CONDUCT OF HOSTILTIES

Section 1: The Distinction between the Law of The Hague and the Law of Geneva

The law of The Hague is the branch of IHL which imposes restrictions and limitations on the
means and methods of warfare.

The law of Geneva is more concerned with the protection of victims of armed conflicts including
civilians and hors de combat. Hors de combat refers to those who were taking part in hostilities
but are no longer taking part in hostilities. The year 1864 marks the beginning of the modern
codified IHL. This was due to the adoption of the first Geneva Convention. This, however, does
not mean that the rules of IHL were completely new.

Section 2: The Protection of the Civilian Population against the Effects of Hostilities

In this Section, you will study the different provisions in IHL meant to provide protection to
civilians from the effects of armed conflicts.

2.1 The Basic Rule: Article 48 of Additional Protocol I

Article 48 of the First Additional Protocol reads as follows:

In order to ensure respect for and protection of the civilian population and civilian objects, the
Parties to the conflict shall at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives and accordingly shall direct their
operations only against military objectives.

The principle of distinction flows from the principle of necessity. Dear learner, is it necessary to
attack empty military barracks? Of course not! It would be waste of bullets and arsenals to do so.

Dear learner, is there any point attacking the civilian population in an armed conflict? What are
the possible advantages of refraining from attacking the civilian population in armed conflict?

The following are some of the benefits of distinction:

 Refraining from attacking civilian population is consistent with military discipline.

 Refraining from attacking civilian population is important for morale.

1
  Refraining from attacking civilian population is also ensures economy of force. There is
no need to waste one’s military armaments and bullets if that does not bring about any
military advantage.
 Reciprocity: if the adversary refrains from attacking civilians, there is high chance that
the enemy would also do the same. Public support at home and abroad.
 Refraining from attacking civilians makes it possible for the warring parties to attain
lasting peace. If the number of civilians killed is too many, this causes bitterness thereby
preventing a return to peace.

What is the distinction that is required to be made by the Basic Rule?

The distinction to be made based on Article 48 is between:

– a) civilian population and combatants

– b) civilian objects and military objectives

2.2 Permissible Attacks, Military Objectives and Military Necessity

What is the meaning of military objectives?

According to IHL only military objectives may be attacked. Therefore, the definition of the term
military objectives becomes very crucial. Is the principle of distinction important, if there is no
clear definition of what constitutes military objectives? Of course, not!

Bear in mind from the outset that an object becomes military objective or civilian object not by
virtue of its character but according to use by the enemy. Also bear in mind the fact that it is not
possible to have an exhaustive list of military objectives.

The term “military objectives” is defined under Article 52(2) of the First Additional Protocol as
follows:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military
objectives are limited to those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.

2
According to the definition provided above, there are two criteria which need to be fulfilled
cumulatively. First, the object has to contribute effectively to military action of one side.
Secondly, its destruction, capture or neutralization has to offer a definite military advantage for
the other side. What counts is that first that the action and the advantage have to be military. The
political aim of victory may be achieved through violence only by using violence against military
objectives; criteria must be fulfilled ‘in the circumstances ruling at the time.’

Explain the meaning of definite military advantage in Article 52(2).

The advantage must be military and not political. Political advantage is insufficient. The official
ICRC Commentary on Additional Protocol I notes that the concept "definite military advantage
in circumstances ruling at the time" means it is not "legitimate to launch an attack which only
offers potential or indeterminate advantages. Those ordering or executing the attack must have
sufficient information available to take this requirement into account; in case of doubt, the safety
of the civilian population, which is the aim of the Protocol, must be taken into consideration."
The other authoritative commentary, the New Rules, similarly indicates that the adjective
"definite" which modifies "military advantage….is a word of limitation denoting in this context a
concrete and perceptible military advantage rather than a hypothetical or speculative one."

Explain the meaning of “in the circumstances ruling at the time” Article 52(2).

The requirement that the definite military advantage must be present "in circumstances ruling at
the time" imposes an additional significant limitation on the attacker's target selection. This
element emphasizes that in the dynamic circumstances of armed conflict, objects which may
have been military objectives yesterday, may no longer be such today and vice versa. Thus,
timely and reliable information of the military situation is an important element in the selection
of targets for attack.

A leading humanitarian law scholar, who was present at the drafting of Additional Protocol I,
endorses these interpretations by stating:

The "definite military advantage" required under the definition must be present "in the
circumstances ruling at the time." This element in the definition effectively precludes military
commanders from relying exclusively on abstract categorizations in the determination of whether
specific objects constitute military objectives ("a bridge is a military objective; an object located

3
in the zone of combat is a military objective," etc.). Instead, they will have to determine whether,
say, the destruction of a particular bridge, which would have been militarily important yesterday,
does, in the circumstances ruling today, still offer a "definite military advantage": if not, the
bridge no longer constitutes a military objective and, thus, may not be destroyed.

Whether the required definite military advantage under prevailing circumstances would occur
from a particular attack "must be judged in the context of the military advantage anticipated from
the specific military operation of which the attack is a part considered as a whole, and not only
from isolated or particular parts of that operation."

