Law of Armed Conflict

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A. General Introduction to the Law of Armed Conflict[edit | edit source]

I. Geneva Conventions and Additional Protocols[edit | edit source]

As a historical fact, there has not been a phenomenon as consistent as violence. The sheer prevalence of violence thus gave way to serious efforts to invent rules that those who not directly taking part in violence could be protected from its horrible consequences. Human history suggests that rules and regulations to limit the damage to human sufferings and means of their sustenance were present as early as 3000 BC. Although during those times the content of these rules was not purely humanitarian, their effect was certainly humanitarian. For example, one of the rules of the African traditional law prohibited the poisoning of wells. Given the fact of the legal understanding of the contemporary communities, wherein tribalism triumphed over the promotion of common humanitarian values, and norms, one might question the humanitarian nature of such a law. However, one cannot ignore the humanitarian effects of such laws---aiming to ebb the human suffering by making violence less miserable.[2] And the law aiming to make the wars less inhumane is called the law of armed conflict. Alternatively, it is also called International Humanitarian Law or Jus in Bello.

Hence as an accumulation effect of the centuries' old laws, customs, norms, and traditions in making warfare humane, the modern law of armed conflict took birth against the backdrop of the utterly terrible violence during the battle of Solferino in 1859.[3] The plight of wounded soldiers left to die on the battlefield, later on, compelled the International Committee of the Red Cross (ICRC) to devise laws to protect the wounded in wars. As a result of these efforts, the first diplomatic conference in Geneva in 1864 adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.[4] To discuss and promulgate this Convention, 16 states from Europe and Latin America participated in the first Geneva Conference agreeing to the principles directed at the care for the wounded at the battlefield without any distinction of the nationality. The Convention came into effect in 1865.[5] In addition to the Geneva Conventions before the First World War, the role of the Hague Peace Conferences is also important in laying down rules and regulations to give warfare a relatively more humane character. Specifically, the Second Peace Conference, which was held in 1907, laid down detailed rules and regulations related to the conduct of naval warfare. These rules were, subsequently, also enshrined in numerous Geneva Conventions.[6]

The horrific violence directed against both civilians and soldiers during the First World War gave way to urgency in formulating universally applicable rules and regulations to curtail the horrendous character of modern warfare. To translate this vision into action, ICRC and the Swiss government convened a diplomatic conference to devise binding rules to care of the sick and wounded. It also formulated detailed rules to address the issue of prisoners of war. Subsequently, after the Second World War in 1949, under the auspices of ICRC and the Swiss Government a diplomatic conference was held in Geneva aiming to expand the scope of earlier conventions and to enshrine rules aiming at the protection of civilian populations both in times of war and under foreign occupation. Most importantly, though, the said conference agreed to incorporate a common article in all the conventions narrating the applicability of these rules in international as well as non-international armed conflicts.[7]

3. Weapons Law[edit | edit source]

The character of certain weapons is central to end unnecessary suffering and superfluous injuries in warfare. That is why early instruments like the 1868 St. Petersburg Declaration and the Hague Declarations and Regulations prohibited certain weapons causing suffering among the targeted persons. More specifically, the St. Petersburg Declaration banned exploding bullets causing unnecessary injuries.[8] Later, Hague Declarations and Regulations of 1899/1907 also enshrined and protected this ban. Whereof under the rule, the use of projectiles, explosives from balloons, and asphyxiating gases were impermissible. Today, the law of armed conflict contains specific rules on the choice of weapons as means of warfare and is complemented by weapons law in the form of treaties related to different weapons, such as the 1972 Biological Weapons Convention, the 1993 Chemical Weapons Convention, or the 1980 Convention on Certain Conventional Weapons. [9] Moreover, speaking of the nuclear weapons although not outrightly banned by any treaty or court decisions so far, yet the International Court of Justice (ICJ) was categorical in questioning the applicability of the principle of proportionality in context of the usage of nuclear weapons in warfare.[10] In recent times, debates surrounding the banning of autonomous and semi-autonomous also fall under the weapons law and might end up someday as an instrument of such a law.

