The conduct of hostilities in international humanitarian law

International law on the conduct of hostilities regulates and limits the methods and means of
warfare used by parties to an armed conflict. It aims to strike a balance between legitimate
military action and the humanitarian objective of reducing human suffering, particularly
among civilians.

International law on the conduct of hostilities: overview

29-10-2010 Overview

International law on the conduct of hostilities regulates and limits the methods and means of
warfare used by parties to an armed conflict. It aims to strike a balance between legitimate
military action and the humanitarian objective of reducing human suffering, particularly
among civilians.

Limits on the way wars are waged have existed for centuries. It was often a matter of unwritten
understandings on how to behave, sometimes a reciprocal recognition of the reality of potential
retaliation if certain limits were overstepped. On occasions, common humanity limited the
impact of war.

Efforts by the international community to introduce effective legal limits on the conduct of war
began seriously in the 19th century. Through a series of treaties such as the Geneva
Conventions and their Additional Protocols, and the growth of customary law, there is now an
extensive body of law regulating the conduct of hostilities.

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

The central principle of distinction runs through all the law relating to the conduct of
hostilities. Indiscriminate military action is prohibited. All sides in a conflict must distinguish
between legitimate military targets on the one hand and civilians and civilian objects on the
other.

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Deliberately targeting civilians is a war crime. All sides must take measures to separate as far
as possible military targets from population centres. While it is accepted that civilian
casualties may be sustained in situations where military targets are attacked, both sides are
required to take whatever measures possible to minimize injury and death among civilians, and
damage to civilian objects. If an attack is expected to cause "collateral civilian damages" that
are excessive in relation to the concrete and direct military advantage anticipated, it must be
cancelled or suspended.

IHL forbids the terrorizing of civilian population and the destruction of their means of survival
by attacks on crops, water supplies, medical facilities, housing and non-military transport.
Hostage taking and the use of human shields are likewise prohibited.

The methods and means used in military action must be proportionate to the military objective.
Tactics or the excessive use of power or force that cause unnecessary death or destruction
among civilians is prohibited. So too are methods and means that cause unnecessary suffering
to enemy combatants.

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

Limits on the conduct of hostilities under IHL also cover cultural property and the
environment. Targeting cultural property or using it for military purposes is prohibited.
Military action must not unnecessarily destroy the natural environment or create environmental
problems for the future. Special references are also made to naval and air warfare and the role
of civil defence during armed conflict.

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

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 CONDUCT OF HOSTILITIES: GENERAL PRINCIPLES

The rules of international humanitarian law that regulate the means and method of warfare
The conduct of hostilities is a specific aspect of international humanitarian law (IHL) which
regulates the means and methods of warfare.
When warring parties engage in hostilities and military battles, an armed conflict is usually at
its most violent and brutal. The protections provided by IHL when it comes to the conduct of
hostilities are often seen to be rather weak, with a focus on restrictions instead of absolute
prohibitions.
In part, this is because states do not want to be restricted too much when they launch and
engage in military operations. Many rules are subjective in nature and based on a good faith
perception of the facts at the time of the attack.
For an attack to be lawful three core principles that regulate the means and methods of warfare
must be respected:

● There must be a lawful target of attack;

● The expected harm to civilians must not be disproportionate to the military advantage to be
gained;

● All feasible precautions must be taken to limit the harm caused. If any information comes to
light changing the assessment under the first two principles and that might suggest
unlawfulness, then the strike must be suspended.

The principle of distinction

The principle of distinction prohibits all direct attacks against civilians and civilian objects. It
also prohibits all means and methods where a distinction between civilian and military targets
is not possible.
If the principle of distinction is violated, there is no need to take into account the principle of
proportionality.

The principle of proportionality

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The principle of proportionality (Article 51(5) (b) API) states that a military target cannot be
attacked if the risk of civilians, or civilian property, being harmed as a result of the attack is
larger than the expected military advantage.
If the target attacked is a civilian object, proportionality does not have to be assessed since any
intentional direct attack against a civilian object is a violation of IHL and very probably a war
crime.

Precautionary measures

In addition to the rules on targeting and proportionality, conflicting parties are obliged to
respect the principle of precautions in attack and in defence.
This principle requires warring parties to undertake warnings, as well as chose means and
methods of attack that will cause the least amount of civilian harm.
In the case of military defence, parties must refrain from placing military objects in densely
populated areas.
When it comes to hospitals that may have been used for military purposes, an effective
warning must be given.