DCA Synthèse

SZCZYRBA MANON 2022/2023
Code du droit des conflits armés
4 grands blocs pour le cours :

• Qualification et classification des conflits armés
• Conduite des hostilités => règles s'appliquant dans la phase active
• Protection des personnes
• Mise en oeuvre
Totalité question pas nécessairement sur chose vue au cours ==> pas juste les slides. La matière +
large que ce qui sera vu effectivement au cours.
Lecture non obligatoire mais qui peuvent aider disponible dans une liste sur l'UV.
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Chapter I - General presentation and classification of conflicts
Video extract What are the Rules of War? | The Laws of War | ICRC
Since the beginning, human use violence as a way to settle disagreements.
Section I - General presentation of LOAC (law of armed conflict)

I) A set of legal rules
Even in war, there are rules. Often, see and hear only the violations BUT doesn't mean that
rules are not respected by other people è have to look beyond what we see and hear in the
media. International humanitarian law is a little bit like criminal law, only learn about cases
where the law is violated bc when the law is respected it doesn't make any headline.
We can use different word to refer to the concept of the law of armed conflict:
- Law of war
- Law of armed conflict
- International humanitarian law
- Jus in bello
II) A law wich is part of public international law.

The most fundamental principles of PIL applied in LOAC. International law governs mainly
relations between states in times of peace & of war.
IHl is a branch of international law, it has the same characteristics as international law in terms
of creation of norms and binding nature èThe basis characteristics of international law and
IHL is a voluntarist nature: a rule cannot be invoked against a State unless it is proven that the
State has agreed to be subjected to the rule = will of the State.
Back to sources of PIL:

- For international convention, things are simple: state ratify a convention èratification.
- For international customary law, the acceptance of the state will show who it is applied.
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Have to look to PIL to understand what the subjects of International Humanitarian law are,
sources, how they're interpreted and the means of implementations.
There is no international court that have international jurisdiction all over the world. Will of
the state primacy again. This is why most of the situations when PIL is violated or IHL you
don't really get a judgement by the international court of justice for example and even if we
do, there's no international police force that can impose the execution of the judgement. It will
depend on the will of the state.
Is there another international court? We have the international criminal court (ICC), which can
be competent to hold a judgment against the criminal responsibility è specificity of IHL is
that the most serious violation also constitutes war crime. Therefore, we can have a double
responsibility: general responsibility of the state & criminal responsibility of the soldier that
cause the torturing.
III) Law both simple & complicated
Simple: everything essentially bears down to in certain as much humanity as possible when
conducting war. LOAC are not about prohibiting war as such, they accepted war. The essence
is to say ok if we must have wars we’ll save as many lives as possible, … è application of good
sense and moral values (Martens clause – Preamble Hague Convention). We can understand by
this clause that all cases that are not explicitly regulated by the LOAC still remain under the
protection of basic principles of international law.
The most serious violations are always the violations of the most elementary rules
èfundamental moral values.
Complicated: composed of many sources and instruments that regulate different parts/ subjects.
As we can see, IHL is a branch of public international law. It's one of the most ancient branchè
development started in the mid of the 19th century.
- 1856: Paris Declaration Respecting Marime Law about the treatment of enemy and neutral
vessels
- 1863: Lieber Code è American Civil War
- 1864: Geneva Convention è Wounded on land
- 1868:St Petersburg Declaration è means and methods of warfare
- Then general convention and declaration like the Brussels declaration dealing with general
rule of war and prisoners of war (1874). Then the Hague convention of 1899 and 1907
dealing with a number of issues like general rules of war, the convention of prisoner of
war, rules of neutrality, …
- 1925: Geneva Gaz Protocol ècreated after the WW1 during which a lot of chemical
weapons were used.
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- 1949: 4 Geneva Conventions è after WW2.

o First GC that protect wounded and sick soldiers è update of the very first GC
o Second GC for the amelioration of the condition of wounded, sick and shipwrecked
members of armed force at sea.
o Third GC protect prisoner of war
o Fourth GC completely new protect civilians in armed conflict.
- 1972: Biological Weapons Convention è because of Vietnam.
- 1977: I and II additional protocol to the GC
o AP I: apply to international conflict
o AP II: apply to non-international conflict
§ Until that time, only have 1 article applying to non-international armed
conflict. Until then, did not talk about national war.
§ After WW2, managed to have 1 article that also inserted some obligations
for non-international conflict. Why? 1936 to 1939 The Spanish civil war.
At that time, understand that victims of wars can also arise in a context of
non-international war, and they also need protection. So, manage to have a
1st crack in the shield of sovereignty with armed conflict.
§ With the end of colonization more and more liberation movement that
ended up in 1977 with a convention that say that Wars between a state and
a national liberation movement should be classified as international even if
non international in fact.
§ Alongside that we manage to have finally a convention only with non-
international conflict è the second additional protocol
- After that only about weapons.
- Weren’t able after 1977 to produce any general international humanitarian convention.
Only specific conventions dealing with regulating use of specific weapons. Borderline of
IHL moving to disarmament. In order to feel that void, we have a significant production
of non-binding instruments è doctrinal codifications produced by group of expert.
o 1994: San Remo Manual to LOAC at sea.
o 2005: important study of customary rule of IHL proposed by the International
Comitee RC
o 2009: Harvard manual
o 2012 : Talinn manual è cyber warfare
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IV) Relations of LOAC with other branches of public international law

Important bc in armed conflict, IHL is not the only branch of PIL that applies èImportant to
know at least the basics of how these rules interact.
A) Relations of LOAC with jus ad bellum
Jus ad bellum & jus in bello are two sets of rules that apply simultaneously most of the time
BUT are independent of each other:
- Jus ad bellum: search to prohibit the use of force between states
- Jus in bello: set of international law rules that apply in time of war è its object and purpose
is to protect the victims of war
The general rule of jus ad bellum is that the use of force is prohibited– art. 2(4) UN Charter.
After 1945, war is prohibited, use of force in international relation is prohibited (jus contra-
bellum)è 3 exceptions: self-defense (art. 51 UN Charter), authorization to use force by the
UN security council & consent by the government of the State concerned.
One of the most important principles in PIL, is that it applies in exactly the same ways to all
the parties to the conflictè equality of belligerents1: all parties to the conflict have the same
rights and obligations irrespective of whether one has violated jus ad bellum and the other has
not.
Ex: Russia has violated the prohibition by attacking Ukraine. Ukraine doesn't because it's self-
defense. Russian prisoner of war that is taking captive by Ukraine and the Ukrainian prisoner
of war that is taking captive by Russia would benefit of the exact same protection.
The aggressors don't have less right neither more obligations than the aggressed.
On a more pragmatic perspective, there's hardly ever any conflict where a state announced that
have violated the prohibition. In every international armed conflict, every state say I’m the
aggressed he's the aggressors (ils se renvoient la balle) è that's why equality of belligerents
principle protects IHL from all this consideration.
It goes further than that if look at the preamble of the first additional protocol §4
ð expression of the just war idea

On the opposite direction, IHL (jus in bello) cannot be use as an excuse in order to justify a
war that does not respect the UN charter. This is what the §3 says.
ð Justify in the sense of provided legal bases.

Violations of the rules of IHL must be considered when evaluate whether forces respect the
conditions of UN charter: necessity & proportionality.
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The equality of belligerents principle is confirmed in the preamble of the First Additional protocol of 1977
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B) Relations of LOAC and human rights

Human rights continue to apply during an armed conflict and the problem is how do we apply
genuinely HIL and human rights?
- IHRL apply extraterritorially:

o International Human Rights Law (IHRL) applies extraterritorially: « Each State
party to the Present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the
present Covenant ... “– art. 2§1 International Convention on Civil and Political
Rights (ICCPR).
o “The Court consider that the ICCPR is applicable in respect of acts done by a state
in the exercise of its jurisdiction outside its own territory” – ICJ, Wall Advisory
Opinion, 2004, §111
- ECHR extraterritorial application:
o “The High Contracting Parties shall ensure to everyone within their jurisdiction
the rights and freedoms defined in Section 1 of this Convention” – art. 1
ð Initially, when these instruments develop, the idea was that they would regulate the
relations between a government and a population of the state. There's a step forward that
has been made in the application saying that it's not only applicable within the territory of
the state, but also to whoever comes under the jurisdiction of a state è apply over persons
and over territory.
If they apply, how do they interact with IHL?

- If both regime gives the same answer è no problem
- If regime say different things è in armed conflict, human right complete and strengthen
the protection given by IHL.
ð HRL must be interpreted by taking into consideration what IHL says2.
Why the simultaneous application is important? Invoke IHL to justify what may otherwise be
a violation of IHL.
Ex:
2
Art. 15 §2 ECHR.
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C) Relations of LOAC with international criminal law

Great breaches of humanitarian law also constitute war crimes.
In context of an armed conflict there’s not only war crimes but also crimes against humanity
or crime of genocide. The armed conflict may give you a general context for the commission
of other international crime.
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Chapter II - Classification of armed conflicts

Question? Which type of armed conflict do you know? International, non-international,
internationalized conflict, transnational, …è We can have many different scenarios and situations,
many different facts, many different names for these situations.
From a legal point of view, we only have the categories that we find in the conventions. The only
name/classification that matters is the one associated with legal consequences èInternational
Armed Conflict and Non-International Armed Conflict.
Important bc when a conflict is classified for ex as an international armed conflict, it opens the
conflict to the legal consequences of armed conflict, group of rules that will apply. Same for non-
international armed conflict.
While internationalized conflicts do not have specific rule that apply. Transnational neither.
Even if factually, they may exist classifying them as transnational say nothing about the legal rule
you want to apply è not relevant classification from a legal perspective.
ð 2 categories: International & Non-international èhave to fit every situation in to these 2 box.
What is important is that in order to do this classification :

- We have to look at the facts.
- Tere's no general body who has the binding mandates to classify context è
Everyone has the right to classify, classification of conflict is a subjective
procedure so may end up (usually end up) with different classification.
o If lucky, situation goes before the ICJ/ ICC the classification will be
made by a third impartial party.
o If not lucky, end up with just opposing classification.
- If it’s classified as an armed conflict, it permits to derogate from Human
Rights.
- Criminal responsibility for war crimes
- Differences in legality with respect to the application of certain weapons
Case study: classification of the situation in Ukraine

1 : International conflict between Russia & Ukraine
2 : Non-international bc Russia considers it's part of his country
What with pro-russian rebels fighting with ukraine ?
International or Non-international ? Lets thought of what it was
when the fight first started in 2014.
1: Non-International bc rebels within Ukraine
2: International bc Russia supports those rebels and then annexation
(we'll discuss that later). That support change the nature of the
conflict ? Not all kind of support change the nature of conflict. ICJ
with the Nicaragua judgement 1986 which discuss the idea of a state
giving instruction to the rebels, with this scenario we are before an
international conflict.
Annexation of crimea => is that a conflict ? Bc territory integrity of Ukraine was violated.
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Chapter III - Scope of application of armed conflicts.
Why is it important to identify whether we are in a situation of armed conflict?