2.2.1 Types of Military Objectives

Additional Protocol I does not delineate specific categories of persons or property that can be
considered legitimate military objectives. It is clear, however, that enemy combatants and
civilians who assume a combatant’s role are legitimate targets. The enemy's encampments and
his armament, such as military aircraft, tanks, anti-aircraft emplacements and troops in the field
are undisputed military objectives.

The ICRC Commentary contains the following proposed list of military objectives:

 Armed forces . . . and persons who . . . take part in the fighting.

 Positions, installations or construction occupied by the forces . . . as well as combat
objectives (that is to say, those objectives which are directly contested in battle between
land or sea forces including airborne forces).
 Installations, construction and other works of a military nature, such as barracks,
fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National
Defense, Supply) and other organs for the direction and administration of military
operations.
 Stores of arms or military supplies, such as munitions dumps, stores of equipment or fuel,
vehicles parks.
 Airfields, rocket launching ramps and naval base installations.
 Those of the lines and means of communication (railway lines, roads, bridges, tunnels
and canals) which are of fundamental military importance.

4
  The installations of broadcasting and television stations; telephone and telegraph
exchanges of fundamental military importance.
 Industries of fundamental importance for the conduct of the war:
 industries for the manufacture of armaments . . .;
 industries for the manufacture of supplies and material of a military character,
such as transport and communications material, equipment for the armed forces;
 factories or plant constituting other production and manufacturing centers of
fundamental importance for the conduct of war, such as the metallurgical,
engineering and chemical industries, whose nature or purpose is essentially
military;
 storage and transport installations whose basic function it is to serve the industries
referred to in (a)-(c);
 Installations providing energy mainly for national defense, e.g. coal, other fuels,
or atomic energy, and plants producing gas or electricity mainly for military
consumption.
 Installations constituting experimental, research centers for experiments on and
the development of weapons and war material.

2.2.2 Dual-Use Objects

The ICRC's model compilation includes objects that have "dual-uses or functions," that is, they
serve the needs of the civilian population, but they also effectively contribute to the enemy's
military action. These objects typically include:

 bridges,
 power plants,
 chemical and other factories,
 fuel storage depots,
 railroad and other transportation facilities and systems,
 Vehicles and communications facilities.

It is important to understand that, under customary law, civilian objects enjoy general protection
against direct attack. Article 52(1) defines civilian objects in the negative; that is, as all objects

5
that are not military objectives, as defined in paragraph 2 of that same article which sets forth the
two-fold test for military objectives. Therefore, article 52 implicitly characterizes all objects as
civilian, unless they make an effective contribution to the enemy's military action and unless
destroying, capturing, or neutralizing them offers a definite military advantage in the prevailing
circumstances.

In doubtful situations, article 52 creates a presumption that objects normally dedicated to civilian
use, such as churches, houses, or schools, are not employed to contribute effectively to military
action. This presumption attaches only to objects that ordinarily have no significant military use
or purpose. This presumption, therefore, does not apply to dual-use objects.

2.2.3 The Loss of Protection of Civilians

The principal aim of IHL is to protect the victims of armed conflict and to regulate the conduct
of hostilities. Article 50(1) of Protocol I defines civilians as those who are not combatants.
Everyone who is not a combatant and civilians who are not unlawfully engaged in direct
participation in hostilities are entitled to protection.

Are there reasons that may entail the loss of protection of civilians under IHL?

Civilians are protected only in so far as they are not taking direct part in hostilities. Article 51(3)
of the First Additional Protocol provides that civilians shall enjoy the protection afforded by this
section, unless and for such time as they do not take a direct part in hostilities. This means that
when civilians assume the role of combatants, they become objects of legitimate military targets.
They would be subject to individualized or targeted attack to the same extent as combatants.

2.2.4 Direct Participation in Hostilities

What are the three principal elements of have direct participation in hostilities? What is direct
participation?

Does the production and supply of weapons, equipment, food, and shelter, economic,
administrative or political support by the civilian population constitute direct participation in
hostilities? From your observation, do you think civilians sit idle when armed conflict goes on?
Are civilians completely detached from the war effort?

6
The Geneva Conventions as well as their Additional Protocols do not clarify or define the
meaning of direct participation in hostilities. As a result, the ICRC undertook its own study and
issued Interpretive Guidance on the meaning of direct participation in hostilities. Based on this
Interpretive Guidance, direct participation refers to specific acts carried out by individuals as part
of the conduct of hostilities between parties to an armed conflict. The participation qualifies as
direct upon the fulfillment of three principal elements. These are threshold of harm, direct
causation and belligerent nexus. They are provided as follows:

1. The act must be likely to adversely affect the military operations or military capacity of a
party to an armed conflict or, alternatively, to inflict death, injury or destruction on
persons or objects protected against direct attack, (threshold of harm),
2. There must be a direct causal link between the act and the harm likely to result either
from that act, or from a coordinated military operation of which that act constitutes an
integral part (direct causation), and
3. The act must be specifically designed to directly cause the required threshold of harm in
support of a party to the conflict and to the detriment of another (belligerent nexus).

