
this would mean considering as terrorist any hostile act performed by a non-
State party during an armed conflict, regardless of its compliance with ihl
rules. In turn, this could constitute a perverse incentive for armed groups not
to comply with ihl obligations, since they could be treated as terrorists in
any case.
In this respect, some international legal instruments laudably attempt to
bring some clarity and coordination. The 1997 International Convention for
the Suppression of Terrorist Bombings, for instance, provides, in Article 19(2),
that its provisions do not cover activities performed by armed forces (includ-
ing those of non-State actors) in the context of an armed conflict, whenever
governed by ihl. In light of this example, until a comprehensive definition of
Terrorism (International Law) 683
terrorism is adopted in international law, it is desirable that the application of

the various existing (and partial) definitions of acts of terrorism is, inasmuch
as possible, coordinated to avoid overlapping and ambiguities.
Antonio Coco – the views expressed are those of the author alone and do not
Bibliography
J. Beqirai, ‘Terror and Terrorism in Armed Conflicts: Developments in International
Criminal Law’, in F. Pocar, M. Pedrazzi, M. Frulli (eds.), War Crimes and the Conduct
of Hostilities: Challenges to Adjudication and Investigation (2013).
A. Coco, ‘The Crime of Terrorism in Times of Armed Conflict as Interpreted by the
Court of Appeal of England and Wales in R v. Mohammed Gul’, 11(2) jicj (2013).
K. Keith, ‘Deconstructing Terrorism as a War Crime: The Charles Taylor Case’, 11(4) jicj
(2013).
Terrorism (International Law). In its popular understanding, the term ter-

rorism tends to refer to an act that is wrong, evil, illegitimate, illegal, and a
crime. The term has come to be used to describe a wide range of violent, and
sometimes not-so violent, conduct. Acts characterised as terrorist in nature
can occur both in conflict and peace-time. They may constitute crimes in do-
mestic and international law, and they are motivated by a complex matrix of
reasons and ideals. Their characterisation can also depend upon the person or
institution using the label and may even change over time.
Besides the references to terrorism in ihl [see: Terrorism (ihl)], terror-
ism has been addressed more generally under international law as well. The
UN Terrorism Prevention Branch has described terrorism as a unique form of
crime, often containing elements of warfare, politics, and propaganda. The in-
ternational community has nevertheless failed to reach consensus on a com-
prehensive and concise definition of terrorism, instead leaving interpretation
of the term to individual States or within the context of specific treaties on
counter-terrorism, such as the financing of terrorism within the International
Convention on the Suppression of the Financing of Terrorism. Consensus is ap-
parent, however, on the treatment of the term in objective terms, rather than
subject to the particular purposes or motivations of the terrorist actor. In its
reaffirmation of the 1994 Declaration on Measures to Eliminate International
Terrorism, for example, the unga reiterated in its Resolution 50/53 (1995) that
“criminal acts intended or calculated to provoke a state of terror in the general
public, a group of persons or particular persons are in any circumstances un-
justifiable, whatever the considerations of a political, philosophical, ideological,
684 Terrorist Organizations
racial, ethnic, religious or any other nature that may be invoked to justify them”
(emphasis added).
In the absence of a comprehensive and universally-accepted definition of
terrorism, the UN Special Rapporteur Martin Scheinin has offered, as a best
practice in the fight against terrorism, a model definition of the term, drawn
from unsc Resolution 1566 (2004) [UN Human Rights Council, Report of
the Special Rapporteur on the Promotion and Protection of Human Rights
and Fundamental Freedoms while Countering Terrorism (2010), para. 28].
First, “[t]he action [or attempted action]: (a) Constituted the intentional tak-
ing of hostages; or (b) Is intended to cause death or serious bodily injury to one
or more members of the general population or segments of it; or (c) Involved
lethal or serious physical violence against one or more members of the general
population or segments of it”. Second, “[t]he action is done or attempted with
the intention of: (a) Provoking a state of terror in the general public or a seg-
ment of it; or (b) Compelling a Government or international organization to
do or abstain from doing something”. Third, “[t]he action [or attempted action]
corresponds to: (a) The definition of a serious offence in national law, enacted
for the purpose of complying with international conventions and protocols
relating to terrorism or with resolutions of the unsc relating to terrorism; or
(b) All elements of a serious crime defined by national law”.
A consequence of the absence of a comprehensive definition of terrorism is
that there is no single universal treaty dealing with the prevention and punish-
ment of terrorism. Instead, a sectorial approach is taken under numerous con-
ventions and protocols, directed at the protection of potential terrorist targets
(internationally protected persons, hostages, civil aviation, and operations at
sea) or concerning the means through which terrorists and terrorist organi-
zations operate (nuclear terrorism, plastic explosives, terrorist bombings, and
terrorist financing).
Alex Conte – the views expressed are those of the author alone and do not
Bibliography
A. Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’, 4(5)
jicj (2006).
B. Saul, Defining Terrorism in International Law (2006).
Terrorist Organizations. The label of terrorist organization is used to de-

scribe organizations or groups that are involved in one way or the other with
Terrorist Organizations 685
terrorism. Hinging on the notion of terrorism, the question of what is a terror-

ist organization hence encounters much of the same difficulties as the (lack
of a) definition of terrorism [see: Terrorism (International Law)].
The concept of terrorist organization plays a role in two different areas,
namely sanctions and criminalization of membership.
First, sanctions are often put in place against terrorist organizations or
groups and individuals involved or associated with them. On the universal lev-
el, the groups listed by the isil (Da’esh) and Al-Qaida Sanctions Committee,
which was established pursuant to the unsc Resolution 1267 (2001), are com-
monly referred to as terrorist groups or organizations. Yet, association with Al-
Qaeda or Da’esh is an essential condition for a group to be listed, although the
association criteria are purposefully broad. In this regard, the unsc Working
Group, which was established pursuant to Resolution 1566 (2004) and set up in
the aftermath of the Beslan hostage crisis, was mandated to examine “practical
measures to be imposed upon individuals, groups or entities involved in or as-
sociated with terrorist activities, other than those designated by the Al-Qaida/
Taliban Sanctions Committee” – now the isil (Da’esh) and Al-Qaida Sanctions
Committee. However, due to disagreement over which groups are to be consid-
ered terrorist groups or organizations, the Working Group has yet to produce
recommendations.
On the regional level, the EU set up an autonomous sanctions list, not linked
to the list maintained by the 1267 Sanctions Committee, which imposes sanc-
tions on “persons, groups and entities” that “have been involved in terrorist acts
within the meaning of Article 1(2) and (3) of Common Position 2001/931 cfsp”
[Council of the European Union, Implementing Regulation (EU) 2017/1420].
Similarly, many States have established their own terrorist groups sanctions
list. For example, the US maintains a list of “Foreign Terrorist Organizations”,
i.e. a designation made by the Secretary of State if the organization in ques-
tion is foreign, “engages in terrorist activity”, and threatens the security of the
United States [Section 219 U.S. Immigration and Nationality Act].
Second, in particular after the attacks of 11 September 2001, proscription of
terrorist organizations and criminalization of membership in such proscribed
organizations became more common, in particular at the national and regional
level. However, none of the international treaties on specific terrorist offences
includes membership in a terrorist organization as a crime. After defining “ter-
rorist group” as “a structured group of more than two persons, established over
a period of time and acting in concert to commit terrorist offences”, the 2002
EU Council Framework Decision 2002/475/JHA only required States to pun-
ish directing a terrorist group and “participating in the activities of a terrorist
686 Terrorist Organizations
group, including by supplying information or material resources, or by funding

its activities in any way, with knowledge of the fact that such participation
will contribute to the criminal activities of the terrorist group”. The definition
and punishable offences related to a terrorist group remained the same in the
“EU Directive 2017/541 of the European Parliament and of the Council of 15
March 2017 on combating terrorism and replacing Council Framework Deci-
sion 2002/475/JHA”. However, while the 2005 Council of Europe Convention
on the Prevention of Terrorism only required criminalization of recruitment
for terrorism, including “to join an association or group” for the purposes of
terrorist offences [art. 6 Council of Europe Convention on the Prevention of
Terrorism (2005)], the new 2015 Additional Protocol to the Council of Europe
Convention on the Prevention of Terrorism, adopted against the background
of the so-called foreign fighter phenomenon [see: Foreign Fighters], added
“participating in an association or group for the purpose of terrorism” [art. 2
Additional Protocol to the Council of Europe Convention on the Prevention of
Terrorism (2015)]. Similarly, on the national level, many States establish mem-
bership in a proscribed terrorist organization as a punishable offence. For ex-
ample, the UK criminalizes membership and support of a proscribed terrorist
organization [sections 11, 12 U.K. Terrorism Act (2000)], i.e. a group that “com-
mits or participates in acts of terrorism”, “prepares for terrorism”, “promotes or
encourages terrorism”, including the glorification of terrorism, or is “otherwise
concerned with terrorism” [Section 3 U.K. Terrorism Act (2000)].
Sanctioning criminal organizations or criminal membership in such orga-
nizations is neither new nor inherently controversial. Yet, the designation of
specific groups as terrorist groups has always been controversial, including due
to the uncertainty surrounding the definition of terrorism and its relationship
with the right to self-determination. Common examples include the Palestine
Liberation Front, the Tamil Tigers, or Hamas. The role played by the executive
(both national governments and international executive organs like the unsc)
in designating or proscribing terrorist groups has come under scrutiny. On the
one hand, proscriptions, but also designations for sanctions purposes, may un-
dermine the role of criminal courts in assessing the terrorist nature of an or-
ganization [H. Duffy, The “War on Terror” and the Framework of International
Law (2015), p. 203]. On the other hand, the evidentiary basis for executive des-
ignations is frequently challenged. For example, challenges brought by Hamas
and the Tamil Tigers against their inclusion on the autonomous EU sanctions
list focused on the factual basis for their listing and whether sufficient reasons
were given [Judgment, Council v. ltte, European Court of Justice; Judgment,
Council v. Hamas, European Court of Justice]. Moreover, criminalizing mem-
bership in various forms led to concern that such legislation may lead to guilt
Terrorist Organizations 687
by association and undermine the principle of individual criminal responsibil-