4. Customary Law[edit | edit source]

Even in the absence of any specific treaty law, parties in a conflict made efforts to spare the lives of innocent civilians, treated prisoners humanely, and exchanged prisoners of war at the conclusion of hostilities. These norms, as an effect of consistent practice and juridical value on the part of warring parties gradually emerged as customary rules of international law.[11] These customs then became part of various treaty laws in one form or the other. Nonetheless, they also continued maintaining their distinctive status as customary International Humanitarian Law. In this context, one might raise questions that given the fact that customary rules find expressions in treaty laws, then why do they need to continue having separate existence as the customary laws? The answer lies in the fact that there can be a state which is non-party to treaty law and may claim exemptions from the humanitarian laws. Despite these efforts, such a state would find it hard to claim any exemption because of customary rules. For further details, see the section on Customary Laws.

II. Principles of the Law of Armed Conflict[edit | edit source]

Various treaties and customary laws enshrine the principles of the law of armed conflict. They are then applicable to both international and non-international armed conflicts. They aim to regulate the conduct of hostilities to "humanize" the warfare without questioning the justifications of the recourse to the war itself. In addition, these principles help to ensure a balance between military necessity and humanitarian protection. Here, it is important to understand

Advanced: Treatment of Non-state Actors in Non-international Armed Conflicts

While international armed conflicts involve international actors (states), non-international armed conflicts include violent non-state actors, at least as one party in such conflicts. In this context, however, it is noteworthy that the treatment of non-state actors under non-international armed conflicts does not aim to grant them any legitimacy, rather it strives to safeguard the innocent humans in armed conflicts.

1. Humanity[edit | edit source]

Wars, by the use of deadly weapons of warfare, inherently, involve a horrible display of human conduct. In contrast, certain laws, strive to give war a humane character by prohibiting the cruel and inhuman treatment of opponents. By focusing on the humane treatment of prisoners of war[12] the scope of the relevant laws was later expanded to include wounded, sick, and shipwrecked, as well as those no longer directly participating in war. For example, Article 3 which is common to all Geneva Conventions prohibits the inhumane treatment of all those persons who are not, as well as no more taking part in warfare.[13] Subsequently, the principle of humanity was further elaborated in Additional Protocol I through Article 75(1): whereof the said Article provides that it is incumbent upon all parties in a conflict that humans

under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.[14]

Article 4 of Additional Protocol II further emphases that no circumstance in warfare can deprive a human of its right to be treated as human.[15] Apart from the fact of being enshrined and underlined in various treaty laws, the principle of humanity has also become an important norm of customary international law.[16] Such an importance thus underlines that, be a state or non-state violent actor, they are equally liable to uphold the principle of humanity.

2. Distinction[edit | edit source]

Distinction implies who and what can be targeted or not, when perpetrating violence. Due to its centrality within the legal discourse, distinction has emerged as a primary principle of general and customary international law. Underlining the fact, the International Court of Justice referred distinction as the 'cardinal' principle of International Humanitarian Law.[17] In the conduct of hostilities while civilians and civilian objects are never a lawful target, military objects and combatants can lawfully be attacked. However, under certain conditions, there can be permissible collateral damage to civilians and civilian objects. However, for a meaningful understanding and interpretation of this principle it is important to read it in relation to other rules ensuring the safety of civilians, until and unless they directly participate in hostilities and prohibiting attacks against those persons classified as hors de combat.[18] Historically, every code of violent conduct and legal tradition stressed, albeit to varying degrees, the protection of those humans and objects not engaging in violence and not becoming accessories to it. Within the secular tradition, however, the principle of distinction was established, for the first time, in the St. Petersburg Declaration of 1868. The Declaration states "the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy".[19] The 1899/1907 Hague Regulations (Article 25) meanwhile though did not, specifically, use the word 'civilians' yet they sought to outlaw "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended".[20] Which might be interpreted as an attempt to protect the civilians in wars and draw a distinction between those armed to take part in the fighting and those avoid becoming accessory to it.