For how long do civilians directly participating in hostilities lose their protection?

It has been said that civilians who take direct part in hostilities lose their protection. However,
the question is for how long. The loss of protection of such civilians is not status-based i.e. they
do not lose their protection from attack because they are combatants. Instead, the loss of the
protection from attacks in this case is activity-based. Therefore, the loss of protection is not
permanent, instead it is temporary. Therefore, the loss of the protection from attack ends upon
laying down, storing or hiding the weapons or other equipment used to perform a specific hostile
act. In other words, civilians taking direct part in hostilities loss their protection only for the
duration of each specific act amounting to direct participation in hostilities. The loss of their
protection is only temporarily suspended. Therefore, this protection is sometimes described as
the “revolving door” of civilian protection.

7
2.2.5 The Presence of a Combatant or Military Objective among the Civilian Population
Does the presence of a combatant or military objective among the civilian population
render the population a military objective?

Article 50(3) of the First Additional Protocol provides that:

The presence within the civilian population of individuals who do not come within the definition
of civilians does not deprive the population of its civilian character.

Section 3: Means and Methods of Warfare

Overview

Under IHL, lawful methods of warfare are not unlimited. IHL prohibits certain kinds of attacks.
Civilian population cannot be attacked. Attacks aimed at spreading terror are also prohibited.
Attacks directed against civilian objects are also prohibited.

3.1 Prohibited or Restricted Use of Weapons

There are several prohibited means of warfare under IHL. Apart from the ones which are
prohibited, there are also restricted means of warfare. The following discussion focuses on the
principal prohibited and restricted means of warfare.

3.1.1 Attacks Intended to Spread Terror among the Civilian Population

In this connection, Article 51(2) of the First Additional Protocol provides that the civilian
population as such, as well as individual civilians, shall not be the object of attack. Acts or
threats of violence the primary purpose of which is to spread terror among the civilian population
are prohibited.

Under international law there is no justification for attacking civilians. Targeting civilians is
contrary to fundamental principles of humanity enshrined in international law which should
always apply in all circumstances.

3.1.2. Attacks against Civilian Objects

8
Does the attack of civilian objects including civilian dwellings and installations constitute a
violation of treaty and customary IHL?

In a similar manner, IHL prohibits attacks against civilian objects Article 52(1) of the First
Additional Protocol I provides that:

Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects
which are not military objectives as defined in paragraph 2.

Article 52(1) defines civilian objects as all those objects which do not fall within the ambit of
military objectives.

3.1.3. Indiscriminate Attacks

Article 51(4) of the First Additional Protocol provides that indiscriminate attacks are prohibited.
There are different attacks which constitute indiscriminate attacks. These include attacks not
directed at a specific military objective and attacks which employ weapons which cannot be
directed against at a specific military objective.

Article 51(4)(a) of the First Additional Protocol prohibits those attacks which are not directed at
a specific military objective. In addition, Article 51(4)(b) prohibits those attacks which employ a
method or means of combat which cannot be directed at a specific military objective. Article
51(5)(a) of the First Additional Protocol Provides those attacks by bombardment by any methods
or means which treats as a single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area containing a similar concentration
of civilians or civilian objects. Article 51(5)(b) also prohibits 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. Therefore, based on the above provisions, it is possible to categorize
indiscriminate attacks in to four different types:

 Attacks not directed at a specific military objective-Article 51(4)(a)

 Use of weapons which cannot be directed at a specific military objective- Article 51(4)(b)
 Treating different military objectives as a single military objective- Article 51(5)(a)
 Attacks contrary to the principle of proportionality 51(5)(b)

9
As has seen above, Article 51(5)(b) on indiscriminate attack includes "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."

3.1.4. Disproportionate Attack

3.1.5. Attacks against the Civilian Population (or Civilian Objects) by way of reprisals

What are reprisals? Are reprisals against civilians permitted under IHL?

Reprisals refer to retaliatory measures or revenge. Article 51(6) provides that attacks against the
civilian population or civilians by way of reprisals are prohibited. Similarly, Article 52(1)
provides that civilian objects shall not be the object of attack or of reprisals. The provision goes
on to state civilian objects are all objects which are not military objectives as defined in
paragraph 2.

It cannot be denied that reprisals against civilians are inherently a barbarous means of seeking
compliance with international law. The most blatant reason for the universal revulsion that
usually accompanies reprisals is that they may not only be arbitrary but are also not directed
specifically at the individual authors of the initial violation. Reprisals are typically taken in
situations where the individuals personally responsible for the breach are either unknown or out
of reach. These retaliatory measures are aimed at instead at other more vulnerable individuals or
groups who may be not even have any degree of solidarity with the presumed authors of the
initial violation; they may share with them only the links of nationality and allegiance to the
same rulers.
International Criminal Tribunal for former Yugoslavia, The Prosecutor v. Kupreskic et al.

3.2 Protected Objects

A. Civilian Objects

What are protected objects?