ity [Duffy, p. 203; see: Individual Criminal Responsibility].
Many proscribed or designated terrorist groups are also parties to an armed
conflict, putting pressure on fundamental concepts of ihl and conflating the
legal regimes governing terrorism and armed conflict. Regardless of the label-
ling of a particular group, ihl applies to activities of terrorist organizations
or groups if they are a party to the armed conflict, including when measures
taken against such groups during armed conflicts are labelled “anti-terrorist”
or “counter-terrorist” operations [see: Anti-Terrorist Operations; Armed
Groups]. The lawfulness of the means and methods used by the parties to an
armed conflict are immaterial for the application of ihl [M. Sassòli, L. Rouil-
lard, ‘La Définition du Terrorisme et le Droit International Humanitaire’, 20
Revue Québécoise de Droit International (2007)], as is the purported aim or
ideological motivation of a group [icrc, International Humanitarian Law and
the Challenges of Contemporary Armed Conflicts (2011)].
At the same time, ihl only applies during times of armed conflict [see:
International Armed Conflict; Non-International Armed Conflict]. Hence,
it does not apply to the activities of terrorist organizations or the measures
taken against them in peace time. This is particularly relevant when it comes
to the use of force and detention where ihl is more permissive than ihrl [see:
International Human Rights Law; Deprivation of Liberty]. For example, any
discussion of the targeted killing of a suspected member of a terrorist organi-
zation routinely starts with a discussion of the applicable legal regime [see:
Targeted Killing; Drones].
The increasing criminalization of membership in proscribed terrorist orga-
nizations, including when they are parties to an armed conflict, often leads to
the criminalization of mere participation in hostilities and acts not prohibited
by ihl. With increasing transnational criminal cooperation to suppress acts
of terrorism, including when connected to an armed conflict, it is feared that
armed groups, including designated or proscribed terrorist groups, may lose
any incentive they have to comply with ihl.
Bibliography
H. Duffy, The ‘War on Terror’ and the Framework of International Law (2015).
icrc, International Humanitarian Law and the Challenges of Contemporary Armed
Conflicts (2011).
E. Rosand, ‘The UN-led Multilateral Response to Jihadist Terrorism: Is a Global Coun-
terterrorism Body Needed?’, 11(3) Journal of Conflict & Security Law (2007).
688 Torture
M. Sassòli, L. Rouillard, ‘La Définition du Terrorisme et le Droit International Humani-

taire’, 20 Revue Québécoise de Droit International (2007).
B. Saul, ‘Terrorism and International Humanitarian Law’, in B. Saul (ed.), Research
Handbook on International Law and Terrorism (2014).
Torture. The prohibition against torture is a ius cogens norm of internation-

al law, contained in all four 1949 GCs and the two 1977 APs. The prohibition
against torture is found in Common Article 3 GCs, as well as in numerous spe-
cific provisions [art. 12 gci; art. 12 gcii; arts. 17, 87 gciii; art. 32 gciv; art. 75(2)
api; art. 4(2) apii; see: Grave Breaches]. Its status as a ius cogens norm has
been recognised by the icj, regional human rights courts, national courts, and
international criminal tribunals [Judgment, Questions Relating to the Obliga-
tion to Prosecute or Extradite (Belgium v. Senegal), icj, para. 99; Judgment,
Othman (Abu Qatada) v. United Kingdom, ECtHR, Fourth Section, para. 266;
Judgment, Furundžija, icty, Trial Chamber, paras. 144–157; Opinions of the
Lords of Appeal for Judgment, A and Others v. Secretary of State for the Home
Department, House of Lords, para. 33; Judgment, KAING Guek Eav (Duch),
eccc, Trial Chamber, paras. 352–353; Judgment, Cabrera García and Montiel
Flores v. Mexico, IACtHR, para. 165 (finding the rule of excluding all evidence
obtained under torture to be absolute and irrevocable)].
Torture is not defined in the GCs, but instead in the icc Elements of Crimes
and the 1984 UN Convention against Torture (uncat). The icc Elements of
Crimes define the requirements of torture as follows: a) the perpetrator in-
flicted severe physical or mental pain or suffering upon one or more persons;
b) the perpetrator inflicted the pain or suffering for obtaining information or a
confession, punishment, intimidation or coercion or for any reason based on
discrimination of any kind; c) such person or persons were protected under
one or more of the GCs [art. 8(2)(a)(ii)-1, 8(2)(c)(i)-4 icc Elements of Crimes].
The uncat definition clarifies that torture “does not include pain or suf-
fering arising only from, inherent in or incidental to lawful sanctions” [art. 1
uncat]. Unlike the icc Elements of Crimes definition, Article 1 uncat fur-
ther includes a requirement that “such pain or suffering is inflicted by, or at
the instigation of, or with the consent or acquiescence of a public official or
other person acting in an official capacity”. The icty Appeals Chamber has ex-
plained the reason for such difference: “[t]he definition of the crime of torture,
as set out in the Torture Convention, may be considered to reflect customary
international law. The Torture Convention was addressed to States and sought
to regulate their conduct, and it is only for that purpose and to that extent that
Torture 689
the Torture Convention deals with the acts of individuals acting in an official
capacity” [Judgment, Kunarac et al., icty, Appeals Chamber, para. 146]. The
ihl definition of torture takes into account the need to limit unnecessary
suffering in the context of war whether by State or non-State actors. There-
fore, the definition of torture under ihl does not include the public official
requirement.
There are two theoretical bases for the distinction between torture and in-
human treatment [see: Inhuman Treatment]. Some sources specify that the
distinction depends on whether the infliction of pain or suffering is done for a
specific purpose. The icc Elements of Crimes define the war crimes of torture
and inhuman treatment as the infliction of “severe physical or mental pain or
suffering”. The definition of the war crime of torture contained in the icc Ele-
ments of Crimes is consistent with the uncat in requiring that the severe pain
or suffering be imposed for a specific purpose, such as obtaining information
[art. 8(2)(a)(ii)-1 icc Elements of Crimes]. However, the crime against human-
ity of torture in the icc Element of Crimes does not contain such a purposive
requirement [art. 7(1)(f), fn. 14 icc Elements of Crimes]. Likewise, the war
crime of inhuman treatment does not require that severe pain or suffering be
imposed for a specific purpose [art. 8(2)(a)(ii)-2 icc Elements of Crimes; Judg-
ment, İlhan v. Turkey, ECtHR, Grand Chamber, para. 85].
There is also support for the view that torture and inhuman treatment are
distinguished by their relative gravity. The ECtHR has noted that there is a
difference in the intensity of the suffering inflicted with torture at the highest
end of the spectrum, followed by inhuman treatment, and finally degrading
treatment [Judgment, Ireland v. United Kingdom, ECtHR, para. 167; Judgment,
Gäfgen v. Germany, ECtHR, Grand Chamber, paras. 88–90; see also: 2016 icrc
Commentary gci, paras. 1410–1411, 2962–2969]. Factors which courts have
considered relevant in determining whether an act is of sufficient gravity to
constitute torture, as opposed to inhuman treatment, include: the nature and
context of the infliction of pain; the premeditation and institutionalization
of the ill-treatment, whether the mistreatment occurred over a prolonged pe-
riod; the manner and method used; the physical condition of the victim; the
physical or mental effect of the treatment on the victim; the victim’s state of
health; the position of inferiority of the victim; the victim’s age, sex, and so-
cial, cultural and religious background [2016 icrc Commentary gci, paras.
2964–2965].
Cambodia
690 Trade
Bibliography
H. Burgers et al., The United Nations Convention against Torture – A Handbook on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1988).
J.M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i
(2005), pp. 315–319.
Toxin Weapons; see: Biological Weapons Convention (1972)
Trade. Trade and livelihoods can be adversely impacted by the actions (or
inactions) of an occupying power. Yet, trade is not specifically regulated under
occupation law [see: Occupation]. Of most relevance are provisions dealing
with work and property rights [see: Workers; Property, Private]. An important
principle is that the economy of an occupied territory can only be required
to bear expenses of the occupation no greater than that economy can be ex-
pected to bear [Judgment, Trial of the Major War Criminals, imt, Vol. i, p. 239].
This is reflected in Article 52 of the 1907 Hague Regulations, which provides
that requisitions in kind and services may only be demanded from inhabitants
for the needs of the army of occupation and must “be in proportion to the
resources of the country” [see: Requisitions].
Regarding the requisitioning of services, Article 51 gciv stipulates that
protected persons may only be compelled to carry out work necessary for the
needs of the army, for public utility services or for feeding, sheltering, cloth-
ing, transportation or health of the population of the occupied territory. Under
no circumstances may an occupying power compel services to serve its own
national economy, or to support military operations. Workers must also be paid
“a fair wage” and pre-occupation legislation addressing work and safety condi-
tions shall apply. Importantly, Article 52(2) gciv prohibits measures aimed at
creating unemployment or restricting the opportunities offered to workers in
occupied territory to induce them to work for the occupying power. This refers
to certain practices during World War ii, including the establishment of em-
ployment monopolies, closing down of industries, and creation of shortages of
raw materials necessary for production [1958 icrc Commentary gciv, p. 300].
With respect to property rights, occupation law imposes an absolute ban
on pillage and prohibits destruction of property in occupied territories un-
less it is “rendered absolutely necessary by military operations” [art. 53 gciv;
see Pillage; Property, Destruction and Appropriation/Seizure of]. The icj
determined that Uganda had not taken the necessary measures to prevent
exploitation of certain natural resources in the drc. As the occupying power,
Trade 691
Uganda should have acted to stop the illegal trade carried out not only by
members of its armed forces, but also by private persons in the region [Judg-
ment, Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), icj, para. 248].
Compared to public property, under occupation law there are stricter limita-
tions on interference with private property rights. The core obligation is that
private property must be respected and cannot be confiscated [art. 46 1907
Hague Regulations]. As stated in the Krupp Trial, this does not merely require
protection from loss of ownership; the provision is violated if the owner is actu-
ally prevented from exercising his or her rights in relation to the property [Judg-
ment, Krupp et al. (Krupp Case), US Military Tribunal (Nuremberg), p. 1345].
This protection applies even if the property is operated by virtue of a conces-
sion granted by the occupied State to a private person or company [Judgment,
Lighthouses Arbitration between France and Greece, pca, pp. 200–202]. It
also extends to intangible property, “such as is involved in the acquisition of
stock ownership” [Judgment, Krauch et al. (Farben Case), US Military Tribunal
(Nuremberg), p. 1134]. Private property may, however, be taken (“requisi-
tioned”) if certain conditions are met [art. 52 1907 Hague Regulations; see: Req-
uisitions]. In addition, some privately owned property, such as munitions and
military equipment, may be seized temporarily, but must be restored and com-
pensated for once peace has been reached [art. 53(2) 1907 Hague Regulations].
These protections are complemented by provisions under ihrl protecting
the right to work, form trade unions, and own property [arts. 6, 8 icescr; art.
17 udhr]. For example, the icj in the Wall case determined that the right to
work had been violated by Israel as restrictions on movement had a negative
impact on the ability of the Palestinian population to earn their livelihoods
[Advisory Opinion, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, icj, paras. 130–137].
With respect to international trade commitments entered into by the dis-
placed sovereign prior to occupation, the occupying power should consider
itself bound by them to the extent that public order and civil life depend on
compliance with such commitments [E. Benvenisti, The International Law
of Occupation (2012), p. 83]. For example, during the occupation of Iraq, the
occupation authorities justified redrafting the Iraqi labour code by reference
to Iraq’s commitments under the ilo Conventions 138 and 182 to eliminate
child labour. With respect to the dealings by other States with the occupying
power, difficulties might arise if the occupying power denies the occupation
regime and attempts to annex the territory in violation of international law
[see: Annexation]. In such event, States should confine their reactions to the
unlawful situation to their direct relations with the occupying power, while
692 Transfer by the Occupying Power of its Own Population
continuing to maintain existing treaty-based relations that benefit the location