Speaking of the modern treaty law relating to the law in war, Article 48 of the 1977 Additional Protocol I to the Geneva Conventions of 1949 provides that

(I)n 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.[21]

With their emphasis in varying degree, thus, all the above mentioned legal rules note the importance of taking utmost care in military operations to ensure that no civilian or civilian object falls victim to the violence, characteristically, meant to be directed against combatants or military objectives.

a) Combatants and Military Objects[edit | edit source]

Specifically defining combatants and military objects, Article 57 (2)(b) of the Additional Protocol I states that

an attack shall be canceled 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.[22]

The said Article stresses that it is important to direct armed attacks only against combatants and military objects. The realization of this objective is so central in upholding laws in war that an armed attack ought to be cancelled at any stage of planning or execution rather than harming non-combatants or non-military objects.

b) Civilians and Civilian Objects[edit | edit source]

To ensure the safety of civilian lives in wars, Article (13)2 of Additional Protocol II prohibits attacking civilian populations as well as treating any civilian person as an object of attack. It also outlaws those attacks or threats of violence causing terror among the civilians.[23] In the same vein, Article 57(1) of the Additional Protocol I states that "in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects". The said Protocol, furthermore, laying out the point of the centrality of the safety of civilians, in its sub-Article 57 (2)(a)(ii) stresses that all parties in a conflict should take utmost care ‘‘in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects".[24]

3. Military Necessity[edit | edit source]

In armed conduct, military necessity comes into play when translating military objectives into violent force deployment. It also sets benchmarks for qualifying means and methods in a military operation. More precisely, Article 4 of the Leiber Code defines military necessity, "as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war".[25] However, it is also noteworthy that while military necessity might be an outcome of military objectives, yet every violent act should have its own justification for qualifying as a permissible act in warfare. And such a justification should entail the requirements of another basic principle of warfare, that is, proportionality.[26] As part of earlier attempts to explain and codify this norm, Article 23(g) of the Hague Regulations of 1899/1907 prohibited "to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war".[27]

4. Proportionality[edit | edit source]

In any given armed conflict, proportionality entails the essence of perpetrating lawfully acceptable violence when conducting hostilities. Due to its centrality in assessing the justifications of warfare, the principle of proportionality is enshrined in various principles as explained above. Exclusively, it is elaborated in Articles 51 and 57 of the Additional Protocol to the Geneva Conventions of 1949. Whereof Article 51(5)(b) states that "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".[28] However, the said article, in view of the usage of humans as shields---emphasizes that such treatment of civilians will not make the military targets immune from attacks.[29] Resultantly, the responsibility for the losses to the civilian lives shall lie with those using humans as shields. Moreover, in addition to the Geneva Conventions, the Amended Protocol II to the Convention on Certain Conventional Weapons in its Article 3(8)(a,b,c) also emphasizes the principle of proportionality by prohibiting indiscriminate use of conventional weapons against civilian populations and the civilian inhabited dwellings.[30] With regard to the interpretation of this principle, it is a common understanding among states that 'direct military advantage' speaks of the operation as a whole advantage and shall not be assessed against every bit and part of the attack.[31]

5. To Take all Feasible Precautions[edit | edit source]

As a primary norm of the customary international humanitarian law, the principle of precaution, was initially set out in Article 2 of the 1907 Hague Convention (IX). The said article provides that given the presence of a military target inside an undefended town or port, it is absolutely important for the military commander to "take all due measures in order that the town may suffer as little harm as possible".[32] Subsequently, this principle was further thoroughly explained and codified through Article 57 of the Additional Protocol I to the Geneva Conventions of 1949. As the Article states that it is incumbent upon the warring parties to "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection".[33] The emphasis on precautions to spare the civilians from the consequences of warfare has been serious and consistent as was shown by a UN General Assembly Resolution in 1970, which stated that "in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations".[34] Likewise, the Second Protocol to the Hague Convention for the Protection of Cultural Property also incorporates the element of precaution in conducting violence.[35] Following the laid down rules and fulfilling their responsibility to protect civilian lives, most of the states, in one way or the other, thrashed out the principle of precaution in their military manuals to train the professional armed forces.