Dear learner, do you think that the mere protection of the civilian population per se is sufficient
unless certain civilian objects are protected too? The protection of civilian population must also
be coupled with the protection of certain civilian objects. IHL prohibits attack of civilian objects,

10
which are all objects not falling under the definition of military objectives. Therefore, a civilian
object is one failing to contribute to military action because of, e.g. its location or function and
because its destruction would provide no military objective. Accordingly, Article 52(1) of the
First Additional Protocol provides that civilian objects shall not be the object of attack or of
reprisals. The provision clarifies the meaning of civilian objects as to refer to all objects which
are not military objectives as defined in paragraph 2.

B. Specially Protected Objects

Are there objected which are provided special protection under IHL?

There are also other objects which are granted special protection under IHL. These include
cultural objects and objects indispensable for the survival of the civilian population, such as
water.

 Cultural Objects

Accordingly, Article 53 of the First Additional Protocol dealing with the protection of cultural
objects and of places of worship provides that:

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international
instruments, it is prohibited.

(a) to commit any acts of hostility directed against the historic monuments, works of art or
places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort; (c) to make such objects the object of
reprisals.
 Objects Indispensable to the Survival of the Civilian Population

What is meant by objects indispensable to the survival of the civilian population? Can they be
legitimately attacked?

Article 54(2) of the First Additional Protocol provides that

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival
of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs,

11
crops, livestock, drinking water installations and supplies and irrigation works, for the specific
purpose of denying them for their sustenance value to the civilian population or to the adverse
Party, whatever the motive, whether in order to starve out civilians, to cause them to move away,
or for any other motive.

 Works and Installations Containing Dangerous Forces

What are works and installations containing dangerous forces?

Works and installations containing dangerous forces (e.g., dams, dykes, and nuclear electrical
power generating stations) are also considered specially protected objects and may not be
attacked, even if they constitute military objectives. Attack of a military objective in the near
vicinity of such installations is also prohibited when it would cause damage sufficient to
endanger the civilian population. The special protection of these works and installations ceases
only under limited circumstances.

 Medical Equipment

Is medical equipment entitled to any special protection?

Medical equipment (including transport used for medical purposes) is among specially protected
objects against which attack is prohibited.

 The Natural Environment

Is it possible to damage the natural environment?

Means or methods of warfare with the potential to cause widespread, long-term, and severe
damage to the environment are prohibited. Article 35(3) provides that it is prohibited to employ
methods or means of warfare which are intended, or may be expected, to cause widespread, long-
term and severe damage to the natural environment. Similarly, Article 55 of the First Additional
Protocol provides that:

1. Care shall be taken in warfare to protect the natural environment against widespread,
long-term and severe damage. This protection includes a prohibition of the use of
methods or means of warfare which are intended or may be expected to cause such

12
 damage to the natural environment and thereby to prejudice the health or survival of the
population.
2. Attacks against the natural environment by way of reprisals are prohibited.

The Court does not consider that the treaties in question could have intended to deprive a State of
the exercise of its right of self-defense under international law because of its obligations to
protect the\ environment. Nonetheless, States must take environmental considerations in to
account when assessing what is necessary and proportionate in the pursuit of legitimate military
objectives. Respect for the environment is one of the elements that go to assessing whether an
action is in conformity with the principles of necessity and proportionality.

The Court, thus, finds that while the existing international law relating to the protection and
safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it
indicates important environmental factors that are properly to be taken into account in the
context of the implementation of the principles and rules of the law of applicable in armed
conflict.

International Court of Justice, nuclear weapons Advisory Opinion

3.3 Precautionary Measures

Is it possible to attack military objectives at all times irrespective of the consequences?

Dear learner, as you well know, only military objectives can be attacked under IHL. However,
does this mean that there are no restrictions imposed upon attacking military objectives? Of
course, there are restrictions! The following section is meant to investigate these restrictions.

A. An attack must be cancelled if it becomes apparent that it is a prohibited one

Is it acceptable to proceed with an attack which is prohibited?

Article 57 (2) (b) provides that an attack shall be cancelled or suspended if it becomes apparent
that the objective is not a military one or is subject to special protection or that the attack 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.

13
 B. Advance warning must be given, unless circumstances do not permit.

What do you understand by advance warning?

Article 57(2)(c) of the First Additional Protocol provides that effective advance warning shall be
given of attacks which may affect the civilian population, unless circumstances do not permit.

C. When a choice is possible, the objective causing the least danger to the civilian
population must be selected.

What do you understand by the objective causing the least danger to the civilian population?
Article 57(3) of the First Additional Protocol Provides that When a choice is possible between
several military objectives for obtaining a similar military advantage, the objective to be selected
shall be that the attack on which may be expected to cause the least danger to civilian lives and
to civilian objects.

D. Additional obligations of those who plan or decide upon an attack Article 57(2) (a)
of the First Additional Protocol also imposes additional obligations on those who
plan or decide attack.