population. This would include bilateral and regional free trade agreements
[Benvenisti, p. 85]. In the Namibia Advisory Opinion, the icj emphasized
that “[i]n general, the non-recognition of South Africa’s administration of the
Territory should not result in depriving the people of Namibia of any advan-
tages derived from international co-operation” [Advisory Opinion, Legal Con-
sequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
icj, paras. 122, 125]. In this context, it is worth reflecting on the potentially
detrimental effects of economic blockades on the livelihoods of persons in
occupied territories.
ated with
Bibliography
E. Benvenisti, The International Law of Occupation (2012).
G. Von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and
Practice of Belligerent Occupation (1957).
Transfer by the Occupying Power of its Own Population. The Hague Regula-
tions of 1907 do not expressly prohibit the transfer by the occupying power of
its own population, although it could be argued that the application of both
Articles 43 and 47 makes it practically impossible for an occupying power to
introduce settlers in the occupied territory. These provisions in fact allowed
for charges to be brought before the Nuremberg Tribunal against individuals
for introducing settlers in occupied territories [Indictment, Count 3J, German-
ization of Occupied Territories, imt].
It was against the background of the establishment of settlers during the
World War ii that Article 49(6) gciv, which specifically prohibits any de-
portation or transfer by the occupying power of its own civilian population,
was adopted [1958 icrc Commentary gciv, p. 283]. It should be noted that
such transfer is only one of the types of transfer proscribed by Article 49(1)
gciv [see: Deportation or Transfer of Civilians], although the Commentary
explains that, given the difference in wording, it might have been better to
have “a separate provision distinct from Article 49” [1958 icrc Commentary
to gciv, p. 283].
The prohibition of transfer by the occupying power of its own population
is also enshrined in customary law [rule 130 icrc Customary ihl Study] and
Transfer by the Occupying Power of its Own Population 693
features in a number of resolutions of the unsc [see e.g. Resolution 446 (1979),
Resolution 452 (1979), and Resolution 465 (1980)] and the unga [see e.g. Reso-
lution 68/15 (2013)].
The reason for such a ban in ihl is that altering the demographic composi-
tion of the occupied territory violates the premise of the law of occupation,
which is the maintenance of the status quo of the occupied territory, on the
basis that the situation of occupation is temporary [see: Occupation]. In this
regard, Article 49(6) gciv also aims at protecting the civilians in the occupied
territory [J.-M. Henckaerts, Mass Expulsion in Modern International Law and
Practice (1995), p. 149]. Further, changing the demographic composition could
be viewed as a first step towards annexation [see: Annexation], which is un-
lawful under the UN Charter and constitutes a violation of the right of self-
determination [Advisory Opinion, Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, icj, para. 122].
Article 49(6) gciv expressly covers both deportations and transfers, irre-
spective of the motive for such displacement [UN Sub-Commission on the
Promotion and Protection of Human Rights, The Human Rights Dimensions
of Population Transfer, including the Implantation of Settlers: Progress Report
Prepared by UN Special Rapporteur, E/CN.4/Sub.2/1994/18, para. 73]. In prac-
tice, deportation is unlikely to occur, for it would not attain the aim pursued by
an occupying power. Indeed, the concept of transfer appears to imply that the
State authorities must be involved in the act.
Measures adopted by the State range from organising the transport of ci-
vilians to softer approaches such as encouraging settlements in occupied ter-
ritories [Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, para. 120]. The question is whether voluntary movement
into the occupied territory breaches Article 49(6) gciv. Undoubtedly, an in-
terpretation in accordance with the aim and objective of this provision would
prohibit such displacement [Henckaerts, p. 149; R. Murphy, ‘Forgotten Rights:
Consequences of the Israeli Occupation of the Golan Heights’, in D. Keane, Y.
McDermott (eds.), The Challenge of Human Rights: Past, Present and Future
(2012), p. 159] as it would alter the demographic composition of the occupied
territory. However, there is no duty upon the occupying power to prevent na-
tionals from seeking establishment in the occupied territories. Yet, a favour-
able environment created by the State would fail to comply with Article 49(6)
gciv as such. This interpretation is supported by Article 8(2)(b)(viii) icc Stat-
ute that refers to direct and indirect transfer by the occupying power.
In contrast to Article 49(1) gciv, the prohibition of deportation and trans-
fer applies not only to “protected persons” but to all civilians [see: Protected
Persons; Civilians]. Furthermore, even though the Commentary refers to
694 Transitional Justice
“nationals of the occupying Power” [1958 icrc Commentary gciv, p. 283] for-
eigners should also be included, as any transfer of population would modify
the demographic composition of the occupied territory. It should also be noted
that, although the prohibition refers to the “civilian” population, it does not
cover State agents who are allowed to go into the occupied territories for the
purpose of administering it according to the Hague Regulations and the rel-
evant provisions of gciv.
There are no limitations, derogations, or exceptions to the rule that is
couched in strict terms. Indeed, whilst Article 49(2) gciv allows for deporta-
tions and transfers in cases in which “the security of the population or impera-
tive military reasons so demand”, this exception does not apply to Article 49(6)
gciv [Legal Consequences of the Construction of a Wall in the Occupied Pal-
estinian Territory, para. 135]. Likewise, the concept of military necessity cannot
be used as it only pertains to active combat activities [see: Military Necessity].
Whilst the grave breaches provision of gciv does not list the prohibition
of transfer by the occupying power of its own population, this is remedied by
Article 85(4)(a) api [see: Grave Breaches; War Crimes]. Even though api is less
widely ratified than gciv, it can be argued that Article 85 applies qua custom-
ary law [C. Tomuschat, ‘Prohibition of Settlements’ in A. Clapham, P. Gaeta,
M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015), p. 1555].
Moreover, Article 8(2)(b)(viii) icc Statute states that the transfer by the occu-
pying power of its own population into the territory it occupies is a war crime.
Bibliography
J. Quigley, ‘Living in Legal Limbo: Israel’s Settlers in Occupied Palestinian Territory’, 10
Pace Int’l L. Rev (1998).
Y. Ronen, ‘Status of Settlers Implanted by Illegal Territorial Regimes’, 79 British Year-
book of International Law (2008).
Transitional Justice. Transitional justice is the response to situations of wide-

spread or systematic violations of human rights in a given a State or territory, to
assist in a society’s transition, to the extent possible, into a new phase of peace
and stability. Historically, transitional justice can be said to have emerged dur-
ing the 1980s and 1990s in South America, and to a lesser extent in Central
and Eastern Europe and South Africa, as a society’s reaction or response to
post-authoritarian settings [UN Human Rights Council, Report of the Special
Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of
Non-Recurrence (2012), paras. 15–16]. More recently, transitional justice comes
Transitional Justice 695
into play in post-conflict situations, and at times in situations where conflict is

still on-going (see the situation in South Sudan and Central African Republic).
Transitional justice has been defined as the “full range of processes and
mechanisms associated with a society’s attempts to come to terms with a leg-
acy of large scale past abuses, in order to ensure accountability, serve justice
and achieve reconciliation” [unsc, The Rule of Law and Transitional Justice
in Conflict and Post-Conflict Societies: Report of the unsg (2004), p. 4]. These
processes and mechanisms may include both judicial and non-judicial mech-
anisms, prosecutions, reparations, truth seeking, institutional reform and
vetting, or a combination thereof [unsc, p. 4].
The normative foundation on which transitional justice moves forward
consists of the four pillars of international law: ihrl, ihl, international
criminal law and international refugee law [see: International Human Rights
Law; International Humanitarian Law; International Criminal Law; Refugee
Law]. Any mechanism or process adopted must respect these foundations and
aim at restoring the rule of law and democracy in post-authoritarian or post-
conflict societies.
The core elements of transitional justice are the following: criminal pros-
ecution initiatives, truth seeking, reparation programmes, and institutional
reforms.
Criminal prosecutions aim at ensuring that those responsible for violations
of ihrl or ihl are tried in accordance with international fair trial standards
[see: Fair Trial]. Depending on the ability or willingness of national authori-
ties, international assistance may be necessary to ensure that the investiga-
tions and trials are carried out in a transparent manner and in compliance
with international fair trial standards. In certain situations, this has led to the
establishment of hybrid tribunals composed of both national and internation-
al components [see: Hybrid or Internationalised Tribunals]. In other cases,
this has led to the establishment of ad hoc international tribunals, with the
mandate to try those most responsible for the crimes, alongside hybrid and
national prosecutions [see: International Criminal Tribunals].
Truth-seeking involves non-judicial or quasi-judicial processes that assist
societies in uncovering the truth about past human rights violations. The right
to the truth has been recognized by regional courts and international tribunals
[Judgement, Velásquez-Rodríguez v. Honduras, IACtHR; UN Human Rights
Council, Analytical Study on Human Rights and Transitional Justice (2009);
Commission on Human Rights, Independent Study on Best Practices, includ-
ing Recommendations, to Assist States in Strengthening their Domestic Ca-
pacity to Combat all Aspects of Impunity – by Diane Orentlicher (2004), para.
14] and more recently by the International Convention for the Protection of All
Persons from Enforced Disappearances [see: International Convention for the
696 Transitional Justice
Protection of All Persons from Enforced Disappearance (2006)]. Most com-