- The application of LOAC may render lawful actions which would be
criminal if committed in peacetime (ex: prisoner of war, …)
- Possibility to derogate from human rights
- Differences in legality with respect to the application of certain weapons
- Criminal responsibility for war crimes.
Section I - Material scope of application
Why is it important to distinguish IAC and NIAC? Because the rules that applied are not the same.
Major difference is the status of combatants who becomes prisoner of war if they’re caught by the
enemy (IAC). The status of prisoner of war wasn't extended to NIAC, they’re civiliansè The right
that distinguish the combatant and the rebel (or civilian) is the right to participate in the hostilities,
èthe combatant cannot be prosecute for killing enemy because it constitute a lawful act of war,
while a rebel will commit a murder under national law bc he is still a civilian and has no
authorization of IHL to do so.
The 2nd important distinction is occupation è Need to be in an IAC to be under occupation.
Which rule apply?

- IAC: GC 1949, the Hague convention & AP I 1977
- NIAC: Common art. 3 GC 1949, AP II 1977 & art. 8 (2) (c) and (e) of the
ICC statute.
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I) International armed conflict (IAC)

Common Art. 2 Geneva Convention: "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"
IAC is a conflict :
- state vs state
o international organization vs State
o group of states vs state
- No level of intensity of hostilities required - art. 2 application of the convention /
commentary of 2016.
- The decisive element is the nature of the belligerent parties, their identity (state or
international organization) BUT not the territory in which the conflict takes place.
Art. 1§4 of the 1st additional protocol adds another category è state v. national liberation
movement, only applies to states that are parties to the protocol.
Classification is an objective operation which depend on the facts on the ground AND not on
what the parties say3. IL will apply even if both parties don’t recognize the state of war
3
Ex: If both states refuse to accept that they are in an IAC, they will consider that there’s one IF there is military
confrontation between their armed forces.
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II) Non international armed conflict (NIAC)

Arab spring revolutions: Tunisia, Egypt, Libya, Syria.
Common art.3 GC " in the case of armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound
to apply, as a minimum, the following provisions (…)"
2 elements necessary è criteria fleshed out by customary international law + Tadic case
ICTY:
- Organize and identifies the different parties
o Existence of a command structure and disciplinary rules and mechanisms within
the group
o Existence of headquarters
o Fact that the group controls a certain territory
o Ability of the group to gain access to weapons or other military equipment
o ….
ð not a check list, not everything must be checked, it's elements that the courts
take into account
- Certain level of intensities of hostilities

o Number, duration & intensity of individual confrontations
o Type of weapons
o Involvement of the UN Security Council (Prosecutor v. Ramush Haradinaj et al.
case ICTY)
o ….
ð not a check list, not everything must be checked, it's elements that the courts
take into account
If don't have those two elements, are in peacetime BUT have to look at the overall situation
(for example, a short duration may still amount to NIAC if the scale of violence and destruction
is particularly high).
⚠ Must make a distinction between NIAC and internal disturbances that occurs in peacetime
è"this protocol shall not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar nature, and not being
armed conflicts" – art. 8(2) ICC statute & art. 1 §2 AP II.
What applied in NIAC ?

- Common art. 3 GC
- Other LOAC conventions applicable: Art. 19 Hague Convention (1954), CCW
convention if 2001 protocol is ratified (1980), …
- Customary LOAC
- IHRL
- Domestic law
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What about AP II 1977?

It’s a specific convention which has its own definition which is of higher standards than the
art. 3 of the GC è require more conditions.
Art. 1 §1 AP II : “This Protocol, which develops and supplements Article 3 common to the
Geneva Conventions of 12 August 1949 without modifying its existing conditions of
application, shall apply to all armed conflicts which are not covered by Article 1 of the
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) and which take place in
the territory of a High Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol”
There are 3 additional conditions:

- Conflict between the states armed forces and the rebels
- The rebel group must control part of the territory of the state: ability to carry out
sustained and concerted military operations as well as an ability to implement the
protocol
- Conflict in the territory of a party to the convention.
Ex. Afghanistan & Belgium è A. & B. have ratified the protocol

(1) A. fight against Taliban that controls part of the territory è applies to A
(2) Belgian armed forces operate in Afghanistan on behalf of the Afghan government
è not for its own interest
- Textual interpretation: APII don't apply to Belgium è will be too easy for
A. bc will. Never violate APII by using invited armed forces instead of using
its own troops
- Object & purpose of the treaty: its armed forces should be interpreted as their
forces AND the invited forces especially when states invoke the invitation to
refuse the qualification of an IAC.
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III) Special cases

A) From NIAC to IAC : internationalized armed conflicts
There are 2 possible scenarios:
- Government v. Rebels then another state came to support the government è stay
NIAC bc no internationalization, what is important here is the nature of the
belligerent parties and in this case stay non international
- Government v. Rebels but then another state came to support rebels è may become
IAC depending on the level of support of the state:
o Direct intervention : Send forces directly
• 2 conflicts exist simultaneously (what state prefer bc if IAC, rebels have more
right & more protection)
§ NIAC between State A & the Rebels
§ IAC between State A & State B
• Becomes 1 IAC if close link, strategic impact/significance on the ability of the
rebels to conduct their operations (providing them with trainings, financing,
…) èSeem absurd to consider that there are 2 conflicts.
o Indirect intervention: Don't send force directly but support rebels through
intervening (finances, resources, …)
• Armed group under overall control4 of intervening state è IAC between State
A and Rebels/State B
• Armed group under effective control of intervening state è IAC + state
responsibility: actions of the group become actions of the State, become party
to the conflict so internationalization of the conflict
B) From IAC to NIAC: internalized armed conflicts

When there is an intervention of a foreign state on the side of the government to fight the non-
state group, the intervention is not sufficient to transform a NIAC into an IAC.
Intervention of a foreign state to support a rebel group that those forces take the capital or a
great part of the country, a government is established, and the fight continues with the former
government or other forces è Once a new government takes over and the intervention is at
the invitation of the new government, the conflict is transformed into a NIAC.
The crucial element is the consent given by a government to the presence of foreign troops in
its territory.
Great caution is needed in analyzing such situations due to high risk of abuse through the
installation of puppet governments. Indeed, there is a risk of undermining the law of
occupation by setting up a “puppet regime” and claiming consent from that regime. What is
4
Overall control: the state has a role in organizing, coordinating or planning the military actions of the armed group,
in addition to financing, training and equipping or providing operational support to that group – Tadic case, Appeals
Judgment 1999.
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required is that the so-called government is indeed the government of the state and has a
degree of independence from the foreign forces.
To assure that the new government that gives consent is indeed the government of the state,
one should look at the degree of effectiveness of its control over the territory of the state and
at whether it has achieved a general international recognition.
C) Transnational armed conflicts

Armed conflict between State A and an armed group operating from state B.
NIAC or IAC? Must rely on facts.
In the example, tendency to say that it's a NIAC bc Hezbollah isn't a state party è problem
with that conception is that even if enemy is Hezbollah, when attacking Hezbollah, attacking
the state as well (Lebanon) so cannot say enemy is only Hezbollah bc in the process Lebanon
and his civilians will also suffer.
What Lebanon have to say about this? If Lebanon accept & don't protest the military operation,
consent of the state and can say that the conflict is NIAC è legitimize the enemy BUT if
Lebanon protest, IAC è two coexisting conflict. The same acts are part of 2 conflicts.
D) Mixed conflicts
IAC and NIAC may be going on simultaneously in the same area at the same time.
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Section II - Personal scope

Entities than can be considered as part of an armed conflict:
- States
o International conventions if ratifies è ⚠ reservations
o Customary LOAC
- International organizations
o International practice
o UNSG Bulletin, Observance by United Nations Forces of International
Humanitarian Law 1999
o 1994 Convention on the protection of UN personnel and associated personnel art.
2§2
- National liberation movements
o AP I art. 1§4 & art. 96§3
o 1980 CCW Convention art. 1§1
- Armed groups
o Rules on NIAC - common art.3; AP II, ICC Statute - art. 8 ; Customary IHL
o Possibility to conclude agreements - common art. 3 & to engage unilaterally to
respect LOAC - Geneva call
The ICC has confirmed that the IHL also applied vertically between members that are part of
the same armed forces – Ntaganda case5 ICC.
Section III - Temporal scope

ICTY, Tadic decision 1995: « International humanitarian law applies from the initiation of such
armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace
is reached; or, in the case of internal conflicts, a peaceful settlement is achieved»
For IAC, art. 3AP I applied:
- (a) “From the beginning of any situation referred to in article 1 of this Protocol”
- (b) 3 different deadlines:
o General close of military operations: factual èend in a more or less permanent
way
o For occupation situations: end of occupation
o For detained persons: end of detention
For NIAC, more difficult bc no specific provisions. The guidance is from international case
law è Tadic case: need to wait for a peaceful settlement in order for a NIAC to end.
5
Ntaganda = the head of the rebel group recruiting child soldiers (forced to participate hostilities AND have undergone
sexual violence). Ntaganda was charged with war crimes including the war crime of rape and sexual violence. Ntaganda
agreed with everything except that rape and sexual violence cannot be consider as war crime bc they were committed
by their own superiors. For Ntaganda IHL is not supposed to protect them against their own crimes but well against the
crimes of our enemies, IHL doesn’t apply vertically. ICC confirmed the opposite.
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Section IV - Geographical scope