Based on the consideration of this provision, it is possible to identify three additional obligations
imposed upon those who plan or decide attacks. These are:
a. Verify that objectives are not illicit.
b. Choose means and methods avoiding or minimizing civilian losses.
c. Refrain from attacks causing disproportionate civilian deaths.

E. Precautionary Measures against the Effects of Attacks

Article 58 of the First Additional Protocol relates to specific measures which every power must
take in its own territory in favour of its nationals, or in the territory under its control. These
precautionary measures against effects of attacks are known as “Conduct of Defense”. These
precautionary measures include the following three measures:

o They shall “endeavor to remove the civilian population, individual civilians and civilian
objects under their control from the vicinity of military objectives. In most cases, only

14
 specific categories of the population (i.e. children, the sick, or women) will be evacuated;
sometimes the whole of the population shall be evacuated.
o They shall “avoid locating military objectives within or near densely populated areas”.

This obligation, which covers “both permanent and mobile objectives […] should already be
taken into consideration in peacetime.

They shall “take the other necessary precautions to protect the civilian population, individual
civilians and civilian objects under their control against the dangers resulting from military
operations. The “other measures” include building shelters to provide adequate protection
against the effect of hostilities for the civilian population and the training of efficient civil
defence services.

3.4 Means of Warfare

States have unfettered freedom in their choice of means and methods of warfare. Do you agree?
IHL prohibits weapons causing “superfluous injury or unnecessary suffering”. In practice, the
application of this basic rule is always a compromise between military necessity and humanity.
The principle of “superfluous injury or unnecessary suffering is understood as meaning not
justified by military utility, either because of the lack or existence of only minimal utility or
because utility is considerably outweighed by the suffering caused. In regard to the means and
methods of warfare, the basic rule is stipulated in Article 35 of the First Additional Protocol as
follows:

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means
of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural environment.

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the
following. The first is aimed at the protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants; States must never make
civilians the object of attack and must consequently never use weapons that are incapable of

15
distinguishing between civilian and military targets. According to the second principle, it is
prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use
weapons causing them such harm or uselessly aggravating their suffering. In application of that
second principle, States do not have unlimited freedom of choice of means of in the weapons
they use.

The court would likewise refer, in relation to these principles, to the Martens Clause, which was
first included in the Hague Convention II with respect to the Laws and Customs of War on Land
of 1899 and which has proved to be an effective means of addressing the rapid evolution of
military technology. …

In conformity with the aforementioned principles, humanitarian law, at a very early stage,
prohibited certain types of weapons either because of their indiscriminate effect on combatants,
that is to say a harm greater than that unavoidable to achieve legitimate military objectives. If an
envisaged use of weapons would not meet the requirements of humanitarian law, a threat to
engage in such use would also be contrary to that law.

International Court of Justice, Nuclear Weapons Advisory Opinion

A. Explosive and Dum-Dum Bullets

What are explosive projectiles? What are dum-dum bullets? Are these permitted means of
warfare?

The use of explosive bullets was prohibited in 1868 at the St. Petersburg. These explosive bullets
are explosive or inflammable projectiles weighing less than 400 grammes. On the other hand,
dum-dum bullets “which expand or flatten easily in the human body, such as bullets with a hard
envelope which does not entirely cover the core or is pierced with incisions. Both explosive
projectiles and dum-dum bullets are prohibited since it was believed that they cause injuries far
greater than those normally caused by an ordinary bullet, and that are not in effect necessary to
put an adversary hors de combat i.e. no longer able to take direct part in hostilities. In other
words, these bullets cause unnecessary suffering.

B. Certain Conventional Weapons

What are the objectives of the 1980 Convention on Certain Conventional Weapons (CCW)?

16
The Convention on the prohibitions or Restrictions on the Use of Certain Conventional Weapons
(the 1980 Convention on Certain Conventional Weapons) was adopted in 1980. The Convention
was adopted to achieve the following two objectives:

o Protect civilians from the effects of weapons used in an armed conflict.

o Protect combatants from suffering in excess of that necessary to achieve a legitimate
military objective.

The Scope of application of the Convention extends to all types of armed conflicts. The 1980
Convention on Certain Conventional Weapons contains five Protocols.

Protocol I: Non-Detectable Fragments

The Protocol on Non-Detectable Fragments (Protocol I) prohibited the use of any weapon the
primary effect of which is to injure by fragments which in the human body escape detection by
X-rays.

Protocol II: Mines

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
regulates the use of mines, booby-traps and other devices. The terms have also been defined in
this manner:

"Mine" means any munition placed under, on or near the ground or other surface area and
designed to be detonated or exploded by the presence, proximity or contact of a person or
vehicle, and "remotely delivered mine" means any mine so defined delivered by artillery, rocket,
mortar or similar means or dropped from an aircraft.

"Booby-trap" means any device or material which is designed, constructed or adapted to kill or
injure and which functions unexpectedly when a person disturbs or approaches an apparently
harmless object or performs an apparently safe act.

"Other devices" means manually emplaced munitions and devices designed to kill, injure or
damage and which are actuated by remote control or automatically after a lapse of time.