monly, such processes of truth-seeking take place through the work of truth
commissions, commissions of inquiry, or other fact-finding missions [see: Com-
missions of Inquiry and Fact-finding Missions; Truth Commissions]. Truth
commissions are non-judicial bodies that investigate past violence with the
view to mapping its patterns and establishing its causes. The mandate and
structures of truth commissions vary from case to case, depending on the spe-
cific societal context and should ideally be established following a national
consultation with the inclusion of victims and civil society organizations.
Commissions of inquiry and fact-finding missions are also generally estab-
lished with the view to uncovering the truth about past violence or human
rights violations, but tend to have more narrowly defined mandates than truth
commissions.
Reparation programmes include restitution, compensation, rehabilitation,
satisfaction and guarantees of non-recurrence [see: Reparations].
Institutional reforms entail, as the expression suggests, a reform of those in-
stitutions that were involved in or were responsible, to some degree, for the
commission and/or perpetuation of the human rights violations. Their aim
is to prevent the recurrence of future wrongdoings by building fair and effi-
cient public institutions and to restore trust amongst the constituency towards
these institutions. This process often includes vetting members of these insti-
tutions and removing them from their position or refraining from recruiting
those individuals who are found to be responsible for the past human rights
violations.
Transitional justice normally operates in the context of post-conflict situa-
tions, or, in some cases, attempts to operate in realities in which the conflict
is still on-going. Most, if not all practitioners and scholars agree that transi-
tional justice is not an exact science and that any transitional justice process
or mechanism must be tailored to the specific country situation in which it
is going to be implemented, and must include a victim-centred and gender-
sensitive approach. Elements that need to be taken into consideration include
the length of the period of the human rights violations, the nature of the con-
flict, the number, ethnicity and geographical distribution of the victims, the
identity of the perpetrators, the involvement of the government in the com-
mission of the violations, corruption within the institutions that by definitions
should protect all individuals (courts and police, to name just two), as well as
the fragility of existing institutions.
Cambodia
Translation 697
Bibliography
Commission on Human Rights, Independent Study on Best Practices, Including
Recommendations, to Assist States in Strengthening their Domestic Capacity to
Combat all Aspects of Impunity – by Diane Orentlicher (2004).
UN Human Rights Council, Report of the Special Rapporteur on the Promotion of
Truth, Justice, Reparations and Guarantees of Non-Recurrence – Pablo de Greiff
(2012).
UN Human Rights Council, Analytical Study on Human Rights and Transitional Justice
(2009).
UN Special Rapporteur, Questions of the Impunity of Perpetrators of Human Rights
Violations (Civil and Political) – Revised Final Report Prepared by Mr. Joinet Pursu-
ant to Sub-Commission decision 1996/199 (1997).
unsc, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies:
Report of the unsg (2004).
Translation. The translation of core ihl texts from one language into another
language is a basic and yet very essential measure of both dissemination [see:
Dissemination] and implementation [see: Implementation]. At the same
time, it is an indirect precondition for the enforcement of ihl. The GCs refer
to translation indirectly in that they presume a legal obligation as part of the
“execution of the convention” and explicitly declare the duty to communicate
“the official translations of the present Convention”, either through the Swiss
Federal Council and, during hostilities, through the protecting powers [art. 48
gci; art. 49 gcii; art. 128 gciii; art. 145 gciv; see: Protecting Powers]. api
contains a very similar provision in Article 84, whereas apii is silent on that
issue.
During times when (diplomatic) international relations were conducted
mainly in French, translating the text of an international treaty into a different
language did not play a major role. The more international law and ihl be-
came relevant for the observance and compliance by a multitude of actors in
and within a multitude of States, including actors beyond Ministries of Foreign
Affairs, the more translation of existing norms became relevant.
Translation of an existing norm is a basic requirement. Indeed, compliance
with a norm cannot be expected from actors who do not have the opportu-
nity to know the norm. By virtue of the nature of things, translation is a chal-
lenge in contexts where the State party to an international law treaty avails
itself of several different native, possibly official languages. Translation into
the official language(s) is one of the “necessary measures” that Article 80 api
and customary law require from States parties and parties to an international
698 Translation
armed conflict. Even if one or more official languages are recognized, transla-
tion in particular into additional (e.g. unusual, rare or tribal) languages might
be crucial in order to ensure access to the texts of internationally agreed norms,
especially with regard to situations of non-international armed conflict. For
example, Ghana avails itself of between 46 and 100 different languages. It has
more than 70 ethnic groups, each with its own distinct language. English being
the official language, nine to eleven languages have the status of Government-
sponsored languages. Ghana’s official translation of the GCs and the APs is
English. In a (hypothetical) conflict involving different ethnic groups with
distinct languages, it would prove pertinent for the text of the treaties to be
available in these languages, in order to increase the likelihood of the provi-
sions being known, understood, and observed.
International law treaties usually contain a determination of one or more
so-called authentic languages in one of the treaties’ final provisions. Very
often such authentic languages today are English and/or French, especially in
multilateral treaties, other prominent authentic languages being Arabic and/or
Russian. The GCs establish English and French as equally authentic texts and
commit the Swiss Federal Council to provide official translations, not addition-
al authentic texts, into Russian and Spanish [art. 55 gci; art. 54 gcii; art. 133
gciii; art. 150 gciv]. The text of api is authentic in Arabic, Chinese, English,
French, Russian, and Spanish [art. 102 api]. Rules of customary ihl may be
the object of translation in particular in contexts when they have been given a
written form as in the icrc Customary ihl Study published in 2005 and being
updated since that date.
Specific issues and questions may arise in situations where, for instance,
a treaty text builds on texts contained in previous additional treaties so that
potential insecurities and inaccuracies in previous drafting and/or previous
translations are and have to be carried forward to subsequent drafting and
translation. Possible inconsistencies, for example, in the codification of pro-
tection of the emblem of the red cross in gci and api would also have to be
dealt with in the text and translation of apiii [see: Emblem]. An additional
challenge constitutes the possibly differing translation of a term into differ-
ent national variations of the same language. An example is the translation
of the wording “render assistance to the regular medical service of the armed
forces” of Article 26(2) gci as “Mitwirkung” (assistance/cooperation) in the
official translation of the Federal Republic of Germany, on the one hand, and
“Unterstützung” (assistance/support) in the official translation of the Republic
of Austria, on the other hand. In order to avoid such frictions, States sharing
the same language at large often try to agree on consolidated translations.
Transnational Armed Conflict 699
Transnational Armed Conflict. The term transnational armed conflicts is not

a legal term of art. It is not used in the four GCs or their APs. It came to the fore
in discussions on how to classify an armed conflict that did not seem to fit the
usual paradigm of either an international armed conflict between two or more
States, or a non-international armed conflict between an organized non-State
armed group and a State (or between two or more organized non-State armed
groups) within the confines of the territory of a single State [see: International
Armed Conflict; Non-International Armed Conflict]. The term “transnation-
al armed conflicts” is thus used by some to describe armed conflicts occurring
between an organized non-State armed group and a State, which are not con-
fined to the territory of a single State [G.S. Corn, ‘Hamdan, Lebanon, and the
Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed
Conflict’, 40 Vand. J. Transnat’l L. (2007), pp. 295–355]. It was prominently used
in relation to Al Qaeda, a group that has been described as a “transnational
armed group” [M. Mohamedou, ‘Non-Linearity of Engagement: Transnational
Armed Groups, International Law, and the Conflict between Al Qaeda and the
United States’, hpcr Occasional Paper Series (2005); M. Sassòli, ‘Transnational
Armed Groups and International Humanitarian Law’, hpcr Occasional Paper
Series (2006)]. It has also been used to describe a conflict between the armed
group Hezbollah and the State of Israel, that is, an armed conflict between an
organized armed group operating in the territory of one State (Lebanon) but
fighting against a neighbouring State [Corn, pp. 295–356].
Common Article 2 GCs applies to declared war or armed conflicts between
High Contracting Parties [see: Common Article 2]. In other words, it applies
only to armed conflicts between States (“inter-nations”). It does not apply to
armed conflicts between a State and an entity that is not a State, such as an or-
ganized non-State armed group [2016 icrc Commentary gci, para. 220]. Com-
mon Article 3 GCs, on the other hand, applies to armed conflicts “not of an
international character occurring in the territory of one of the High Contract-
ing Parties”. The phrase “occurring in the territory of one” High Contracting
Party could be understood to imply that Common Article 3 only applies to a
non-international armed conflict confined to the territory of a single State.
And indeed, colloquially, non-international armed conflicts are sometimes
called internal armed conflicts. However, the text can equally be understood to
700 Transnational Armed Conflict
mean that Common Article 3 GCs only applies in the territory of States that
are parties to the Geneva Conventions, which, today, comprise all States in the
world [see: Common Article 3].
Some who advocate for a recognition of transnational armed conflicts as a
distinct type of armed conflict also argue that a different set of norms should
apply to such conflicts than would normally be applicable to international or to
internal non-international armed conflicts [G. Corn, E. Jensen, ‘Transnational
Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror
Combat Operations’, 42 Israel Law Review (2009), pp. 46–79]. Others, however,
argue that although the term accurately describes the factual situation of a
type of armed conflict, such conflicts fit within and can be governed by the
existing legal framework [C. Kress, ‘Some Reflections on the International Le-
gal Framework Governing Transnational Armed Conflicts’, 15 J. Conflict and
Security Law (2010), pp. 245–274].
Since it is a theory that grapples with extraterritorial non-international
armed conflicts, the notion of transnational armed conflicts is also related to
debate on the geographical scope of application of ihl to non-international
armed conflicts. The term itself (and debates surrounding it) are closely re-
lated to controversy on the applicability of ihl to measures taken with the aim
of suppressing the activity of groups with varying degrees of organization and
that are often also described as terrorist [see: Terrorist Organizations].
Understanding Common Article 3 GCs (as well as the customary ihl of
non-international armed conflicts) as applying to all armed conflicts between
a State and an organized armed group, where the usual criteria of organiza-
tion of the parties and intensity of the hostilities are met, is logical and ful-
fils the object and purpose of Common Article 3 GCs. By way of reminder,
Common Article 3 GCs has been called a “minimum yardstick”, binding in all
armed conflicts, and is viewed as reflecting “elementary considerations of hu-
manity” [Judgment, Case Concerning Military and Paramilitary Activities in
and Against Nicaragua (Nicaragua v. United States), icj, pp. 113–114].
Today, there are a number of different factual situations in which the armed
forces of a State might be fighting against an organised armed group in plac-
es other than on the State’s own territory, such as “spill-over” armed conflicts
[2016 icrc Commentary gci, paras. 422–444, 452–482]. While recognition of
the factual situation of transnational armed conflicts may be useful for un-
derstanding conflicts in the twenty-first century, the notion that a different –
undefined – legal regime applies to such conflicts runs the risk of introducing
confusion, thereby diminishing the protective capacity of ihl.
Truth Commissions 701
Bibliography
G.S. Corn, ‘Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recog-
nize a Hybrid Category of Armed Conflict’, 40 Vand. J. Transnat’l L. (2007).
G.S. Corn, E. Jensen, ‘Transnational Armed Conflict: A “Principled” Approach to the
Regulation of Counter-Terror Combat Operations’, 42 Israel Law Review (2009).
C. Kress, ‘Some Reflections on the International Legal Framework Governing Transna-
tional Armed Conflicts’, 15 Journal of Conflict & Security Law (2010).
M. Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’, hpcr
Occasional Paper Series (2006).
Truth Commissions. The past years have witnessed a steady increase in the
establishment and use of truth commissions in transitional and post-conflict
societies around the world [see: Transitional Justice]. Despite the increasing
recourse to such mechanisms, there is no commonly agreed upon definition of
the term truth commissions. While most of the difficulties in seeking a univer-
sally accepted definition arguably result from the wide array of features and
functions that distinguish each truth commission from another, on the one
hand, and from the current tendency of referring to all investigatory mecha-
nisms as truth commissions, on the other, a number of distinctive elements
can be identified.
First, truth commissions are independent bodies. Indeed, while truth com-
missions are usually established with an official mandate either by govern-
ments or former parties to armed conflict, with or without the involvement
of other international actors, one of their key features is their independence
and autonomy from the authority that establishes them. Second, truth com-
missions regularly operate only for a limited amount of time and are not
permanent. Third, truth commissions are non-judicial bodies that are estab-
lished with the purpose of investigating past human rights and ihl violations,
identifying patterns and causes of violence, collecting relevant information,
producing a report, and eventually providing recommendations for redress
and future prevention. Fourth, as opposed to other inquiry mechanisms whose
mandate is to determine specific facts or patterns of violence [see: Commis-
sions of Inquiry and Fact-finding Missions; Enquiry], the primary objective
of truth commissions is truth-seeking broadly speaking, namely to establish
the full and complete truth as to past events, including their specific circum-
stances and who participated in them.
Although a key component of any contemporary policy addressing past
legacies in transitional contexts, truth commissions also played a fundamen-
tal role from an international law perspective. To start with, the proliferation
702 Truth Commissions
of truth commissions has extensively contributed to fostering States’ obliga-