No specific provision. Everything is case law
ICTY, Tadic decision 1995: « International humanitarian law applies from the initiation of
such armed conflicts and extends beyond the cessation of hostilities until a general conclusion
of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.
Until that moment, international humanitarian law continues to apply in the whole territory
of the warring States or, in the case of internal conflicts, the whole territory under the control
of a party, whether or not actual combat takes place there. »
IAC: rules of IHL apply for the entire territory of the party to the conflicts.
NIAC :
- In principle, same: the whole territory under the control of a party.
- What if extend beyons the territory? The spill over of an NIAC on a neighboring
country is now accepted – ICTR (International Criminal Tribunal for Rwanda).
- In territory of third state (not neighboring): IHL does not apply6.
Note : pas parce que cela se passe sur territoire que cela sera d'office droit des conflits armés
è les meurtres communs, resteront des meurtres communs par ex. Pas forcément crime de
guerre. Il faut alors distinguer les crimes commis dans le contexte du conflit armé et qui y sont
liés ET la criminalité régulière è nexus (strong link) to armed conflict.
6
Si le droit suivait n'importe où, des conséquences graves peuvent en résulter. S'applique là où les opérations ont lieu
=> ex. Membres de l'armée IRA vu en rue, l'un veut prendre son portefeuille en poche, l'autre pense qu'il va prendre
une arme donc il lui tire dessus - affaire McCan. è Faire attention car le principe du spill over fait qu'on ne peut pas se
livrer inévitablement a ce que l'on appelle ajd des attentats ciblés.
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Chapter IV: Conduct of hostilities
Section I - Substantial rules of LOAC

Every IHL rule represent a fundamental balance between military necessity and principle of
humanity. Sometimes the compromise is visible: ex. Should not attack a civilian except if he
participates directly in hostilities (military necessity) & on the other side, attack possible as
long as they participate è no longer (principle of humanity).
Object of IHL is not prohibiting warfare as such but takes war as a fact and try to regulate it
to humanized it as much as possibleè This is why we have the § from the 1868 Saint-
Petersburg Declaration : "The process of civilization should have the effect of alleviating
as much as possible the calamities of war; the only legitimate objective which States should
endeavor to accomplish war is to weaken the military forces of the enemy" => weaken and not
destroy.
Definition of the two elements by the UK LOAC manual of 2004:

Military necessity:
« Military necessity permits a state engaged in an armed conflict to use only that degree
and kind of force, not otherwise prohibited by the law of armed conflict, that is required
in order to achieve the legitimate purpose of the conflict, namely the complete or partial
submission of the enemy at the earliest possible moment with the minimum expenditure of
life and resources. »
Two aspects :
- Permissive aspects: allows the use to force
- Forbidden aspects: use that is necessary to achieve the objective and not beyond.
Not otherwise prohibited by the LOAC: if prohibited by LOAC, it's prohibited => when
the states wanted to give military necessity, they said so.
Cannot be used to justify violations of IHL.
Humanity:
« Humanity forbids the infliction of suffering, injury, or destruction not actually necessary
for the accomplishment of legitimate military purposes. The principle of humanity is based
on the notion that once a military purpose has been achieved; the further infliction of
suffering is unnecessary. »
Again, flip point for necessity èThat's why we have the principle of immunity of civilians
and civilian objects from attack bc attacking them is not necessary to achieve military
objectives
(Same) Combatant can be attacked but if wounded/ captured (hors-de-combat) they’re no
longer a threat, no longer military reason to make him suffer.
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Distinction in the reciprocity of applicability of IHL & reciprocity in the application of IHL
Applicability:
Initially, in order for the Hague Convention to be applied, the idea of reciprocity was the
following: all the party to the conflict be part to the convention.
Starting from Geneva convention, the convention and protocol are applicable between the
states that have ratify it but there’s no need that ALL the parties ratified it (Ex: State A B
& C are in conflict, state A & B have ratified the convention. It is applicable between them)
– art. 2 Common to GC 1949 & AP I art. 96§2.
In these cases, customary IHL continues to apply.
Application: things are different.

No reciprocity at all è when adversary violate IHL doesn't mean you can also violate IHL.
Section II - Basic rules and principles
I) Conduct of hostilities
A) Who may be the object of attack?

Video extract from American sniper è shoot or not shoot?
There is a difference between what you are required to do according IHL and what you
can do for policy purposes.
Any civilians, even children, can be a military target if directly participate in hostilities.
If possible, to wound to prevent the act instead of killing, obliged to wound? Lot of
discussion about it, but no concrete decision. The answer will depend on whether you
are situated on the military side or on the humanity side.
If couldn't shoot children participating in hostilities, it would likely push to use child
soldiers.
They have to do an analysis at the time, according to the information they had. Even in
IHL, you can have different interpretation of the same rule which can be equally valuate.
The principle of proportionality and precaution must always be kept in mind when
talking about IHL. Today, this idea of humanitarian law, of humanity is something that
is in the military mind (e.g. pilots who decided at the last minute not to drop bombs on
targets because there were civilian establishments nearby). Whereas before, the principle
was "shoot first, ask question next". In the media, the general impression is that IHL is
violated all the time BUT this is because we only hear about the violations. Indeed, if
there are no victims, how can we know if it has been respected?
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1) Distinction between civilian and combatant

Principle of distinction between civilians and combatants - rule I of Customary IHL:
"The parties to the conflict must at all times distinguish between civilians and
combatants. Attacks may only be directed against combatants. Attacks may not be
directed against civilians."
Civilians Combatants
Don't participate => not a threat Participate in hostilities =>

threat
But who's a civilian & who's a combatant?

Civilians - rule 5 CIHL: someone who's not a combatant ènegative definition
Combatants - rule 3 &4 CIHL:
Rule 3: « All members of the armed forces of a party to the conflict are
combatants, except medical and religious personnel »
Rule 4: « The armed forces of a party to the conflict consist of all organized
armed forces, groups and units which are under a command responsible to that
party for the conduct of its subordinates"
If we go beyond customary rule and look in treaty law:

Civilian - Art. 50 AP I: any person who does not belong to one of the categories of
persons referred to in art. 4 A (1), (2), (3), and (6) of the 3rd convention & in art.
43 of this protocol. In case of doubt, presumption that the person is a civilian
ègives the sources to see who a combatant is.
Combatant - Art. 4 GC III + AP I art. 43:
GC III - Art. 4 A
(1): armed forces of a State
(2): militia, voluntaries, resistance movements etc if they respect some
conditions (4 conditions)
(3): armed forces of a government non recognized by the adversary
(6): levée en masse: civilian population who spontaneous fight the invaders.
AP I Art. 43: organized armed forces, groups and units under a command
responsible to a party to the conflict and subject to an internal disciplinary
system.
Note: a combatant do not become a civilian from a legal point of view because he's
hors de combat but can't be targeted bc have similar protections.
19
2) Exceptions to the protection of civilians

⚠2 important exceptions to the protection of civilians: They can suffer a direct attack if
they participate in hostilities (direct participation), and they can suffer the consequences
of an attack against a military objective as long as they don't suffer excessive collateral
damage (indirect attack)è principle of proportionality.
a. Direct participation
1. IAC & NIAC
(1) IAC
- Sources :
o art. 51§3 AP I: "civilians are protected against attack unless and for
such time as they take a direct part in hostilities"
o Rule 6 Customary IHL
- Direct participation conditions => ICRC worked with experts and in the end
gave us a guidance on what mean direct participation: 3 constitutive elements
o Threshold of harm: the act must be likely affecting the military
operations or capacity of the adversary or to inflict dealt, injury or
destruction to the adversary
o Direct causation: direct causal link between the act and the harm
likely to result from the act
o Belligerent nexus: more objective criteria. Act designed to directly
cause the harm in support of a party to the conflict and to the
detriment of another.
- This exception should be interpreted neither too broadly nor too narrowly:
o Too broad: empties the principle that civilians cannot be attacked è
allow attacks on civilians, became lawful.
o Too narrow: allows civilians to participate in hostilities without
suffering the consequences è lack of effectivity.
Ex: Planting IED / Removing IED => civilians => who can be attacked?
1. Threshold of harm: adversely affect the military operations even if for defensive
purposes when planting IED (even for defensive purposes) but also when removing
it.
2. Direct causation.
3. Belligerent nexus.
When the participation start? End? For such long time as they take a direct part in
hostilities (definition of AP I art. 51 and rule 6). Specific recommandation for
time => ICRC recommandation + interpretatitve guidance.
20
Concrete example of what the US considered and not considered as direct

participation - US Law of War Manual 2015
There are acts on which everyone agrees they constitute conduct of hostilities, and
on the other sides, some actions on which everybody agree that they don't. In the
middle, grey zone, where reasonable people can disagree whether they do or do
not constitute direct participation èIt's all about finding the right balance between
military necessity and humanity.
(2) NIAC
Same rules BUT the difference is that there is no conception of combatants legally
speaking è no right to participate in hostilities for rebel groups.
How do we distinguish member of rebel armed force and civilians who directly
participate in hostilities?
- A combatant has the right to participate in hostilities, everything you do
during hostilities which is conform to IHL is lawful, could not be prosecute
for that.
- Member of rebel group: could be prosecute for murder bc no right to
participation in hostilities.
ð The protective shields of combatant do not exist in NIAC.
From an IHL perspective, what does it change if you consider the rebel as
combatant or as civilian directly participate in hostilities? It’s the temporal
restriction, direct hostilities only allow you to target a civilian who's directly
participating in hostilities during the time of this participation while a rebel
soldier can be target at all times.
21
The ICRC end up with a notion that is similar to the one of combatant in IAC
and would allow governmental forces to target rebel armed groups without
temporal limitation. This is why the guidance came up to the notion of
"continuous combat function" è“For the purposes of the principle of distinction
in non-international armed conflict, all persons who are not members of State
armed forces or organized armed groups of a party to the conflict are civilians
and, therefore, entitled to protection against direct attack unless and for such time
as they take a direct part in hostilities. In non- international armed conflict,
organized armed groups constitute the armed forces of a non-State party to the
conflict and consist only of individuals whose continuous function is to take a
direct part in hostilities “– ICRC, Interpretative guidance on direct
participation in hostilities, 2009.
Some states, including Belgium, don't agree with that part of the interpretative
guidance of the ICRC bc find it too restrictive.
Direct participation in hostilities (DPH) - Belgium, Operational Law Manual
(Manuel de droit operationnel) 2016
Ex: The cook of the armed group could not be targeted because he cooks for the
group but does not participate in the hostilities directly but is still part of the
group. According to the Belgian approach, it is the membership of the group that
should be the decisive criterion and not the function. But how do you identify
who is a group member and who is not? This is one of the difficulties for which
the ICRC has chosen as a criterion the continuous combat function.
2. Distinction between a rebel and civilian DPH