Protocol II contains clearer restrictions on the use of both anti-personnel and anti-vehicle mines,
booby traps and other devices. It requires parties to a conflict to clear these weapons and take

17
additional measures to protect civilians from the dangers they pose. The Protocol also requires
that anti-personnel mines outside of marked, fenced and guarded minefields have self-destruct
features.

What is the Ottawa Treaty? What is its objective?

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and their Destruction (Ottawa Treaty) is a treaty which was adopted in 1997.
The objective of the Treaty is that of ending the use of landmines or banning anti-personnel land
mines. The treaty establishes a comprehensive ban on anti-personnel land mines.

Anti-personnel mines are mines which are designed to kill or to injure people. As a result, they
are different from anti-tank and anti-vehicle mines. Antipersonnel mines are generally containing
between 10g and 250g of explosive substance, which will detonate under 0.5 kg pressure. Anti-
vehicle mines, on the other hand, are larger than anti-personnel mines, containing between 2kg
and 9kg of explosive. They are normally activated by 100kg up to 300kg of pressure. Compared
to antipersonnel land mines, anti-vehicle land mines are of lesser threat to civilian population.
Under the Ottawa treaty, States Parties undertake never to use anti-personnel land mines in
armed conflicts.

The principal elements of the Ottawa Treaty include:

 An end to use anti-personnel mines,

 Prohibition on development,
 Prohibition on stockpiling,
 Prohibition on transfer and
 Other prohibited activities.

Protocol III: Incendiary Weapons

What are incendiary weapons? Are they permissible under IHL?

Article 1(1) of Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons

(Protocol III to the 1980 Convention) defines incendiary weapons as follows:

Incendiary weapon" means any weapon or munition which is primarily designed to set fire to
objects or to cause burn injury to persons through the action of flame, heat, or combination

18
thereof, produced by a chemical reaction of a substance delivered on the target. Incendiary
weapons can take the form of, for example, flame throwers, fougasses, shells, rockets, grenades,
mines, bombs and other containers of incendiary substances.

As regards, the legal status of incendiary weapons, Article 2 of Protocol III provides that it is
prohibited in all circumstances to make the civilian population as such, individual civilians or
civilian objects the object of attack by incendiary weapons. Moreover, the Protocol prohibits in
all circumstances to make any military objective located within a concentration of civilians the
object of attack by air-delivered incendiary weapons.

In addition, the Protocol Provides that it is further prohibited to make any military objective
located within a concentration of civilians the object of attack by means of incendiary weapons
other than air-delivered incendiary weapons, except when such military objective is clearly
separated from the concentration of civilians and all feasible precautions are taken with a view to
limiting the incendiary effects to the military objective and to avoiding, and in any event to
minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Likewise, the Protocol states that it is prohibited to make forests or other kinds of plant cover the
object of attack by incendiary weapons except when such natural elements are used to cover,
conceal or camouflage combatants or other military objectives, or are themselves military
objectives.

Protocol IV: Blinding Weapons

Article of Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention) provides
that it is prohibited to employ laser weapons specifically designed, as their sole combat function
or as one of their combat functions, to cause permanent blindness to unenhanced vision, which is
to the naked eye or to the eye with corrective eyesight devices. The Protocol prohibits States
Parties from transferring such weapons to any State or non-State entity. Article 2 of the Protocol
also calls up on States Parties to take all feasible precautions to avoid the incidence of permanent
blindness to unenhanced vision in the employment of laser systems. Such precautions shall
include training of their armed forces and other practical measures.

Protocol V: Explosive Remnants of War

19
Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention) restricts the use of
explosive remnants of war.

Article 2(2) of the Protocol requires each High Contracting Party and party to an armed conflict
shall mark and clear, remove or destroy explosive remnants of war in affected territories under its
control after the cessation of active hostilities and as soon as feasible.

B. Chemical Weapons, Poison, Bacteriological and Biological Weapons

The 1925 Geneva Protocol (Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare) prohibits the use of
chemical and biological weapons in warfare. The Protocol Provides that “the use in war of
asphyxiating, poisonous or other gases, and of all analogous liquid materials or devices, has been
justly condemned by the general opinion of the civilized world.”

In addition to the 1925 Protocol, the 1993 Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their Destruction. (Chemical
Weapons Convention)

The CWC aims to eliminate an entire category of weapons of mass destruction by prohibiting the
development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons
by States Parties. States Parties, in turn, must take the steps necessary to enforce that prohibition
in respect of persons (natural or legal) within their jurisdiction.

All States Parties have agreed to chemically disarm by destroying any stockpiles of chemical
weapons they may hold and any facilities which produced them, as well as any chemical
weapons they abandoned on the territory of other States Parties in the past. States Parties have
also agreed to create a verification regime for certain toxic chemicals and their precursors (listed
in Schedules 1, 2 and 3 in the Annex on Chemicals to the CWC) in order to ensure that such
chemicals are only used for purposes not prohibited.