tions to respect the right to truth. This human right, which finds its origins
in ihl, particularly in regard to the right of families to know the fate of their
relatives, together with the obligation of parties to armed conflict to search
for missing persons [arts. 32–34 api; rule 117 icrc Customary ihl Study; see:
Missing Persons] is today explicitly recognized in a number of international
law instruments [e.g. art. 24(2) International Convention for the Protection of
All Persons from Enforced Disappearance; principles 2, 4 UN Updated Set of
Principles for the Protection and Promotion of Human Rights through Action
to Combat Impunity (2005)] and has now become object of extensive jurispru-
dence by human rights courts and bodies.
Moreover, the increasing tendency of truth commissions to provide detailed
recommendations in their reports, despite their non-binding nature, can ar-
guably be interpreted as the expression of the growing importance attached
by the international community to the need to provide recognition to victims
as rights holders, by addressing their truth-seeking claims while, at the same
time, reaffirming States’ corresponding obligations in terms of justice, repara-
tion, and guarantees of non-recurrence.
Given their potential, today truth commissions have become a common
response to the challenges posed by post-conflict situations and, as a result,
their mandates now frequently include investigation of serious violations of
ihl. Examples of truth commissions that have been established over the last
years are those in Peru, Guatemala, Sierra Leone, Liberia, and Timor-Leste.
Interestingly, some countries, such as Colombia and Burundi, have even imple-
mented similar mechanisms in the absence of a political transition and while
violence was still ongoing.
While the importance of such efforts is not to be diminished, truth com-
missions often face a number of significant challenges. These include, among
others, concerns related to witnesses protection, lack of sufficient attention
to the issue of missing and forcibly disappeared persons in situations of con-
flict, and, more generally, expansionist trends in the design of their mandates,
without any regard to their capacity. International experts have thus advocat-
ed in favour of adopting prioritization strategies, with a view to ensuring that
priorities such as the right to truth are adequately addressed while, at the same
time, other concerns such as security, lack of sufficient resources, and political
instability are duly taken into account in designing truth commissions’ man-
dates and their respective activities.
Valentina Cadelo – the views expressed are those of the author alone
and do not necessarily reflect the views of the International Commission of
Jurists
War Correspondents 703
Bibliography
P. Hayner, Unspeakable Truths. Transitional Justice and the Challenge of Truth Com-
missions (2011).
ohchr, Promotion and Protection of Human Rights – Study on the Right to the Truth,
UN doc E/CN.4/2006/91 (2006).
UN Human Rights Council, Report of the Special Rapporteur on the Promotion of
Truth, Justice, Reparation and Guarantees of Non-Recurrence on his Global Study
on Transitional Justice, A/HRC/36/50 (2017).
UN Protected Areas; see: Neutralized Zones
Unexploded Ordnances; see: Explosive Remnants of War
Universal Jurisdiction; see: Grave Breaches; Piracy; Penal Sanctions and

Legislation
Unlawful Combatants; see: Combatants; Terrorist Organizations
Unmanned Aerial Vehicles (uavs); see: Drones
Unprivileged Combatants; see: Combatants; Terrorist Organizations
Usufruct; see: Occupation; Requisitions
War Correspondents. War Correspondents are journalists [see: Journalists]

authorized or accredited by military authorities to follow the armed forces
during an international armed conflict. War correspondents are civilians and
benefit from the general protection afforded to them under the 1949 GCs and
1977 api [see: Civilians].
In light of their close proximity to the armed forces, however, war corre-
spondents are accorded the same legal status as members of the armed forces
upon capture and must be treated as prisoners of war pursuant to Article 4(A)
(4) gciii [see: Prisoners of War]. Thus, when compared to all other journal-
ists, if captured during hostilities, war correspondents are additionally enti-
tled to the fundamental rights foreseen in gciii [see: Deprivation of Liberty,
Treatment]. Their status as prisoners of war, however, is without prejudice to
their status as civilians [art. 79(2) api]. In addition to gciii, therefore, war cor-
respondents are also protected under Articles 13(4) gci and gcii. The special
status provided by Article 4(A)(4) gciii to war correspondents is applicable
704 War Crimes
only to international armed conflicts. As journalists, they also continue to ben-

efit from the general protections afforded to civilians under ihl in relation to
non-international armed conflicts, particularly Common Article 3 GCs [see:
Common Article 3] and Article 13 apii.
Similarly to Article 79(3) api, relative to journalists engaged in dangerous
professional missions in areas of armed conflict, the authorization received by
the military authorities under gciii is attested by identity cards issued to war
correspondents [art. 4(A)(4) gciii].
War correspondents are often referred to as embedded journalists. This
term, however, does not exist explicitly in the GCs. It refers to the more mod-
ern practice of journalists closely following the armed forces during an armed
conflict, including with the consent of the military authorities, but without
a formal authorization under Article 4(A)(4) gciii. While it remains unclear
whether embedded journalists are considered as war correspondents for the
purposes of the GCs, this article might also cover other categories of individu-
als called upon to follow the armed forces, thus supporting the view that all
journalists accompanying the armed forced could be considered war corre-
spondents [1960 icrc Commentary gciii, p. 64].
Cambodia
Bibliography
A. Balguy-Gallois, ‘The Protection of Journalists and News Media Personnel in Armed
Conflict’, 86(853) irrc (2004).
F. Foster, ‘The Price of News from the Front Line: Rethinking the Protection of Media
Personnel under International Humanitarian Law’, 20(3) Journal of Conflict &
Security Law (2015).
H.P. Gasser, ‘The Protection of Journalists Engaged in Dangerous Professional Missions’,
23(232) irrc (1983).
War Crimes. War crimes are serious violations of rules of ihl, which attract
individual criminal responsibility under international law [see: Individual
Criminal Responsibility].
There is no definitive list of which rules of ihl carry individual criminal re-
sponsibility. However, conduct amounting to grave breaches of the GCs must
be penalized and alleged perpetrator(s) must be searched for and prosecuted
[see: Grave Breaches]. Article 85(5) api confirms that grave breaches of the
GCs and of api “shall be regarded as war crimes”. Other serious violations of
the laws and customs of war are also war crimes [see: Serious Violations of
War Crimes 705
the Laws and Customs of War]. The determination of which violations of ihl
are serious and attract individual criminal responsibility under customary
international law is based upon international practice and opinio juris [see:
Customary International Law].
In order to qualify as a war crime, the conduct in question must be con-
nected to the international or non-international armed conflict, as the case
may be. This nexus is required by customary international law and is reflected
in the icc Elements of Crimes for the war crimes enshrined in Article 8 icc
Statute. The nexus requirement serves to distinguish between ordinary crimi-
nal conduct, which occurs on the territory of a State experiencing armed con-
flict, and acts that are perpetrated for reasons connected to the armed conflict.
To make this determination, the icty and ictr have been guided by the fol-
lowing factors: whether the perpetrator is a combatant; whether the victim
is a non-combatant; whether the victim is a member of the opposing party;
whether the act in question serves the purpose of the military campaign; or
whether the act is perpetrated as an official duty [e.g. Judgment, Kunarac et al.,
icty, Appeals Chamber, para. 58].
The nexus requirement provides an objective standard by which the armed
conflict is linked with the crime. This means that purely opportunistic crimes
that are unrelated to the armed conflict cannot qualify as war crimes. As put
by the icty Appeals Chamber, “[w]hat ultimately distinguishes a war crime
from a purely domestic offence is that a war crime is shaped by or dependent
upon the environment – the armed conflict – in which it is committed. It need
not have been planned or supported by some form of policy. The armed con-
flict need not have been causal to the commission of the crime, but the ex-
istence of an armed conflict must, at a minimum, have played a substantial
part in the perpetrator’s ability to commit it, his decision to commit it, the
manner in which it was committed or the purpose for which it was committed.
Hence, if it can be established […] that the perpetrator acted in furtherance
of or under the guise of the armed conflict, it would be sufficient to con-
clude that his acts were closely related to the armed conflict” [Kunarac et al.,
para. 5].
Bibliography
M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute
of the International Criminal Court: A Commentary, Vol. i (2002).
P. Gaeta, ‘War Crimes and Other International “Core” Crimes’, in A. Clapham, P. Gaeta
706 Warships
War on Terror; see: Anti-Terrorist Operations; Military Commissions; Terror-

ism (International Law); Terrorism (ihl); Combatants
Warships. The universally accepted definition of “warship” is now found in

Article 29 of the 1982 UN Convention on the Law of the Sea (unclos): “[f]
or the purposes of this Convention, ‘warship’ means a ship belonging to the
armed forces of a State bearing the external marks distinguishing such ships
of its nationality, under the command of an officer duly commissioned by the
government of the State and whose name appears in the appropriate service
list or its equivalent, and manned by a crew which is under regular armed forces
discipline”. The key relevance of the concept of warship for ihl is that warships
may exercise belligerent rights. Correspondingly, warships are by definition the
main category of combatant in the law of naval warfare [see: Naval Warfare].
The definition of warship applies across all parties, regardless of whether
they are belligerents or neutrals, and ihl deals with neutral warships as the
specific recipient of certain rights and obligations vis-à-vis the belligerents.
One example is the exemption from belligerent visit and search of merchant
vessels under convoy of accompanying neutral warships [see e.g. art. 120 San
Remo Manual; see: Merchant Vessels].
Under ihl, the main elements of this definition were first enumerated in
Articles 2–5 of the 1907 Hague Convention vii, and then codified under gen-
eral international law in Article 8(2) of the 1958 Geneva High Seas Convention.
The same elements are also reflected in the definition of warship provided by
the San Remo Manual, a soft law – but very authoritative – instrument [art.
13(g) San Remo Manual].
There is no doubt that the expression warship includes submarines. Nor is
there any doubt that non-naval vessels – such as Coast Guard cutters – may
also be categorised as warships where they belong to the armed forces of a
State.
It is important to note, however, that because the definition of warship is
now settled and identical across both the peacetime and armed conflict legal
regimes applicable at sea, there are some aspects of the rights and duties of
warships that may be significant in one regime, but relatively insignificant in
the other. A key example is the concept of sovereign immunity of warships
[art. 32 unclos], which is fundamental to interaction with such vessels in
non-armed conflict contexts, but is relatively insignificant in terms of opera-
tions between the belligerents during armed conflict at sea.
In terms of the law of naval warfare, there are a number of challenges that
can arise in relation to the definition of warship. One such issue concerns the
Wilful Killing and Murder 707
status under ihl of State vessels on non-commercial service, which do not