How do you recognize a civilian directly involved in hostilities and a rebel? In principle,
wearing a military uniform or anything else that makes it possible to differentiate them. We
will see later that if they do not, they can be prosecuted for perfidy, for deceiving others by
pretending to be civilians.
3. Specific protection
There are specific categories of persons that benefit from special protection (more enforced):
- Medical and religious personnel
- Humanitarian relief personnel
- Personnel of a peacekeeping mission
- Journalists
22
b. Indirect participation: principle of proportionality

Video extract: Army system have a system which calculates the zone, the extend of the
damage, and in concentric circles, the zone that is potentially affected by the damage.
- Sources :
o Art. 51 §5 (b) API
o Rule 14 Customary IHL: "Launching 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, is prohibited." è CUSTOMARY RULE so
apply to IAC & NIAC
- The principle of proportionality is all about balance between direct and anticipated
military advantages & collateral damage è To apply the principle correctly, need to
define those notions.
o Interpretation of the notion by the UK manual of LOAC, 2004:
Concrete and direct military advantages: "the advantage to be gained is identifiable
and quantifiable and one that flows directly from the attack, not some pious hope that it
might improve the military situation in the long term. In this sense it is like the term
'definite' used in the definition of military objects" (5. 33.3)
ð since we are in a balance scenario the broader, we interpret the concept and
direct advantages, the more collateral damage we'll allow. This is why states
wanted to avoid a too extensive interpretation.
“In deciding, whether an attack would be indiscriminate, regard must also be had to the
foreseeable effects of the attack. The characteristics of the target may be a factor here.
Thus if, for example, a precision bombing attack of a military fuel storage depot is planned
but there is a foreseeable risk of the burning fuel flowing into a civilian residential area
and causing injury to the civilian population which would be excessive in relation to the
military advantage anticipated, that bombardment would be indiscriminate and unlawful,
owing to the excessive collateral damage” (5.33.4)
ð foreseeability is a key element in proportionality, when examine whether the
principle of proportionality is violated or not, should put yourself in the shoes
of the person at the time the decision was taken.
o US Law of War Manual 2015 about collateral damage:
ð Restrictive view of how interpret collateral damage: For the collateral

damage side, won't be taken into account any civilians working in a military
objective bc they assume the risk by working there.
23
- We see that depending on how broadly or restrictively we interpret collateral damage

and concrete and direct advantage, the proportionality balance may change.
- ⚠The US view has changed in 2016: in the new version the US says that when you
plan the attack you must consider that civilian workers are present and therefore you
can take them into account as collateral damage in the balance (this is what they
implicitly said).
Ex: how far can you go in taking into account consequences of the attack? (small clip
made by the ICRC Explosive weapons in populated areas | ICRC).
The essence of this clip is proportionality. All the attacks were directed against military
objectives => no problem with the principle of distinction.
What do we take into account by moving to the collateral damage in the principle of
proportionality? The direct death and injuries from the strike itself BUT if you attack a
hospital, it could lead to difficulties on the healthcare of the general population => do
we take the death resulting from that into account? The reverbeting effect of the strike?
Are the effects foreseeable or not? If yes, should take into account.
We have now substantial experience in armed conflict to know this, for example during
the 1st Gulf war there were electricity cuts due to attacks against Iraqi forces, even if for
these attacks we couldn't know, for the next one we know, lessons were learned. So we
should take those lession into account in the process of deciding or not the attack.
CASE STUDY + clear precedents
24
B) What may be attacked?

Which objects can be a lawful military target? The same principles apply so the reasoning
is similar.
The rule, the principal distinction is the same: military objects can be targeted, civilians
cannot.
Civilian object: Like people, civilian object are define negatively: "all objects that
are not military objectives" - art. 52 §1 AP I & Rule 9 Customary IHL. So we must
know which are military objectives.
Military objectives - art. 52 §2 AP I & rule 8 Customary IHL: "military objectives
are limited to those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose partial or total destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite military
advantage".
The UK manual (2004) says on this definition: "that various elements require
explanation:
“A. the second part of the definition limits the first. Both parts must apply before an
object can be considered a military objective" For ex: military base is an object which
by nature make a direct contribution to military action. But if you are in a part of the
territory that is occupied by enemy forces, your military barracks are abandoned =>
does the destruction of those barracks in the circumstances ruling at the time give
you a definite military advantage ? Not really. It may give you a definite military
advantage if are under attack, if withdrawing and know that they could be used by
enemy forces. This is why the circumstances ruling at the time are a very important
element.
Always have to look at both parts of the equation before deciding bc can change
what's a military objective and what’s not.
"B. attacks on military objectives that cause incidental loss or damage to civilians
are not prohibited so long as the proportionality rule is complied with"
èconfirmation that the principle of proportionality applied to objects.
The UK manual also define Nature, location & Purpose:
25
There is no general document combining all the states view so we see some states view like
the UK and the US. And not many states have published their manual. They're examples.
Concrete examples:
What happened during the US-led coalition attacks against Thysus? In one of the strike,
warplane of the US attacks the power plant that feeds Aleppo city, causing a blackout in the
city. Is the power plant a lawful military objective? Always begin with the principle of
distinction then proportionality.
Problem: dual used objects => both used by armed forces and civilians. What do we do?
Some defend the view that when there's a military used it's a military objective.
Extrait de la décision de la majorité
Another example : taliban
26
The broader you interpret the military activities (just military activities or also economic
activities?, …), the broader you extend the scope of military objectives. For the teacher, the
vision goes too far because then the world trade center was a military target, ...
Certain civilian objects are specifically protected against attacks:

- Cultural property
- Humanitarian assistance
- Objects indispensable to the survival of the civilian population
- Works and installations containing dangerous forces
- Natural environment
ð Generally speaking, we have been unable to make some objects completely and totally
immune from attacks.
These specific protection regimes were starting from the idea that some objects are so
important that they need special protection from attacks and at least in the mind of some,
they should have been some objects with respect to which it'll always be legal or against
which it'll always be unlawful to launch military strikes but when we came down to
negotiating the rule and deciding on establishing the prohibition we were unable to
establish a fully fletch prohibition of attack.
However, still manage to establish that a civilian object benefiting from special protection
would be more difficult to launch military strikes against it, compared to a regular civilian
object. It is about the conditions required before launching a strike than just prohibition.
Never be completely prohibited.
27
More things on natural environment bc very few explicit rules in IHL convention and
customary law:
- Rule 35 and 55 AP I
- Equivalent customary rule in the customary law study
They don't say much. The International law commission has been working on the
subjects of the protection of environment in armed conflict and adopted the drafts
principles of the protection of the environment in relation to armed conflicts.
Environmental considerations è consequences on the environment should also be take into

account in collateral damage.
C) How can a target be attacked?

1) Principle of precaution
Sources:
- art. 57 (attacker) and 58 (party suffers from the attack) AP I
- Rules 15 - 24 customary IHL
Obligations of the attacker Obligations of the attacked

• Verification that the targets are military • Avoid placing military objectives in
objectives densely populated areas
• Choose the means and methods • Remove civilians and civilian objects
appropriate so as to avoid or minimize from the vicinity of military objectives
collateral damage
• Assessment of whether the attack may
cause excessive collateral damage
• Cancel or suspend the attack if it
becomes apparent that it is contrary to
IHL
• Give effective advance warning
• Choose the target that will cause the
least civilian damage
28
ð These obligations are obligations of means, this is why in the formulation of the obligations, have
the short phrase "to the maximum extend feasible7" or something similar. If not feasible, you can
for ex not give effective advance warning (ex: if the whole point of the attack is to catch you
enemy by surprise, you're not going to give an advance warning).
In other words, when you're asked to evaluate if an attack is legal or illegal under IHL:
- You start with the principle of distinction è military objectives?
- Principle of proportionality & collateral damage caused by the attack
- If you can avoid it, it may be illegal bc you'll not have respect the principle of precaution.
ð Can have a violation of the principle of precaution even if the principle of proportionality and
distinction are not per se violated.
Ex of how states have

interpreted the principle of
precaution:
Examples of precautions in warfare

- 1991 Gulf War, Bagdad
o In order to develop the master attack list, a six-mile area around each target was
scanned for schools, hospitals, and mosques
o Timing: bombing of work places and dual-use objects at night
- 1999 NATO Kosovo campaign
o casualty estimate in assessment of targets
o consideration of the possibility of missing the target
- 2003 Gulf War
o bombing at night
o using penetrator munitions and delayed fuses to keep blast and fragmentation within
the impact area
o choosing attack angles by taking into account the location of civilian facilities - using
tools such as « minimum safe distances »
7
Feasible: practicable or practically possible taking into account all circumstances ruling at the time, including
humanitarian and military considerations.
29
2) Prohibited methods of combat