A unique feature of the CWC is its incorporation of the 'challenge inspection', whereby any State
Party in doubt about another State Party's compliance can request the Director-General to send

20
an inspection team. Under the CWC's 'challenge inspection' procedure, States Parties have
committed themselves to the principle of 'anytime, anywhere' inspections with no right of
refusal.

C. Nuclear Weapons

Are nuclear weapons permissible under IHL?

Nevertheless, the Court considers that it does not have sufficient elements to enable it to
conclude with certainty that the use of nuclear weapons would necessarily be at variance with the
principles and rules of law applicable in armed conflict. ICJ, Nuclear Weapons Advisory
Opinion

3.5 Methods of Warfare

Apart from the means of warfare, there are also restrictions imposed upon methods of warfare.
These limitations imposed on methods of warfare emanate from the following principles:

 The choice of the methods of warfare is not unlimited;

 The use of methods of a nature to cause unnecessary suffering or superfluous injury is
forbidden;
 The only legitimate object of war is to weaken the military forces of the enemy.

A. Giving or Ordering No Quarter

Denial of quarter refers to the refusal to accept an enemy’s surrender. Article 40 of the First
Additional Protocol provides that it is prohibited to order that there shall be no survivors, to
threaten an adversary therewith or to conduct hostilities on this basis. No quarter will be given
means no prisoners shall be taken. In addition, Article 41 of the First Additional Protocol states
that a person who is recognized or who, in the circumstances, should be recognized to be hors de
combat shall not be made the object of attack.

As to the meaning of the hors de combat, Article 41(2) of the First Additional Protocol provides
that a person is hors de combat if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

21
 (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness,
and therefore is incapable of defending himself; provided that in any of these cases he
abstains from any hostile act and does not attempt to escape.

For a soldier to avoid liability for a violation of Article 41 it is not sufficient to say, “I did not see
it.” It must also be shown that an average, normally attentive soldier would also not have noticed
that this adversary was hors de combat.

Is there a possibility that a captured combatant can still be an object of attack?

The case under (a) may seem to be a matter of course: from the moment a combatant fall into
enemy hands he is, and enjoys the protection of, a prisoner of war. Yet, the express reference to
this case is important for two reasons. One lies in the concluding phrase of the paragraph: a
captured combatant who attempts to use violence against his captors or to escape, effectively
discontinues his status of being hors de combat and therefore, in the words of the first paragraph,
may once again the object of attack. The second reason is connected with the converse situation:
not the captured combatant who attempts to use violence against his captors but, instead, the
patrol who took him prisoner and who, rather than evacuating him to the rear area (which it
regards as too burdensome in the circumstances), would prefer to kill him, so as to be relieved of
the burden of his presence. Article 40(1) and paragraph (2) (a) implicitly exclude this solution of
the problem. For good measure, paragraph 3 indicates the behavior to be followed when “persons
entitled to protection as prisoner of war have fallen into the power of the adverse Party under
unusual conditions of combat which prevent their evacuation”:

they shall be released, and all feasible precautions shall be taken to ensure their safety. Article
41(3) provides that persons entitled to protection as prisoners of war shall be released and all
feasible precautions shall be taken to ensure their safety when they have fallen into the power of
an adverse Party under unusual conditions of combat which prevent their evacuation.

As regards the cases mentioned under (b) and (c), we may point to their relationship with
perfidy:

whenever a person by merely feigning to be in one of these situations, invites the confidence of
an adversary to lead him to believe that the latter is obliged to accord him protection, and then,

22
betraying that confidence, attempts to “kill, injure or capture” that adversary, he not only loses
his privileged status as a person hors de combat but also is guilty of perfidy.

B. Occupants of an aircraft in Distress

Should occupants of an aircraft in distress be an object of attack while in descent?

Article 42 of the First Additional Protocol provides that no person parachuting from an aircraft in
distress shall be made the object of attack during his descent. In addition, Article 42 (2) of the
same Protocol stipulates that upon reaching the ground in territory controlled by an adverse
Party, a person who has parachuted from an aircraft in distress shall be given an opportunity to
surrender before being made the object of attack, unless it is apparent that he is engaging in a
hostile act.

Occupants of an aircraft in distress are close to the situation of a hors de combat. It is immaterial
whether the person in question may be expected to land in territory controlled by his party or by
an adverse party, in the former case, his helplessness during the descent is taken to prevail over
the argument that he may soon be taking an active part in hostilities again.

Are airborne troops protected by this prohibition? Why or why not?

Article 42(3) provides that airborne troops are not protected by this Article. In other words,
airborne troops may be made the object of attack even while they are in descending by parachute
from an aircraft in distress. Once they have reached the ground in territory controlled by the
adverse party, the normal rules apply. Since they are combatants, they may be attacked and
defend themselves against the attack, they may also themselves attack the enemy. Finally, in
terms of Article 41(2) (a), they may „clearly express their intention to surrender‟ and thus bring
themselves under the protection of that Article.