meet the definition of warship. For example, some naval support vessels, such
as logistics support ships, or troop transport ships, may not be definable as
warships, because they are not commanded by an officer of the armed forces
(for example, such a vessel may be commanded by a civilian merchant marine
master). However, these vessels are specifically recognised in the law of naval
warfare as “auxiliaries”. Auxiliaries are defined, for example, in Article 13(h) of
the San Remo Manual as “a vessel, other than a warship, that is owned or oper-
ated by or under the exclusive control of the armed forces of a State and used
for the time being on government non-commercial service”. Enemy auxiliaries
are military objectives and are thus targetable in the same manner as enemy
warships [arts. 65–66 San Remo Manual; see: Military Objectives].
A second issue relating to the definition of warship is the status of un-
manned vehicles and other unmanned systems at sea. By definition, such sys-
tems are not currently considered to be warships, not least because they are
not manned by a crew under armed forces discipline, as this concept is tra-
ditionally understood. This can entail consequences for the way the object is
treated in ihl, for example, as a warship or as a weapon. However, such vessels
and systems may be employed in belligerent operations, and are targetable,
because they are either auxiliary vessels, or can be simply considered to be
subordinate weapons systems deployed from a warship.
Bibliography
B.H. Oxman, ‘The Regime of Warships under the United Nations Convention on the
Law of the Sea’, 24(4) Va. J. Int’l L. (1984).
Wilful Killing and Murder. The basic protection against arbitrary depriva-
tion of life outside the conduct of hostilities has become a universal standard
during armed conflict and can be traced back to the original Geneva Conven-
tion of 1864 [N. Melzer, Targeted Killing in International Law (2009), p. 144].
In the aftermath of World War ii, the scope of this prohibition was expanded
further by the advent of the 1949 GCs.
In expressing this protection, all GCs, inter alia, prohibit the “wilful kill-
ing” of protected persons in the context of an international armed conflict
[art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv]. The notion of wilful kill-
ing stemming from these prohibitions, concerns “death occurring due to any
708 Wilful Killing and Murder
wilful act or omission that is accompanied by an intent to cause the death of

protected persons, including reprisals” [1958 icrc Commentary gciv, p. 597;
see: Reprisals against Civilians]. This act in turn gives rise to a grave breach
of the GCs and api and the mandatory universal jurisdiction among contract-
ing States [see: Grave Breaches]. Moreover, the elements of this crime and its
practical application have been the subject of much development over the
past twenty some years, through its incorporation as a war crime in the icty
and subsequently the icc Statute.
In the context of the icty, the substantive elements of the crime have been
defined within the parameters of the grave breach provisions of the GCs, as
necessitating proof that the death of the victim – a protected person [see: Pro-
tected Persons] – occurred as a result of the action or omission of the accused
[Judgment, Brđanin, icty, Trial Chamber, para. 385]. Moreover, such conduct
need only be a substantial cause of the death of a protected person [Judg-
ment, Delalić et al., icty, Trial Chamber, para. 424; Judgment, Blaškić, icty,
Trial Chamber, para. 153; Judgment, Kordić and Čerkez, icty, Trial Chamber
(2001), para. 229]. The death of the victim may further be inferred from the
circumstantial evidence at hand, subject to the caveat that the only reason-
able inference is that the death occurred as a result of the accused’s conduct
[Brđanin, para. 385]. Turning to the mens rea element, this has been found to
necessitate the intention “to kill, or to inflict serious bodily injury in reckless
disregard of human life” [Kordić and Čerkez (2001), para. 229] or otherwise put
an intention “to cause death or serious bodily injury which, as it is reasonable
to assume, he had to understand was likely to lead to death” [Blaškić, para. 153].
Moreover, premeditation need not be established [Brđanin, para. 386]. Rather,
the threshold of dolus eventualis has been found to suffice, thereby extending
to recklessness, but not that of negligence or gross negligence [Brđanin, para.
386; see also: K. Dörmann, Elements of War Crimes under the Rome Statute
of the International Criminal Court, Sources and Commentary (2003), p. 43].
Furthermore, in establishing mens rea, an inference can equally be made from
the circumstantial evidence in question [Brđanin, para. 387; Delalić et al.,
para. 437].
In its analysis of wilful killing, the icty has further concluded that the
underlying elements are, mutatis mutandis, identical to those of murder in
non-international armed conflict [Kordić and Čerkez (2001), paras. 223, 236;
common art. 3 GCs], save for certain additional requirements, inter alia, that
wilful killing is specific to protected persons in the context of an international
armed conflict [Kordić and Čerkez (2001), paras. 233; Judgment, Kordić and
Čerkez, icty, Appeals Chamber (2004), para. 38]. In this vein, wilful killing thus
requires proof that the accused knew of the factual circumstances that made
Wilfully Causing Great Suffering or Serious Injury 709
the armed conflict an international one [Judgment, Naletilić and Martinović,

icty, Appeals Chamber, para. 121].
The icc Statute has adopted an analogous definition of the crime which oc-
curs “when it is committed by someone who, by action or omission, causes the
death of one or more [protected] persons” [Decision on the Confirmation of
Charges, Katanga and Ngudjolo Chui, icc, Pre-Trial Chamber i, para. 287]. In
this context, the term “killed” is interchangeable with the term “caused death”
to ensure that conduct, such as the reduction of rations for prisoners of war
resulting in starvation and inevitably death, fall within the ambit of this crime
[Dörmann, p. 39; see: Starvation]. Moreover, the drafters similarly intended
there to be no difference between the war crimes of wilful killing [art. 8(2)
(a)(i) icc Statute] on the one hand and murder [art. 8(2)(c)(i) icc Statute]
on the other. In the context of mens rea, in addition to the requirements of
Article 30 icc Statute, the perpetrator should further have been aware of the
circumstances establishing the protected status of the victim under ihl. In
this regard, the icc has found that this does not require the perpetrator to
have concluded “that the victim was in fact a protected person” [Katanga and
Ngudjolo Chui, para. 297].
In further developments of this crime, the rich jurisprudence of the ad hoc
tribunals will no doubt serve as a guiding source to the icc in its interpretation
of this crime. Thus far, it can be said that the icty has further consolidated the
approach, as adopted by the icc, to provide protection to civilians in armed
conflicts regardless of their nationality, in the absence of diplomatic protec-
tion. This falls in line with the raison d’être of ihl, i.e. to protect lives in armed
conflicts.
Camilla van der Walt, Ousman Njikam – the views expressed are those of
the authors alone and do not necessarily reflect the views of the United Nations
Mission in South Sudan , the United Nations International Residual Mechanism
for Criminal Tribunals, or the United Nations in general
Bibliography
Wilfully Causing Great Suffering or Serious Injury to Body or Health. Wilfully

causing great suffering or serious injury to body or health constitutes a grave
breach of the GCs [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv; see:
Grave Breaches]. This grave breach “is intended to cover acts which, without
amounting to ‘torture or inhuman treatment’, are liable to affect the physique
710 Wilfully Causing Great Suffering or Serious Injury
or health” of protected persons, such as “the mutilation of the wounded or

their exposure to useless and unnecessary suffering” [1952 icrc Commentary
gci, p. 372].
First, to be a grave breach, the act must be a wilful act or omission [Judg-
ment, Kordić and Čerkez, icty, Trial Chamber, para. 245]. To constitute a grave
breach, the suffering or injury caused cannot result from negligence, but must
have been done intentionally, that is when judged objectively the act was de-
liberate and not accidental [Judgment, Tolimir, icty, Trial Chamber, para. 716;
2016 icrc Commentary gci, paras. 3003–3004]. Recklessness, however, can
constitute wilfulness when the individual accepts the risk with full knowledge
of what he/she is doing [Judgment, Blaškić, icty, Trial Chamber, para. 152].
Second, to constitute a grave beach, the act or omission must cause great
suffering or serious injury to the body or health of a protected person. The icty
looked to these words’ ordinary meaning to assess whether an act quantita-
tively reached the required level of suffering or injury: “[t]he Oxford English
Dictionary defines this word [‘serious’] as ‘not slight or negligible’. Similarly,
the term ‘great’ is defined as ‘much above average in size, amount or intensity’”
[Judgment, Delalić et al., icty, Trial Chamber, para. 510].
Wilfully causing great suffering “refers to suffering inflicted as a punish-
ment, in revenge or for some other motive, perhaps out of pure cruelty, as apart
from suffering which is the result of torture or biological experiments” [1960
icrc Commentary gcii, p. 269]. As it was never specified that suffering only
encompassed physical suffering, “the provision can quite legitimately be held
to cover moral suffering also” [1960 icrc Commentary gcii, p. 269].
In contrast to suffering, injury to body or health has not systematically been
understood to include mental health. While the icty Appeals and Trial Cham-
bers, on several occasions, have found that health could include mental health
[e.g. Blaškić, para. 156], the icc Elements of Crimes refer to mental only in
relation to suffering, not injury, as the negotiating States considered it “difficult
to conceive of mental injury” [K. Dörmann, Elements of War Crimes under the
Rome Statute of the International Criminal Court (2003), p. 76].
Wilfully causing great suffering or serious injury to body or health is dis-
tinct from the grave breach of torture, primarily because the former does not
require that the alleged acts or omissions be committed for a prohibited pur-
pose [see: Torture]. Thus, the former includes acts that may also constitute
torture [Blaškić, para. 156]. Wilfully causing great suffering or serious injury
is also distinct from the grave breach of inhuman treatment in that inhu-
man treatment also includes violations upon human dignity [see: Inhuman
Treatment].
Examples of acts wilfully causing great suffering or serious injury to body
or health, are: repeatedly mistreating a detainee by “tying him to a roof beam
Wilfully Depriving a Protected Person of the Rights of Fair 711
and beating him, by striking him with a baseball bat, and by pouring gasoline
on this trousers, setting them on fire and burning his legs” [Delalić et al., para.
1016]; ordering “persecutions against the Muslim civilians of Bosnia” [Blaškić,
pp. 267–268]; and failing “to take the necessary and reasonable measures
which would have allowed these crimes to be prevented or the perpetrators
thereof to be punished” [Blaškić, p. 269].
Finally, to constitute a grave breach, the act or omission must be directed
against a person protected by one of the GCs during an international armed
conflict [see: Protected Persons].
Wilfully causing great suffering or serious injury to body or health was in-
cluded as a grave breach because it was identified as one of the most serious
acts that can be committed during international armed conflict. Customary
law now indicates that such acts, including violence to life or person (in par-
ticular mutilation, cruel treatment, and torture) and seriously endangering a
person’s health, also constitute serious violations of ihl in non-international
armed conflict [J.-M. Henckaerts, L. Doswald-Beck, Customary International
Humanitarian Law, Vol. i (2005), pp. 590, 593; art. 8(2)(c)(i)-(ii), 8(2)(e)(xi) icc
Statute].
Laura M. Olson – the views expressed are made in the author’s personal capac-
ity and do not necessarily represent the position or view of The Carter Center
Bibliography
Criminal Court (2003), pp. 76–80, 229–239, 394–405, 482–484.
Wilfully Depriving a Protected Person of the Rights of Fair and Regular Trial.
The offence of wilfully depriving a protected person of the rights of fair and
regular trial is expressly prohibited as a grave breach in gciii and gciv, as well
as in api [art. 130 gciii; art. 147 gciv; art. 85(4)(e) api; see: Grave Breaches].
These provisions apply during an international armed conflict and protect
both prisoners of war, based on gciii, and civilians, based on gciv [see: Pris-
oners of War; Civilians]. This offence is also recognised as a grave breach by
the icty [art. 2(f) icty Statute], the icc [art. 8(2)(a)(vi) icc Statute], and
the eccc [art. 6 eccc Law], as well as the Special Panels for Serious Crimes
in East Timor [Section 6(1)(a)(vi) untaet Regulation No. 2000/15], and the
Supreme Iraqi Criminal Tribunal [art. 13(a)(F) sict Statute]. It is, furthermore,
an offence under international customary law [Judgment, Duch, eccc, Trial
Chamber, paras. 403–405, 458–460].
The actus reus of this offence consists of depriving a prisoner of war or
a civilian of the rights of fair and regular trial through the denial of judicial
712 Wilfully Depriving a Protected Person of the Rights of Fair
guarantees, particularly those defined in gciii, gciv, and api [see: Fair Trial].
These judicial guarantees include the right to be judged by an independent,
impartial, and regularly constituted court [art. 84(2) gciii; art. 75(4) api; art.
6(2) apii]; the right to be promptly informed of the charges [art. 104(2) gciii;
art. 71(2) gciv; art. 75(4)(a) api; art. 6(2)(a) apii]; the rights and means to
conduct a defence, including the right to defend oneself or to be assisted by
a lawyer of one’s own choice, to have sufficient time and facilities to prepare
the defence and to communicate freely with counsel [arts. 84(2), 96(4), 105
gciii; arts. 72, 123 gciv; art. 75(4)(a) api; art. 6(2)(a) apii; see also: art. 49(4)
gci; art. 50(4) gcii]; the principle of individual criminal responsibility and
the protection against collective penalty [art. 87 gciii; art. 33 gciv; art. 75(4)
(b) api; art. 6(2)(b) apii]; the presumption of innocence [art. 75(4)(d) api; art.
6(2)(d) apii]; the principle of nullum crimen sine lege [art. 99(1) gciii; art. 67
gciv; art. 75(4)(c) api; art. 6(2)(c) apii]; the principle of non bis in idem [art.
86 gciii; art. 117(3) gciv; art. 75(4)(h) api]; the right to be informed of the
right to appeal [art. 106 gciii; art. 73 gciv; art. 75(4)(j) api; art. 6(3) apii]; and
the right not to be sentenced or executed without a previous judgement pro-
nounced by a regularly constituted court [common art. 3 GCs]. According to
the icty, the requisite mens rea for this offence includes both culpable intent
and recklessness [Judgment, Blaškić, icty, Trial Chamber, para. 152].
A similar offence may also be committed in an armed conflict not of an
international character. As noted above, Common Article 3(1)(d) GCs specifi-
cally prohibits the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court, af-
fording all the judicial guarantees recognized as indispensable by civilized
people [see: Regularly Constituted Courts]. It might be difficult, however,
to assess whether courts set up by certain armed groups could be considered
as regularly constituted within the meaning of Common Article 3 GCs [see:
Armed Groups]. This offence also falls within the jurisdiction of various in-
ternational criminal tribunals [art. 3 icty Statute; art. 8(2)(c)(iv) icc Statute;
art. 4(g) ictr Statute; art. 3(g) scsl Statute; art. 7(2)(g) of the Extraordinary
African Chambers Statute].
Cambodia
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i
(2005), pp. 352–371.
Women 713
S. Sivakumaran, ‘Courts of Armed Opposition Groups: Fair Trials or Summary Justice?’,