ð Prohibited methods and prohibited weapons = prohibited means of warfare.
a. Prohibited methods
- Perfidy - art. 37§1 AP I + rule 65 but ruse of war are allowed: AP I, art. 37§2 èWhat
Exploitation of the
good faith of the
you do when pretend to be someone protected by IHL and use your adversary respect for
IHL to allow you to conduct an attack and wound or kill your adversary
- Improper use of the distinctive emblems of the Geneva Conventions - GC I, arts. 39,
44, 53, 54; GC II, arts. 41, 44, 45; AP I, art. 38; rule 59
- Improper use of the white flag of truce - HR 1907 art. 23 (f); AP I art. 38; rule 58
enemy
- Improper use of emblems, insignia or uniform of the United Nations - AP I art. 38, rule
60 and of the adversary while engaging in attacks - HR 1907 art. 23 (f); AP I art. 39§2;
rule 62
- Denial of quarter - HR 1907 art. 23(d); AP I art. 40; rule 46 (déni de quartier) è the
order not to take prisoner
- Pillage - HR 1907 arts. 28, 47; GC IV art. 33; rule 52
- Starvation - AP I art. 54§1; rule 53
- Terror attacks as a method of warfare - GC IV, art. 33§1; AP I, art. 51§2; rule 2
- Use of human shields - GC III, art. 23§1; GC IV, art. 28; AP I, art. 51§7; rule 97
b. Prohibited means of warfare

- Weapons specifically prohibited by a convention è safest one from a legal point of view:
o Biological weapons - 1972 Convention
o Chemical weapons - 1993 Convention
o Anti-personnel landmines - 1997 Convention
o Blinding laser weapons - Protocol IV to the 1980 CCW Convention
o Booby-traps - Protocol II to the 1980 CCW Convention
o Cluster munitions - 2007 Convention
-
Prohibited by nature contrary to general principles of IHL:
o The use of weapons which are by nature indiscriminate is prohibited - AP I art.
51§4; rule 71
o Weapons which by nature cause unnecessary suffering - AP I art. 35§2; rule 70
• « The use of means and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering is prohibited »
• Unnecessary suffering of combatants8 = « a harm greater than that unavoidable
to achieve legitimate military objectives » ICJ, Nuclear Weapons advisory
opinion, 1996.
st
We 1 must look if the state that is using the convention has ratified the convention è If the state
has ratified the convention, then the use of the weapon is prohibited. If there is a state that uses a
weapon but hasn’t ratified the convention, it doesn’t mean that the use is lawful as the use of the
weapon can be rendered unlawful if the weapon violates fundamental principles of IHL such as the
principle of distinction and unnecessary suffering.
8
Precise it’s about combatants bc the suffering of civilians is in all cases unnecessary.
30
II) Protection of persons

A) Humane treatment of persons at the hand of the enemy
The main general principle related to the protection of victim of war is that they must be treated
humanely and without discrimination. Everything flow from that fundamental principle è
rule 87 Customary IHL: "civilians and persons hors de combat must be treated humanely"
& rule 88 "adverse distinction in the application of international humanitarian law based on
race, color, sex, language, religion or belief, political or other opinion, national or social origin,
wealth, birth or other status, or on any other similar criteria is prohibited".
This human treatment applied to:
- Wounded, sick and shipwrecked
- Prisoners of war and civilians
1) Wounded, sick and shipwrecked

Area of the 4 GC :
- GC I protect wounded and sick on land
- GC II protect wounded, sick and shipwrecked at sea
- GC III protect prisoner of war
- GC IV protect civilians
Art. 13 GC I & II: Persons having the right to be prisoners of war who are wounded, sick,
shipwrecked.
Art. 16 GC IV: for all other persons
Art. 8 AP I unify the protection granted to wounded, sick, shipwrecked.
Main duty is to respect and protect - art. 12 GC I & II, common art. 3, rules 109 -111è it
entails:
- Duty not to attack
- Duty to search for, collect and evacuate the wounded, sick and shipwrecked without
adverse distinction whenever circumstances permit è you have to pick every person
wounded and not only those from your armies.
- Duty to administer medical care to the fullest extent practicable and without any
distinction other than medical one
- Duty to respect and protect medical personnel and units
31
How to respect and protect medical personnel and units?

- Definition: Art. 24 -27 GC I + art. 8 c & e AP I
- Must be exclusively affected to medical activities permanently OR temporarily9
o you cannot be both soldier and medical personnel at the same time.
- Lose protection when they commit acts harmful to the enemy - art. 21 & 22 GC 1 +
art. 19 GC IV + art. 13 AP I è similar to the loss of protection of civilians.
o It depends on how you interpret the concept of acts harmful to the enemy èin the
articles they’re some examples of acts that cannot be considered as harmful to the
enemy.
o Consequences of the loss of their protection è Does it mean that they could
automatically be attacked when lose protection? It depends whether it’s a direct
participation or not. If no direct participation, which consequences? They use two
different terms so we presumed that state wanted two different notions, otherwise
they would use the same notion.
• Acts harmful to the enemy:
§ Lower than direct participation in hostilities.
§ Every direct participation in hostilities will by definition be an act harmful
to the enemy BUT not every act harmful to the enemy is a direct
participation in hostilities10.
§ If the act harmful to the enemy is also a direct participation in hostilities,
they lose their protection
• BUT what happened if it's not equivalent to a direct participation? Different
views:
§ One is saying that when they lose the protection, they become combatants
and so they can be attack. The problem with this view is that it rests on the
premise that medical personnel by default are combatants and will not be
treated as such bc they wear the red cross but in essence they are
combatants
§ BUT if you look at the definition of combatant in the art. 43 API explicitly
exclude medical personnel èMedical personnel are not combatants in
their essence even if they're not wearing the red cross.
§ When they lose their protection, they cannot be targeted bc their default
position is not combatant.
§ If they lose their protection they're not entitled to the specific protection
for medical personnel and will be treated as a civilian.
• Other side of the problem is the temporality of the loss of protection:
temporally or permanent ? Opposing views. Even the ICRC cannot decide.
9
Ex temporarily : Besoin d'évacuer des blessés, vont décider qu'un véhicule sera utilisée à ces fins è le véhicule et son
conducteur sont temporairement affecté à une activité purement médicale.
10
Ex: Récolte des informations. Ces informations ne seront une participation directe que si utilisés pour un attaque. Si
pas directement lié à une attaque, ne sera pas une participation directe aux hostilités. Mais le même acte pourrait tout à
fait être un acte nuisible à l'ennemi.
32
Short case study: extract from a communiqué August 2022 by Amnesty International.
Amnesty has listed a number of fighting tactics adopted by Ukraine which endangered
civilians. Among it, the use of hospital as de facto military bases.
Russian air strike on it. T
his fact is a violation of IHL? Is there an obligation not to use hospital (civilian object)
for military purposes? No obligation under IHL but there's a consequence to that use,
the civilian object will lose its status of civilian object and become a military object
that can lawfully be targeted. When a party to the conflict use civilian object for
military purposes, it does not violate per se IHL. No violation inherent to the
modification of the use. BUT for hospital, things can be a little different/ difficult bc
depends on how we interpret the obligation to respect and protect. Not an explicit rule
but can pleaded that cannot transform hospital in military object and that they not fully
respect the obligation to respect and protect medical unit.
- In order to protect them, need to identify them è in order to identify them, we have
distinctive emblems:
2) Prisoner of War, civilians

Both the 3rd & 4th GC have the general provisions providing for the principle of humane
treatment. They also have a long list of detail provisions on protection of civilians and
detentions of prisoners of war (exercise, working, regular soldiers, cigarettes, news of the
family, …) - art. 13 GC III + art. 27 GC IV.
33
B) Fighting while respecting IHL is not an offense (for combatant in

IACs)
Le droit international humanitaire n’a d’humanitaire que le nom car il s’agit d’un droit qui
permet de blesser, de tuer, de détruire, d’endommager, de priver de libertés certaines
personnes. Ces actes ou catégories d’actes sont en temps normal incriminés par le droit pénal
de tous les États du monde MAIS lorsque ces actes sont perpétrés dans le respect du droit
applicable aux conflits armés, ils sont considérés comme étant licites.
1) Definitions
Art. 43(2) AP I clearly says that combatants have the right to participate directly in hostilities
è ⚠ this right comes with an obligation:"they must distinguish themselves from the civilian
population" - art. 44(3) AP I
Prisoner of war status - art. 4 GC III è it has 6 categories of persons that are prisoners of
war if they fall under the hand of the enemy:
- Member of state armed forces
- Members of militias, organized resistance movements and volunteer corps belonging
to a Party to the conflict if 4 conditions are met:
o Being under responsible command
o Wearing distinctive signs
o Carrying their arms openly
o Respecting the laws and customs of war in their operations
- Member of State armed forces non recognized by the Government
- Civilians accompanying state armed forces
- Crews of merchant marine and crews of civilian aircraft of the parties to the conflict
- Inhabitants resisting an invasion (levée en masse)
ð Combatants / civilians
34
For states parties to the AP I, things become more complicated bc it changes somewhat the
rules - art. 43 - 45 AP è The main thing to keep in mind is that the AP I gives a general
definition of armed forces which basically abolished the distinction between categories in art.
4 A (1) and (2) GC III.
- Art. 43§1: armed forces of a party to an IAC must respect two conditions:
o be under command responsible to a party to the conflict
o discipline which enforces compliance with IHL.
ð unify definition.
- Art. 44 distinction between "types" of armed conflict
o §3
• Al.1: Combatants have to distinguish themselves from civilian population (=
distinctive sign + carry arms openly)
§ when they are engaged in an attack
§ when they are in an operation preparatory to an attack.
• Al. 2: In situations « where, owing to the nature of the hostilities an armed
combatant cannot so distinguish himself », he should carry arms openly
§ during each military engagement;
§ during the time when he is visible to the adversary before launching the
attack è The problem is the term visible? By which means are you visible?
Include also technology?
o §4: Combatants who do not respect these conditions and are captured during the
attack lose their PW status.
2) Special cases
(1) Spies: Does the act of spying make a combatant loose its entitlement to be recognized
as prisoner of war when captured?
The rule that we can find in rule 107 of customary IHL and in art. 46 of API is that
the loss of the status of prisoner of war occurred only when the spy is take in the act (pris
sur le fait).
(2) Mercenaries : they do not have the right to combatant or prisoner of war status but
not prohibited as such to use mercenaries in IHL. There is a convention prohibiting the
use of mercenaries but need the state to ratify it. What is specific about them, is that the
definition of who can be considered as a mercenary is very strict.
Art. 47 AP I & rule 108 Customary IHL: "A mercenary shall not have the right to be
a combatant or a prisoner of war. A mercenary is any person who:
a) is specially recruited locally or abroad in order to fight in an armed conflict
b) does, in fact, take a direct part in the hostilities
c) is motivated to take part in the hostilities essentially by the desire for private
gain and, in fact, is promised, by or on behalf of a Party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces of that Party
d) is neither a national of a Party to the conflict nor a resident of territory controlled
by a Party to the conflict
35
e) is not a member of the armed forces of a Party to the conflict; and

f) has not been sent by a State which is not a Party to the conflict on official duty
as a member of its armed forces. "
Cumulative conditions èwhich is why very strict, very restrictive and difficult to apply.
Side note : condition (d) means that if Belgium or Germany by sending arms in Ukraine
become belligerent and therefore parties to the conflict, their national will by definition
automatically be excluded from the definition of mercenary.
(3) Medical and religious personnel