C. Perfidy: The Distinction between Perfidy and Permissible Ruses of War

Article 37 of the First Additional Protocol prohibits killing, injuring or capturing an adversary by
resort to perfidy. Therefore, perfidy is prohibited method of attack. The same provision defines
perfidy as:

23
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is
obliged to accord, protection under the rules of international law applicable in armed conflict,
with intent to betray that confidence, shall constitute perfidy.

Does the mere element of “acts inviting confidence with intent to betray it” constitute a crime?

As you can gather from the reading of the definition above, perfidy is “acts inviting confidence
with intent to betray it”. For such acts to constitute a crime, there has to be the material element:
namely the actual killing, injuring or capturing of the adversary. The other point is the definition
of “perfidy” does not simply refer to “confidence” in a general sense. The confidence of the
adversary must specifically relate to a belief that he is entitled to “protection under the rules of
international law applicable in armed conflict.” A betrayal of confidence not related to this form
of legal protection does not amount to perfidy in the sense of Article 37.

Can you provide some examples of perfidy?

Article 37(1) provides the following four examples of perfidy.

(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;

(b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-
combatant status; and
(c) the feigning of protected status by the use of signs, emblems or uniforms of the United
Nations or of neutral or other States not Parties to the conflict.

What are ruses of war? Is it a permissible method of warfare? Is it any different from Perfidy?

Article 37(2) provides that ruses of war are not prohibited. The provision defines ruses as acts
which are intended to mislead an adversary or to induce him to act recklessly but which infringe
no rule of international law applicable in armed conflict and which are not perfidious because
they do not invite the confidence of an adversary with respect to protection under that law.

Can you provide some examples of ruses of war?

Article 37(2) provides the following as examples of ruses.

 the use of camouflage,

24
  decoys
 mock operations
 And misinformation.

Another example can be offered to demonstrate the distinction between perfidy and ruses of war.
A combatant on the battlefield may feign death to avoid capture and, either, rejoin his own forces
or get behind the enemy lines. This is misleading rather than perfidious conduct. It is a ruse of
war. But if the combatant feigns death with intent to kill or injure an adversary, who then
approaches him on the assumption that he is wounded and in need of help, this brings the case
within the notion of perfidy in Article 37(1)(b). Even then, the combatant feigning death with
intent to kill or injure becomes guilty of a violation of Article 37(1) only if he actually kills or
injures the adversary. For, it is worth repeating, the article does not prohibit perfidy per se but,
rather, “to kill, injure, or capture an adversary by resort to perfidy.”

D. Emblems, Flags and Uniforms

Is the improper use of the Red Cross or Red Crescent, of the flag of truce and of the emblem of
the United Nations permitted?

The flag of truce is a white flag, indicating a readiness to negotiate. Article 38(1) provides that It
is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red
lion and sun or of other emblems, signs or signals provided for by the Conventions or by this
Protocol. It is also prohibited to misuse deliberately in an armed conflict other internationally
recognized protective emblems, signs or signals, including the flag of truce, and the protective
emblem of cultural property. Article 38(2) goes on to provide that it is prohibited to make use of
the distinctive emblem of the United Nations, except as authorized by that Organization.

Is wearing of enemy uniforms a permitted method of attack?

Article 39(2) provides that it is prohibited to make use of the flags or military emblems, insignia
or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or
impede military operations.

25
Section Four: IHL and Humanitarian Assistance

This Section focuses on humanitarian assistance under IHL. It looks into the prohibition of using
famine and food as a method of warfare. It discusses the protection accorded to objects
indispensable to the survival of the civilian population.

A. Starvation of Civilians

Article 54(1) of the First Additional Protocol stipulates that starvation of civilians as a method of
warfare is prohibited. It cannot be used as a weapon to annihilate or weaken the population. To
use it as a method of warfare would be to provoke it deliberately, causing the population to suffer
hunger, particularly by depriving it of its sources of food or of supplies. It is clear that activities
conducted for this purpose would be incompatible with the general principle of protecting the
population.

Would it be unlawful to attack or destroy a railroad line simply because the railroad was used to
transport food needed to supply the population of a city, if the railroad was otherwise a military
objective under Art. 52?

Article 54(2) provides that it is prohibited to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for
the production of foodstuffs, crops, livestock, drinking water installations and supplies and
irrigation works, for the specific purpose of denying them for their sustenance value to the
civilian population or to the adverse Party, whatever the motive, whether in order to starve out
civilians, to cause them to move away, or for any other motive.

Specify the two situations in which the objects covered lose their special protection from direct
attack, destruction, or removal.

However, Article 54(3) goes on to state that the prohibitions in sub-article 2 shall not apply to
such of the objects covered by it as are used by an adverse Party in two situations.

 Sub-article 3(a) permits supplies of foodstuffs intended for the sole use of the enemy's
armed forces to be attacked or destroyed.
 Sub-article 3(b) permits attacks against objects when used for a purpose other than the
subsistence of the enemy's forces and such use is "in direct support of military action."

26
What does the term “in direct support of military action" means to you? For example,
bombarding a food-producing area to prevent the army from advancing through it, or
attacking a food-storage barn which is being used by the enemy for cover or as an arms
depot, etc.

27