7(3) jicj (2009).
Women. ihl does not distinguish between individuals on the basis of sex.
Women, alike men, are afforded the same protection under the principles of
non-adverse distinction [art. 9 gci; art. 9 gcii; art. 14 gciii; art. 27 gciv; art. 75
api; common art. 3 GCs; arts. 2, 4 apii] and non-discrimination [rule 88 icrc
Customary ihl Study; General Recommendation No 30 of the Committee on
the Elimination of Discrimination against Women; art. 2 iccpr; art. 2 icescr;
art. 2 Convention on the Elimination of Discrimination against Women; see:
Non-Discrimination], which are applicable in both international and non-
international armed conflicts.
However, discrimination is possible, even compulsory, provided its impact
is favourable. Women are afforded special, additional protection under ihl,
because they are viewed as being at greater risk of suffering from a conflict.
In international and non-international armed conflicts, the specific needs of
women must be taken into account [rule 134 icrc Customary ihl Study].
Women are to be treated with all consideration/regard due to their sex [art.
12 gci; art. 12 gcii; art. 14 gciii] and be the object of special respect [art. 76
api], which in its original interpretation means that their weakness, honour
and modesty, and pregnancy and childbirth must be taken into account [1960
icrc Commentary gciii, p. 147]. Further, women are specifically protected
from attacks on their honour and dignity, which covers rape, enforced prosti-
tution, and any form of indecent assault [art. 27(2) gciv; art. 76 api]. Whilst a
general rule requiring the needs of women to be taken into account does not
expressly appear in legal instruments relating to non-international armed con-
flicts, various, specific aspects of such protection, e.g. respect for the person
and honour, prohibition of outrages upon dignity, refer to women [common
art. 3 GCs; art. 4 apii].
Some categories of women, i.e. pregnant women, maternity cases, moth-
ers of children under seven years of age, and nursing mothers, are marked
for preferential treatment in international armed conflicts (these categories
do not appear in non-international armed conflicts). Heightened protection
is provided in terms of personal safety and shelter (including evaluation and
transportation), health, food, water, household items, etc. For example, bel-
ligerents must allow free and unlimited passage of medical supplies, food and
clothing for expectant mothers, maternity cases, and nursing mothers [art.
23 gciv; art. 70 api]. ihl also provides for medical assistance to maternity
cases who are entitled to the same rights as those who are sick and wounded
[rule 134 icrc Customary ihl Study; art. 8 api]. Whilst in international armed
714 Women
conflicts belligerents are encouraged to avoid the pronouncement of the death

penalty of pregnant women and mothers with dependent infants and pre-
cluded from executing such women [art. 76 api], in non-international armed
conflicts belligerents are prohibited from imposing the death penalty on such
women [art. 6 apii].
ihl also offers specific protection to women as detainees [see: Intern-
ment; Deprivation of Liberty, Treatment]. Their physical (especially sexual)
integrity is to be protected and due consideration is to be paid to maternity
cases. In practice, this means that specific accommodation arrangements
(quarters and/or dormitories) must be made for women so that they are sepa-
rate from men [arts. 25, 29, 97 gciii; arts. 79, 85, 124 gciv; art. 5 apii; rule
119 icrc Customary ihl Study], unless they belong to the same family [art.
82 gciv; art. 5 apii]. Further, a number of provisions on sanitation, medical
care, food, work, etc. in the GCs and the APs must be read in light of the gen-
eral obligation to pay due regard to their sex. For example, the provision of
adequate sanitation facilities [art. 29 gciii] and the maintenance of hygiene
and health standards [art. 85 gciv] must be so set up as to cater for women’s
privacy, safety and needs, and sanitary conveniences must be separate from
those of men [art. 29 gciii; art. 85 gciv]. Likewise, the obligation to afford
free medical care and medicines means that belligerents must provide medi-
cal services specific to women’s health issues and needs [icrc, Addressing the
Needs of Women (2004), pp. 115, 131–132]. The quality, quantity, and variety of
daily food rations must be adjusted to the individual [1958 icrc Commentary
gciv, p. 193], which requires the sex of the person to be taken into account.
Expectant mothers and nursing mothers are to be given supplementary provi-
sions of food [art. 89 gciv]. The type and amount of work to be carried out
by prisoners of war also depends on a variety of factors, including sex, which
means that women’s physical strength and specificities must be considered
when assigning work to them [see: Prisoners of War]. Thus, pregnant wom-
en, maternity cases and women with young children should be exempted
from mandatory work [1960 icrc Commentary gciii, p. 206; Addressing the
Needs of Women, p. 148]. Whilst States are encouraged to conclude agree-
ments with a view to releasing, repatriating and returning civilian pregnant
women and mothers with infants and young children [art. 132 gciv], no such
provision exists for female prisoners of war, though such an interpretation
is possible if read in combination with the “regard due to their sex” clause
[see: Release; Repatriation].
It is claimed that ihl rules relating to women are archaic and essentialist
and reflect stereotypical ideas about women, thus perpetuating discrimina-
tion and violence against women [J. Gardam, M. Jarvis, ‘Women and Armed
Workers 715
Conflict: The International Response to the Beijing Platform for Action’, 32

Columbia hrlr (2000)]. However, a modern interpretation of ihl provisions
taking ihrl and international criminal law into consideration dispels such
criticism, for violence against women is now viewed as a violation of a wom-
an’s physical and mental integrity. Likewise, the criticism that the only ratio-
nale for protecting women is their nurturing and caring roles, thereby viewing
women in their reproductive function and portraying them as powerless and
in need, is countered by a modern interpretation of women’s role, especially in
light of the Women, Peace and Security agenda of the unsc [e.g. unsc Resolu-
tion 1325 (2000)]. The increasing use and application of other legal regimes in
armed conflict has obliged States to integrate this more nuanced approach into
their understanding of ihl rules relating to women. That being said, it is not
the objective of ihl to tackle the roots of discrimination, address social, eco-
nomic, and structural inequalities, alter cultural traditions and perceptions, or
empower women, but to ensure that certain standards of treatment towards
women are being respected. Last but not least, ihl uses the term “sex”, which
refers to biological characteristics rather than “gender”, which encompasses so-
cial, economic and cultural factors and features in modern legal instruments
[art. 7(3) icc Statute; see: Gender Violence].
Bibliography
A. Barrow, ‘UN Security Council Resolutions 1325 and 1820: Constructing Gender in
Armed Conflict and International Humanitarian Law’, 92 irrc 877 (2010).
J. Gardam, ‘The Neglected Aspect of Women and Armed Conflict: Progressive Develop-
ment of the Law’, 52 Netherlands International Law Review (2005).
J. Gardam and M. Jarvis, Women, Armed Conflict and International Law (2001).
Workers. The occupying power may compel inhabitants of an occupied ter-