Already discussed. They’re not combatants, they have no right to participate in
hostilities. If captured, they have the right to be treated as PW and to continue to exercise
medical or religious tasks.
(4) Journalists
IAC: AP I, art. 79 / NIAC: rule 34
(5) Illegal combatants & terrorists:

Another category which has faced a lot of misuse.
In IHL, there's a prohibition of terrorism as a method of warfare. Prohibited to use terror

against the civilian population as a method of warfare. Everyone can violate this
prohibition (state, individual, …).
The qualification of terrorist as such does not exist in IHL, the problem here takes us
back to the post 11th September attack where after the intervention in Afghanistan, the
invasion & conflict with the Taliban & Al Qaida, the US did not want to recognize any
protective status under IHL to person they consider as terrorist/ illegal combatants. The
reason of the US was the following: what we do with Al Qaida’s members captured?
- The US say that they don't fall under any IHL categories, there is legal gap + they're
kind enough to treat them humanely bc no obligation under IHL.
- In order to be protected by the 3rd GC, armed forces need to fulfil the 4 conditions
è they do not, so they are not protected by it.
- The 4th GC is for civilians, they're not civilians either
- SO no convention that protect/ covers them.
This argument has been systematically rejected by almost everyone, including in the end
the US courts themselves. But the idea is that there's no gap between the 3rd & 4th GC
èIf don't fall under convention 3, by default fall under convention n°4 (imply by § 1
& 4 of art. 4 GC n°4):
- The person protected are those who at a given moment and, in any manner, find
themselves in the hand of an IAC, says person and not civilians!
- §4 "Persons protected by the Geneva Convention I, II or III shall not be considered
as protected persons within the meaning of the present Convention " è show that
the intention behind is that it's supposed to cover everyone.
36
This is what the recent US war manual concede in terms of unprivileged belligerents è
not per se excluded from protected person status: «The fact that a person has engaged in
hostile or belligerent conduct does not per se exclude that person from protected person
status under the GC.
35 Certain rights and privileges of the GC that a protected person who has engaged in
such conduct would otherwise receive are, however, subject to derogation for security
reasons ».
Foot note: "(Relating to derogations), those protected by GC also include all persons
who have engaged in hostile or belligerent conduct but who are not entitled to treatment
as prisoners of war.”
Important to keep in mind the temporal aspect: beginning and end è When does
captivity starts? When do we apply the 3rd Geneva Convention? When are you
supposed to stop attacking someone and to start treating him like a protective person?
Here is where the notion of person "hors de combat" comes in. This notion is defined in
art. 41 of the AP I
If try to escape no longer considered as a person hors de combat.

What if they escape? When can it be considered as a successful escape? If it's successful,
the prisoner become a combatant again. What if you capture him again? Really complex
issues. If try to escape no longer considered as a person hors de combat.
End of captivity: art. 118 GC III says that, normally, after the cessation of active
hostilities, prisoners of war can be released and repatriated èalso for civilians that are
interned BUT reasons for internment are different:
- Prisoner of war: detained bc is a combatant and if let him go, will attack you again.
- Civilian: normally not present any threat so supposed not detained them
Exceptionally, if the civilian represents a threat, then you can detained him or her
BUT need to justify it + have to check regularly if the reason of the detention are
still valid. Once the reason no longer exists, supposed to let him go.
IF don't respect this rule, the 3rd GC will continue to apply until they're released EVEN
if the hostilities ended.
The rights of persons at the hand of the enemy are inalienable èThe persons detained
can't renounced their rights – art. 7/ 7/ 7/ 8 GC & art. 17 GC III.
37
C) Civilians and law applicable in occupied territories (only for IACs)

1) Personal scope
Art. 4 §1 GC IV - personal scope of application of the convention: "Persons protected by the
Convention are those who at a given moment and, in any manner whatsoever, find themselves,
in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupying
Power of which they are not nationals. “ èlimitation: nationals are not protected. Why?
Don't need protection from your country but from the adversary
⚠Case law: War in Yugoslavia &UK
This has proven some problematic, in the context of the war in Yugoslavia: you did have
Serbian nationals, but they were of Bosnian ethnicity or muslims and then where were fighting
alongside Bosnia in the war. As you had Bosnian nationals who has Serbian ethnicity? and
therefore in the war they’re fighting alongside Serbia, against their own government.
When the ICTY was faced with this situation, if they applied textually paragraph 1 of article
4, then the Serbian muslims captured by Serbian soldiers would not be protected by the 4th
GC because they are nationals even if in the reality of the war, they are adversary. And then
the 4th GC again does not protect the Bosnian Serbs captured by the Bosnian armed forces
because they are nationals of the party who are capturing them. Well naturally, you will be
excluded from the protection of the 4th GC an all group of people who concretely needed this
protection because the adversary for them was their own government, their own armed forces.
“§166. This legal approach, hinging on substantial relations more than on formal bonds,
becomes all the more important in present-day international armed conflicts. While previously
wars were primarily between well-established States, in modern inter-ethnic armed conflicts
such as that in the former Yugoslavia, new States are often created during the conflict and
ethnicity rather than nationality may become the grounds for allegiance. Or, put another way,
ethnicity may become determinative of national allegiance. Under these conditions, the
requirement of nationality is even less adequate to define protected persons. In such conflicts,
not only the text and the drafting history of the Convention but also, and more importantly,
the Convention’s object and purpose suggest that allegiance to a Party to the conflict and,
correspondingly, control by this Party over persons in a given territory, may be regarded as
the crucial test”.
In the Tadic case, the ICTY said that the criterion of nationality is a formal one and it
doesn’t cover all the situations as the one in Yugoslavia. Therefore, we should replace the
criterion of nationality with the one of allegiance. So Bosnian Serbs led their allegiance to
Serbia and their adversary was the state of nationality Bosnia. In other words, if you apply
the logic of the convention, they don’t need the protection when they are captured by Serbs
because it’s their own party (allegiance) but they do need protection when they are captured
by the state Bosnia.
ð Here we have the theological application which is suggested by ICTY which does
contradict the text of article 4 paragraph 1 but which does correspond to the spirit and
the object and purpose of the rule which is establish in the article 4 paragraph.
38
2) Substantive rules
a. Main principles
Main principle: Civilians are protected against the effect of hostilities and should be treated at
all times humanely è Balance found between military necessity and principle of humanity
Art. 27 GC IV set down the main principles BUT (§4) :”however the parties to the conflict
may take such measures of control and security in regard to protected persons as may
necessary as a result of the war” è military necessity aspect that comes to justify some
exceptions to the principle set above.
b. Prohibitions
Specific prohibitions - art. 31 to 34 GC IV:
Are prohibited:
- Any measure causing physical suffering: murder, torture, corporal punishment,
mutilation, medical experiments, measures of brutality
- Collective punishment
- Intimidation or terrorism
- Pillage
- Reprisals
- Hostage Taking
- Physical or moral coercion especially in order to obtain information
c. Detention
4 different articles dealing with detention
- Art. 42 and 43 GC IV: detention of civilians during situation that are not occupation
o Art. 42: “The internment or placing in assigned residence of protected persons
may be ordered only if the security of the detaining powers make sit absolutely
necessary” èCivilians can't be detained except if absolutely necessary.
• Absolutely necessary doesn't mean you have a criminal procedure, means that
for some reason the civilians is conceived to be a threat, so there's a military
necessity of the detaining power to justify the detention.
o Art. 43:” Any protected person who has been interned or placed in assigned
residence shall be entitled to have such action reconsidered as soon as possible
by an appropriate court of administrative board designated by the detaining
power fo that purpose. If the internment or placing in assigned residence is
maintained, 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” èprocedural
(rudimentary) safeguards for detention of civilians
- The rules here have been complemented by human rights è additional (special
session for HR & IHL)
39
d. Occupation
What is an occupied territory?
(1) Art. 42 HR 1907 (negotiated in 1870, didn't find a better definition, a definition
more accurate), need 3 things:
- Territory: if occupying land, also maritime and aerial area
- Under the authority of the hostile army
- Authority that has been established and can be exercised.
(2) Updated è Additional commentary - art. 2 GC I:
- Physical presence without the consent of the invaded stateètoday it's
possible to envisage to have occupation without physical presence with the
technological advancements but in 99% there is a physical presence but it's
not a condition sine qua non.
- Local government is incapable of exercising its authority
- The foreign forces are in a position to exercise authority over the territory
concerned
Sources applicable :
- Art. 42 - 56 HR 1907
- Art. 27-34 + 47 and f. GC IV
What is specific to occupation is that it's a triangular relation: interest of 3 parties must be
taken into account:
- Interest of the civilian population: must live as normally as possible
- Interest of the occupied state: protection of its sovereignty
- Interest of the occupying power: must defend the military purposes of detention
ð The difficulty of the law of occupation is that it tries to strike the right balance
between these 3 interests.
Art. 55 says that the occupying power acts as fructually of the natural sources of the
occupied states èno absolute prohibition to use the natural sources BUT the occupying
power can't do what they want è again right balance.
- Administration of territory by the occupying power.
- Occupation is a temporary situation. it does not constitute title over territory.
- Occupying powers can exercise several rights in order to administer the territory
(use public property; levy taxes; adopt new legislation etc.)
- The local population must continue to live as normally as possible
This is the whole principle of this system, balance è The commentary to common art. 2
GC specifies that the law of occupation includes both negative and positive obligations:
- Negative: prohibition that apply immediately è same for both parties
- Positive: usually what we called obligation of means/ conduct (obligation de
moyen) è have to do something. Those would take effect over time The extent of
the obligation will depend on the state this is why they may vary.
40
The fundamental article of the law of occupation is the article 43 HR 1907: “It shall 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 country11” è Obligation
not to breach these rules and to protect civilians from breaches by third parties.
When does occupation end? The IAC has ended, or the effective control has ended – art. 3(b)
API
⚠In some specific cases, the law of occupation can continue to apply during the territory
recover their function è not physically present anymore but authority may still affect control.
(ex: gaza - 2005)
11
⚠ car en français (ordre et vie) + large qu'en anglais (public & safety) ècomparer les deux.
41
Chapter V: Implementation of IHL
Section I - International responsibility