ritory to perform labour, under certain conditions. These conditions were
initially laid out in Article 52 of the Hague Regulations of 1899 and 1907 before
being bolstered by gciv, which established a more comprehensive framework,
in response to the unprecedented scale of forced labour during World War ii.
The primary concern of Article 51 gciv is the prohibition of forced labour
for the military ends of the occupying power. Variously, it prohibits compel-
ling protected persons to serve in armed or auxiliary forces [see: Compelling
a Protected Person to Serve in the Forces of the Hostile Power]; pressurising
or propagandising with the goal of securing voluntary enlistment; compelling
716 Workers
protected persons to undertake any work which would oblige them to take part
in military operations; or mobilising workers in an organisation of a military or
semi-military character.
Article 51 gciv establishes, in addition, a series of conditions under which
the occupying power may compel civilians in occupied territory to perform
labour [see: Occupation]. Labourers must be over 18 years of age and the
work must be required either for the needs of the army of occupation, “or for
the public utility services, […] feeding, sheltering, clothing, transportation or
health of the population of the occupied country”. The remaining obligations
concern the nature and circumstances of the work to be undertaken.
In this regard, Article 51 gciv requires that: (i) labourers may not be re-
quired to employ force to ensure the security of the installations in which they
are performing compulsory work; (ii) work is conducted exclusively in the oc-
cupied territory; (iii) as far as possible, each labourer is kept in his usual place
of employment; (iv) labourers are paid fair wages; (v) work is proportionate
to the physical and intellectual capabilities of the labourers; and (vi) legisla-
tion in the occupied territory concerning working conditions and safeguards
(in particular, as regards wages, hours of work, and compensation for occupa-
tional hazards) remain in force.
Two Trial Chambers of the icty have held that violations of Article 51 gciv
may amount to a war crime, namely in the Naletilić and Martinović and Prlić et
al. cases. The Trial Chamber in Naletilić and Martinović also advanced the novel
proposition that it is not required to establish the existence of a state of occu-
pation for the application of Article 51 gciv, but that its protections apply from
the moment that civilians fall “into the hands of an opposing power, regard-
less of the stage of the hostilities” [Judgment, Naletilić and Martinović, icty,
Trial Chamber, paras. 222, 251]. This innovation seems to be obiter, however, as
the Trial Chamber ultimately declined to apply the gciv regime [Naletilić and
Martinović, para. 252]. The Trial Chamber in Prlić et al. reiterated this state-
ment, but it can again be considered obiter as the Chamber established that
the relevant crimes took place on occupied territory in any case [Jugement,
Prlić et al., ICTY, Chambre de Première Instance, Tome 1, para. 153, Tome 3,
paras. 578, 580, 583-584].
Finally, Article 52 gciv prohibits measures aimed at creating unemploy-
ment or restricting the opportunities offered to workers in occupied territory
in order to induce them to work for the occupying power. Given the macro-
economic complexity of the administration of an occupied territory of any
significant population, it is undoubtedly the case that only clearly deliber-
ate measures to this effect are contemplated by this Article. In that respect,
the icrc Commentary lists the establishment of employment monopolies, the
Wounded and Sick 717
shutting down of industries, and the creation of an artificial shortage of raw

materials as examples of such measures employed during World War ii [1958
icrc Commentary gciv, p. 300].
Bibliography
Y. Dinstein, The International Law of Belligerent Occupation (2009), pp. 178–179.
Wounded and Sick. The duty to protect and care for wounded and sick com-
batants without distinction is a long-standing rule of customary international
law, already recognized in the 1863 Lieber Code and codified in the 1864 Geneva
Convention [art. 79 1863 Lieber Code; art. 6 1864 Geneva Convention; rule 110
icrc Customary ihl Study]. More detailed provisions are now contained
in gci and gcii: whereas the first relates to the wounded and sick in armed
forces in the field, the second concerns the wounded, sick and shipwrecked
members of armed forces at sea [art. 13 gci; art. 13 gcii; see: Shipwrecked].
Additional provisions can also be found in the two APs of 1977.
The expression “wounded” and “sick” indicates a category of protected per-
sons in times of armed conflict [see: Protected Persons]. More specifically, the
terms refer to military or civilian persons who are in need of medical care and
refrain from any act of hostility [art. 8 api]. Pursuant to Article 10 api “[a]ll
the wounded, sick and shipwrecked, to whichever Party they belong, shall be
respected and protected”.
The principle of protection of the sick and wounded originated in the First
International Conference of the Red Cross that was held in Geneva in Octo-
ber 1863. It initially covered only members of the army, as provided for in the
1864 Geneva Convention. It was later extended to members of the navy by the
1899 Hague Convention (iii) [J.K. Kleffner, ‘Protection of the Wounded, Sick
and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humani-
tarian Law (2008), p. 326]. Then, in 1907, the protection was further extended
to civilian wounded and sick. api extends this protection to all wounded, sick,
and shipwrecked persons, whether they are civilians or members of the armed
forces [arts. 8–34 api].
According to the relevant provisions under ihl, persons wounded, sick,
and shipwrecked shall be respected and protected under all circumstances
[arts. 12(1), 35(1) gci; art. 12(1) gcii; common art. 3 GCs; 10(1) api; art. 7(1)
apii]. They shall be treated humanely and shall receive, to the fullest possi-
ble extent and with the least possible delay, the medical care and attention
718 Wounded and Sick
required by their condition [art. 12(2) gci; art. 12(2) gcii; art. 10(2) api; art.
7(2) apii]. Any attempts upon their lives or violence to their persons are pro-
hibited. There shall be no distinction between them on any other grounds [see:
Non-Discrimination]. Women shall be treated with all the particular consid-
eration due to their sex [art. 12(4) gci; art. 12(4) gcii; art. 10(2) api; art. 7(2)
apii; see: Women].
This protection lasts as long as the wound or disease keeps the person out
of combat [see: Hors de Combat] and in need of medical care. Until their re-
covery or their disembarkation, they will benefit from the provisions of gci,
gcii and/or gciii. A combatant who recovers while in the hands of an adverse
party becomes a prisoner of war, at which point he comes under the provisions
of gciii protecting such persons [see: Prisoners of War].
gci and gcii are dedicated also to the support services (personnel and
equipment) needed to come to the aid of the sick and wounded [see: Medical
Personnel; Medical Transports; Medical Equipment]. Provided that they re-
frain from any act of hostility, once wounded, sick or shipwrecked even former
combatants become protected persons. They may not be attacked and must
be respected and cared for, often by removing them from the combat zone for
impartial care. api extends this protection to wounded, sick and shipwrecked
civilians refraining from any acts of hostility.
At all times, and particularly after an engagement, parties to a conflict must
immediately take all possible measures to search for and collect the wounded
and sick, to protect them against pillage and ill-treatment and ensure their ad-
equate care, as well as to search for the dead and prevent their being despoiled
[art. 15(1) gci; art. 18(1) gcii; art. 16(2) gciv; see: Casualties, Search for; Dead
Persons].
The civilian population must respect the wounded and sick, even if they
belong to the adverse party, and shall commit no act of violence against them
[art. 18(2) gci; art. 17(1) api]. The same applies in naval warfare to neutral
merchant vessels, yachts or other craft which may be called upon, by the par-
ties to the conflict, to take on board and care for the wounded, sick and ship-
wrecked and also to collect the dead [art. 21(1) gcii; see: Naval Warfare; Dead
Persons].
The duty to protect and care for the wounded, sick (and shipwrecked) is
an “obligation of means”. Each party to the conflict must use its best efforts to
provide them with protection and care, including permitting the intervention
of humanitarian organizations. No distinction may be made except on medi-
cal grounds (if it is beneficial), in particular by treating persons requiring
urgent medical attention first, without this being discriminatory treatment
between those treated first and those treated afterwards (so-called prohibition
Wounded and Sick 719
of “adverse distinction”). This principle is also supported by the requirement

of respect for medical ethics included in the 1977 APs [art. 15(3) api; art. 9(2)
apii].
Bibliography
J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i
(2005), pp. 400–403.
Handbook of International Humanitarian Law (2008), pp. 325–337.

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The Companion to International Humanitarian Law

H.E. Judge Sir Christopher Greenwood

Editorial Advisory Board

Professor Georges Abi-Saab – H.E. Judge George H. Aldrich

The titles published in this series are listed at brill.com/ihul

Names: Djukić, Dražan, 1981- editor. | Pons, Niccolò, editor.

Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands.

This book is printed on acid-free paper and produced in a sustainable manner.

Foreword: ihl in a Time of Crisis – Back to the Basics? xix

1 Promoting the Teaching of ihl in Universities: Overview,

2 Comparing Experiences: Engaging States and Non-State Armed

3 Legislative Measures in International Humanitarian Law: A Jigsaw

4 The Future of the International Humanitarian Fact-Finding

5 The Role of United Nations Commissions of Inquiry in the

6 The Intricate Relationship between International Human Rights

7 International Humanitarian Law in the Jurisprudence of

1 Abandoned Explosive Ordnances 157

30 Attacks which Employ a Method or Means of Combat the Effects of

68 Continuous Combat Function 262

183 Laws of War 467

223 Neutralized Zones 521

263 Qualified Persons 591

342 War Correspondents 703

ihl in Perspective: Kriegsraison vs. Humanitarian Feelings?

The “trial” of Philocles has been followed throughout history by countless

Considerations of strategic relevance, in the broadest sense, at times inspire

of a wider system that is having a significant impact on ihl as applied by mili-

7 G. Acquaviva, ‘International Criminal Courts and Tribunals as Actors of General Deterrence?

broad a community as possible”9 to implement this exercise of human intel-

interests. However, a widening participatory process to establish and interpret

11 Bernard, supra note 8.

In 2013, we worked together in Pre-Trial Chamber ii of the icc. The proceed-

Dražan Djukić, Niccolò Pons

achpr African Charter on Human and Peoples’ Rights

icj International Court of Justice

Jeroen van den Boogaard

Iris van der Heijden

Brianne McGonigle Leyh

Marcos Pablo Moloeznik

Maria Giovanna Pietropaolo

Camilla van der Walt

Law is not just a method of reasoning, a technique used to justify or

© koninklijke brill nv, leiden, 2018 | doi:10.1163/9789004342019_002

La propagande en faveur des principes de la Convention de Genève ne

enseignement populaire; elle doit aussi pénétrer dans le monde des

2 The Obligation to Disseminate ihl in Programmes of

The teaching of ihl in universities is rooted in the general obligation of dis-

[t]he High Contracting Parties undertake, in time of peace as in time

[t]he High Contracting Parties undertake, in time of peace as in time

13 Articles 47, 48, 127, 144 common to the GCs.

is quite general as regards the way to implement the obligation to dissemi-

18 See also: 2016 icrc Commentary gci, para. 2770.

3 The Contribution of Universities to ihl Dissemination

As seen above, while insisting on the obligation to include dissemination of

3.1 Experimenting with New Pedagogical Approaches by

pedagogical approach. Moreover, military schools disseminate ihl rules to

3.2 Educating Current and Future Decision-Makers

31 R.P. DiMeglio, ‘Training Army Judge Advocates to Advise Commanders as Operational

3.3 Supporting Civil Society and Facilitating IHL-Related Dialogue

38 See: https://hhi.harvard.edu/education/workshops/hric (Harvard Humanitarian Initia-

3.4 Potentially Reaching Out to Large Audiences with Quality Knowledge

quality IHL-related knowledge accessible to a larger audience.49 Through all

4 Shaping the icrc’s Approach to Universities: The Situation in