Violations of IHL can in some cases triggered a double responsibility:
- Classical state responsibility: Civil natureè any violation of any obligations of IHL gives
right to state responsibility
- In parallel, the violation of some fundamental IHL obligation give rise to individual criminal
responsibility èfor the most fundamental rules
Ex : you are detaining someone as POW and don't give him cigarettes, you may violate de 4th GC,
may trigger the state responsibility >< if the POW is rape by the guard, violation of IHL by the state
AND individual criminal responsibility of the guard.
A) Civil responsibilty
What we need to know is stated in the ILC articles on state responsibility of 2001, need to prove
2 things to have an internationally wrongful act (art. 2 for state & art. 4 for international
organizations ILC 2001):
- Breach of a norm of public international law
- Breach attributed to a state
For IHL purposes, the state is responsible for all acts committed by members of its armed forces
and not only officials acts/order - art. 4 to 11 ILC ARSIWA 2001 for the attribution of acts to a
state; draft art. 8 for the attribution of armed groups to a state and art. 91 API.
For violation of IHL, cannot invoke circumstances precluding wrongfulness, either bc those IHL
rules are ius cogens (art. 26 draft articles ILC 2001) or bc in any case you couldn't invoke necessity
(art. 25 § 2(a) 2001 ILC Draft articles) or countermeasures (art. 50 §1 2001 ILC draft articles)
as a circumstance precluding wrongfulness è couldn't invoke twice.
Consequences of international responsibility: classical consequences

- Cessation of the wrongful act
- Non-repetition of the wrongful act
- Full reparation for injuries caused by the wrongful act (restitution, compensation,
satisfaction)
ICJ has repeated those
consequences in its Wall
advisory opinion.
42
B) Individual criminal responsibility

2 main pillars: which acts are international crimes or trigger international responsibility
and who gets to judge those responsible for international crimes
1) Which crimes ?
Core international crimes:
- Genocide
- Aggression
- War crimes
o For IAC have specific provisions in the GC and the API who said that there's
criminal responsibility when violate x, x & x crimes - list in the 4 GC and in
the art. 85 of the API
o List completed by list of crimes in the art. 8 of ICC statute è also confirm
war crimes in NIAC under international criminal law (was not so evident before
bc has no text before)12.
- Crimes against humanity
Sources :
- International conventions:
o War crimes in IAC - GC common art. 50/51/130/147; AP I, art. 85 §§3,4
o Genocide - Genocide Convention 1948
- International customary law
o War crimes in NIAC (cf. Statutes ICTY, ICTR, ICC, CAE etc.)
o Crimes against humanity (cf. Statutes IMT, ICTY, ICTR, ICC etc.)
2) Implementation
Who judges those crimes? 2 options: state themselves (national courts)13 or international è
3 possibilities:
- The international criminal tribunal: created by a binding decision under chapter 7
of the UN security council è Ad hoc international criminal tribunal (ICTY &
ICTR).
- Internationalized/ hybrid criminal tribunals: special court for sierra leone,

extraordinay chambers in the courts of cambodia, extraordinary african chambers,
…
12
Ex : Extraordinary African Chambers, court established by an agreement between the african union and senegal in
order to judge crimes committed in the '80s by the head of state of Chad. Among those crimes there are war crime in a
NIAC. The court established in 2013 and judges crimes committed by someone in the 1980's. Either you considered
that it’s retroactive OR that you considered that even without any provision in the texts in the 80s, these crimes were
already war crimes in customary international law AND bc there were already war crimes in customary law, you can
come back 43 years later and judges them as war crimes èin other words, Customary law can be a legal bases for
international criminal responsibility and war crimes
13
Some precedents:The Eichmann case, Israel, 1961-1962 / The Butare Four case (procès des Quatre de Butare),
Belgium,1 / The Pinochet Case, UK /Spain / Chile, 1998 - 2006
43
- Permanent International criminal court: state had enough to create small tribunals
for small conflict all around the world, so they decided in 1998 with the Rome
statute to create the ICC. Difficult decision bc the exercise of criminal jurisdiction
lies at the heart of state sovereignty. This is why the ICC functions on the bases of
the principle of complementary è only judge persons that have not been judged by
their national courts.
o Legal basis of the ICC jurisdiction: Rome statute
o Which crimes - material jurisdiction - art. 5 to 8bis ICC statute:
• War crimes
• Crime of agression
• Genocide
• Crime against humanity
o Temporal jurisdiction – art. 11 ICC statute :
• After the general entry into force of the ICC statute è 1 July 2002
• After the entry into force of the statute with respect to the relevant state
o What determines the crimes on which the ICC will have jurisdiction?
• Nationality of the author of the crime
• The place where the crime was committed
ð 1 conditions is enough.
o ⚠For the crime added to the statute through an amendment after 1998 (NOT
for genocide & crimes against humanity), art. 121 of the ICC statute
established that you need both states to have ratified the amendment for the
court to have jurisdiction è it's the amendment that matters.
o Conditions for the exercise of jurisdictions - art. 12 ICC Statute
• Ratify the statute
• Accept the jurisdiction of the ICC by a declaration
• UN security council send a situation to the courts and gives it competence.
o What kind of responsibility before the ICC/ who can be judged?
• Individual criminal responsibility - art. 25 ICC statute:
§ Author of the crime
§ Instigators
§ Accomplices
• Superior responsibility - art. 28 ICC statute è the superior is charged
for failing to prevent or punish his/her subordinates for the crime.
o Admissibility under art. 17 ICC statute: case inadmissible in case of
• pending investigation or prosecution by national authorities
• finished investigation or prosecution by national authorities
• judgment by national courts (ne bis in idem)
• insufficient gravity
44
Section II - Protecting powers and the ICRC

Sources :
- Common art. 8/8/8/9 and 9/9/9/10 GC
- Art. 126 GC III, art. 143 GC IV
- Art. 5 AP I
- Customary law rule 124.
The whole institution of protecting powers is an old one è WW1 and 2

Idea: you have an international conflict, the states that are involved in the conflict don't copy one
another, third state that basically stands between and defends the national of one state towards the
other in order to push the other state to respect IHL.
ð The duties of the protecting powers = to cooperate in the implementation of the geneva
convention and to some extend scrutinize whether the obligations of the Vienna convention are
respected or not.
In most of the recent armed conflict it hasn't be extensively used and all the obligation and duties of
the protecting powers are exercised by ICRC.
This is the whole list of the rights that are given to the ICRC by IHL to implement IHL:
- Right to offer services for humanitarian activities (eg. removal of wounded, sick and dead
from the battlefield);
- Right to offer services to protect persons;
- Right to undertake relief and assistance activities (eg. delivery of goods, provision of
medical aid etc.)
- Right to ensure that the authorities and other actors protect people and respect the applicable
legal framework;
- Right to offer good offices to parties to the conflict (with respect to, eg., settlement of
disagreements as to the interpretation and application of the GC);
- Right to visit PoWs and civilian internees in IACs
- Right to offer its services to visit detainees in NIACs
ð Difference between the 2 last rights: this is one of the differences that still exists between
the national and the non-international armed conflicts
ð The ICRC can visit every prisoner they want, visit every prison they want for IAC >< for
NIAC there is no such right, the ICRC often proposed to visit, and the parties may or may
not accept the visit. Usually they do, especially if they have an interest in ICRC visiting.
45
Section III - Enquiry and fact-finding

Important part of implementation of IHL
Enquiry by parties to the conflict - art. 52/53/132/149 common to the GC
Fact-finding:
The fact finding can be done by several actors: states themselves can do it and organize fact
finding (eg. Flotilla incident), international organizations set up fact findings commission (eg.
fact-finding missions and commissions of inquiry established by the UN Human Rights
Council), regional organizations can also conduct fact finding missions (in the conflict of
ukraine).
The only permanent fact-finding body that is established by an IHL instrument is the
International Humanitarian Fact-Finding Commission (art 90 API), its main purpose is
to establish the facts relating to violations in a conflict. It functions more or less according to
the same principles as the ICJ = states that have ratify the API do not by definition also
recognize the jurisdiction of the commission, you need to adopt a special declaration for states
to say that they recognize the competence. Need recognition of both states. This commission
existed since 1990. It is called “the sleeping beauty” of IHL because since 1990 it has only
worked once in a case where a member of the OSCE mission in ukraine fell on a mine and the
mission on the case was whether there was an attack against Ukraine or not.
46
A few months later there was a report published establishing what type of mine it was. The
reports are not public, they are confidential, only the states have access to it except if they
want to make it public.
What the commission found in the end is the type of mine and because where the mine was
placed was used by civilian, the place of the mine constitutes a violation of IHL because it has
a predictable discriminate effect.
Section IV - States
The obligation to respect and ensure respect of IHL - common art. 1 to the GC; art. 1
§1 AP I; Customary IHL, rules 139, 144
ICJ, Wall Advisory Opinion, 2004, §§158, 159
47
Updated Commentary to GC I, common article 1
The obligation to disseminate IHL - Common art. 47/48/127/144 GC; Arts 83& 87§2
API; Art. 19 AP II; Customary IHL rule 142 & 143
48
Chapter VI: Relations between IHL and Human Rights
Section I – Applicability & main schools

How potential conflicts between IHL and HRL are resolve? First of all, when can both be applied?
- IHL apply in the context of armed conflict whether international or non-international
- IHRL apply in the context of events falling under the jurisdiction of the state
What are the three main approaches to the relationship between international humanitarian law
(IHL) and international human rights law (IHRL)? What are the advantages and drawbacks of each
approach?
- Separatist:
o IHL & IHRL are completely separate è nothing to do with each other
o IHRL is always applied but when an armed conflict starts, IHL becomes relevant
and IHRL stops to be applied.
- Complementarist: IHL & IHRL are distinct but complete each other.
- Integrationist: IHRL is part of IHL
Section II – Lex specialis

“[T]he protection of the [ICCPR] does not cease in times of war, except by operation of Article 4
of the Covenant whereby certain provisions may be derogated from in a time of national emergency.
Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily
to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of
life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable
in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular
loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary
deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law
applicable in armed conflict and not deduced from the terms of the Covenant itself.” – ICJ, Legality
of Threat or Use of Nuclear Weapons, 1996
“As regards the relationship between international humanitarian law and human rights law, there
are thus three possible situations: some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet others may be matters
of both these branches of international law. In order to answer the question, put to it, the Court will
have to take into consideration both these branches of international law, namely human rights law
and, as lex specialis, international humanitarian law.” – ICJ, Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, 2004
What does lex specialis mean in practice? Does IHL will always prevail over HRL? No, because it
would mean that HRL will only be applied whenever IHL does not govern a specific matter, and
that in any other instance, if there is a conflict IHL will always prevail è There is no global rule,
it’s more a case by case situation, and mostly when it comes to “normal” conflicts between two
rules, the Court will try to apply the IHL rule and interpret it in light of the HR rule.
49
Section III - Interpretation

Can interpretation resolve all tensions between IHL and IHRL?
When there is a conflict between the outcome of two specific rules, it can be avoided through
interpretation, when it’s possible to conciliate both (Hassan v. UK, ECHR). Sometimes you will
have to stretch the “interpretation” to its limit because the rules are almost opposite.
The general rules of interpretation are found in art. 31 Vienna Convention on the law of treaties:
“Art. 31 VC:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
treaty.
3. There shall be taken into account, together with the context:

a) any subsequent agreement between the parties regarding the interpretation of the treaty
or the application of its provisions;
b) any subsequent practice in the application of the treaty which establishes the agreement
of the parties regarding its interpretation;
c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.”
Hassan v. UK ECHR:
“[T]he Court has made it clear on many occasions that the Convention must be interpreted in
harmony with other rules of international law of which it forms part [...]. This applies no less to
international humanitarian law. [...] The Court must endeavour to interpret and apply the
Convention in a manner which is consistent with the framework under international law delineated
by the [ICJ, of the three possible situations]. (...)
[T]he lack of a formal derogation under Article 15 does not prevent the Court from taking account
of the context and the provisions of international humanitarian law when interpreting and applying
Article 5 in this case. (...)
By reason of the co-existence of the safeguards provided by international humanitarian law and by
the Convention in time of armed conflict, 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.”
50
This case is about conciliating the right to liberty and the possible detention in armed conflict:
Art. 5(1) ECHR : “Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law [...].”
Art. 9(1) ICCPR: “Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by law.”
The difference between the two articles is the word “arbitrary”. In the first one, there is no mention
of the “type” of arrest or detention (meaning, all deprivation of liberty are prohibited and not just
the arbitrary one), but the article lists numerous cases where a person may be deprived from its
liberty. In order to thus conciliate that with the article 9(1), we will say that all those specific cases
listed in art. 5(1) cannot be considered arbitrary.
Georgia v. Russia (II) ECHR, , also on that matter:

“In the present case the Court will thus examine the interrelation between the two legal regimes
with regard to each aspect of the case and each Convention Article alleged to have been breached.
In doing so, it will ascertain each time whether there is a conflict between the provisions of the
Convention and the rules of international humanitarian law. (...)
[T]he situation is different in the present case [from Hassan], given that the justification for
detaining Georgian civilians put forward by the respondent Government (namely, to ensure the
security of civilians and not that of the Power in question) is not permitted under Article 5 of the
Convention or under the relevant provisions of international humanitarian law.”
51
Section IV – Extraterritorial jurisdiction

What is the relationship between ‘occupation’ in IHL and ‘extraterritorial jurisdiction’ in IHRL? Do
they set the same threshold?
There are two models of jurisdiction:

- Personal:
o Control over the victim
o Arrest, detention, shooting but not bombardment?
- Spatial:
o Control over the territory
o Effective overall control
The extraterritorial jurisdiction at the ECTHR was developed in the Al-Skeini case, ECHR:
- Territorial principle:
o Jurisdiction is presumed to be exercised normally throughout the state’s territory
o Extraterritoriality is exceptional
- State agent authority and control
o Whenever the state, through its agents, exercises control and authority over an
individual
o Diplomatic and consular agents, exercise of public functions, taking into custody,
control over ship
- Effective control over an area:
o When as consequence of lawful or unlawful military action, a contracting state
exercises effective control of an area outside its national territory
o Whether directly or through a subordinate local administration
+ notion of ECHR legal space: if non-ECHR state occupies an ECHR one, ‘the occupying State
should in principle be held accountable under the Convention for breaches of human rights within
the occupied territory, because to hold otherwise would be to deprive the population of that territory
of the rights and freedoms hitherto enjoyed’
Jurisdiction and attribution:
52
ECHR’s pronouncement in Georgia v. Russia (II)

That ‘the very reality of armed confrontation and fighting between enemy military forces seeking
to establish control over an area in a context of chaos not only means that there is no “effective
control” over an area ..., but also excludes any form of “State agent authority and control” over
individuals’
There is no jurisdiction for substantive aspect of art. 2 ECHR, but jurisdiction for detention and
treatment of civilians, treatment of prisoners of war, freedom of movement of those displaced
(prevented from returning), right to education and procedural aspect of Article 2 (duty to
investigate).
53
Section V – Notes issues des lectures

ð Bruges Colloquium 2021 VK & IHL HRL BEL Manual, mis à disposition sur l’UV par le
prof.
HRL remain applicable in time of armed conflict or occupation, IHL does not exclude the
applicability of human rights – Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, ICJ, 1996 and others precedents.
Two main approaches to the relations between IHL and IHRL:
- IHRL is subordinates to IHL: // application of IHRL to armed conflicts has no substantial
added value
o IHRL will be interpreted in a way to prohibit what is prohibited by IHL AND not
to render unlawful a conduct that does not violate IHL.
o 2 important consequences of the // application of IHRL in armed conflicts:
§ Influence exercised by IHRL on the definition of terms used in IHL
treaties
§ Possibility for human rights bodies to have jurisdiction over violations
committed during armed conflicts.
- Maintaining IHRL autonomy with respect to IHL: IHRL imposes on states obligations that
do not exist under IHL.
o In the General comment, the Human Rights Committee favors a meaningful
simultaneous application of IHL and IHRLè Conformity with IHL does not
necessarily imply conformity with IHRL and it is possible for IHRL to be
violated during armed conflict even when IHL is complied with.
o Other states adopted a nuanced view as to the complementarity leading to both
branches being sources of autonomous obligations.
Règle Générale : une situation couverte par le droit des conflits armés n’exclut pas l’application des
règles relatives aux droits de l’homme è peut déroger à certaines dispositions mais n’entraine pas
l’extinction de la totalité des règles.
On utilise souvent la notion de lex specialis è Droit des conflits armés l’emporte sur le droit
international des droits de l’homme è ATTENTION, cette règle permet de résoudre les conflits de
normes mais le corpus juridique du droit des conflits armés ne constitue pas en tant que tel une lex
specialis. Le rapport entre les deux coprs de règles doit s’appréhender en terme de complémentarité.
54

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SZCZYRBA MANON 2022/2023

Code du droit des conflits armés

4 grands blocs pour le cours :

Chapter I - General presentation and classification of conflicts

Since the beginning, human use violence as a way to settle disagreements.

Section I - General presentation of LOAC (law of armed conflict)

II) A law wich is part of public international law.

Back to sources of PIL:

III) Law both simple & complicated

- 1949: 4 Geneva Conventions è after WW2.

IV) Relations of LOAC with other branches of public international law

ð expression of the just war idea

ð Justify in the sense of provided legal bases.

B) Relations of LOAC and human rights

- IHRL apply extraterritorially:

If they apply, how do they interact with IHL?

C) Relations of LOAC with international criminal law

Chapter II - Classification of armed conflicts

What is important is that in order to do this classification :

Case study: classification of the situation in Ukraine

Chapter III - Scope of application of armed conflicts.

Why is it important to identify whether we are in a situation of armed conflict?

Section I - Material scope of application

Which rule apply?

I) International armed conflict (IAC)

II) Non international armed conflict (NIAC)

- Certain level of intensities of hostilities

What applied in NIAC ?

What about AP II 1977?

There are 3 additional conditions:

Ex. Afghanistan & Belgium è A. & B. have ratified the protocol

III) Special cases

B) From IAC to NIAC: internalized armed conflicts

C) Transnational armed conflicts

Section II - Personal scope

Section III - Temporal scope

Section IV - Geographical scope

Chapter IV: Conduct of hostilities

Section I - Substantial rules of LOAC

Definition of the two elements by the UK LOAC manual of 2004:

Application: things are different.

Section II - Basic rules and principles

A) Who may be the object of attack?

1) Distinction between civilian and combatant

Don't participate => not a threat Participate in hostilities =>

But who's a civilian & who's a combatant?

If we go beyond customary rule and look in treaty law:

2) Exceptions to the protection of civilians

Concrete example of what the US considered and not considered as direct

2. Distinction between a rebel and civilian DPH

b. Indirect participation: principle of proportionality

o US Law of War Manual 2015 about collateral damage:

ð Restrictive view of how interpret collateral damage: For the collateral

- We see that depending on how broadly or restrictively we interpret collateral damage

CASE STUDY + clear precedents

B) What may be attacked?

The UK manual also define Nature, location & Purpose:

Another example : taliban

Certain civilian objects are specifically protected against attacks:

Environmental considerations è consequences on the environment should also be take into

C) How can a target be attacked?

Obligations of the attacker Obligations of the attacked

Ex of how states have