III. Actors in the Law of Armed Conflict[edit | edit source]

1. States[edit | edit source]

States as traditional subjects of international law play an important role in the law of armed conflict like in any other field of public international law. For centuries, they have been an important actor in armed conflicts: They have started armed conflicts, they have participated in hostilities, they occupied territory and they came together to negotiate armistices. In collective efforts, states also assembled at international peace conferences, like the ones leading to the conclusion of the first Geneva Convention, the Hague Regulations or the Geneva Conventions from 1949. The role of states is also illustrated in the two categories of armed conflicts that exist in the law of armed conflicts (cf. common articles 2 + 3 to the Geneva Conventions): There are international armed conflicts between two or more states and there are so-called non-international armed conflicts that relate to conflicts between a state and a non-state actor or between several non-state actors on the territory of a state. Depending on this classification,[36] a different set of rules and principles applies. While international armed conflicts are regulated by the four Geneva Conventions and Additional Protocol I (as well as by custom), non-international armed conflicts are governed by common Art. 3 to the Geneva Conventions and Additional Protocol II. If a state that is involved in a non-international armed conflict is not a party to Additional Protocol I, only common Art. 3 of the Geneva Conventions applies together with customary rules and principles. In sum, states participate in armed conflicts and they create the rules governing such conflicts.

2. Non-State Actors[edit | edit source]

Over the past decades, more and more non-international armed conflicts broke out, with one state fighting organized armed groups within its territory (cf. common Art. 3 to the Geneva Conventions). This explains the rise of so-called non-state actors. In armed conflicts like the ones in Syria or Colombia but also in the aftermath of 9/11, rebel and terrorist groups were parties to the conflict and participated in the hostilities as armed non-state actors. The law of armed conflict directly addresses them in common Art. 3 to the Geneva Conventions and in Additional Protocol II. There are other non-state actors involved in armed conflicts, such as private military and security companies that support a party to the conflict. Despite their active role in conflicts, non-state actors do not participate in the actual law-making procedure in the law of armed conflicts. They are not a party to any treaties in the law of armed conflict, which are concluded between states exclusively. In peace negotiations, on the other hand, non-state actors participate together with states. Their actions are also only indirectly considered when interpreting the law of armed conflict,[37] and when identifying rules and principles of customary law.[38] In the past, there have been issues with armed non-state actors and their compliance with the laws of armed conflict.[39] In sum, non-state actors participate in the conduct of hostilities against states and are addressed by the law of armed conflict, but they do not participate in the law-making process.

3. The International Committee of the Red Cross[edit | edit source]

The International Committee of the Red Cross (ICRC) is the "guardian"[40] of the law of armed conflict. Established in 1863 by Henry Dunant after the Battle of Solferino[41] as an association governed by Article 60 and following of the Swiss Civil Code, the ICRC is mandated to protect people affected by armed conflicts and violence. As a traditional subject of international law, it enjoys a special international legal status that is different than the one from NGOs or international organizations. The ICRC is guided by seven principles: Humanity, Impartiality, Neutrality, Independence, Voluntary service, Unity & Universality,[42] which guarantee access to all parties to a conflict.

4. Others[edit | edit source]

IV. Use of Force and the Law of Armed Conflict[edit | edit source]

B. Selection of Current Challenges in the Law of Armed Conflict[edit | edit source]

Beyond the frontiers of laying down elaborative and consensual rules to make violence less miserable in wars, there lies the challenge of inventing and deploying weapons which might not impede the human capacity and willingness to abide by these rules. Today, with the invention and introduction of various new technologies of warfare, this challenge has become more pronounced than ever. The following discussion highlights some of these challenges.

I. New Technologies[edit | edit source]

1. Semi-Autonomous Weapons[edit | edit source]

In terms of the revolutions in warfare technology, the twenty-first century is proving to be the most advancement frenzy so far. Whereof the leap from manned military technology to the unmanned was rapid and reciprocal. Such a swiftness in development and deployment while provides the strategic and operational edge, it also raises numerous legal questions in upholding the jus in bello principles of warfare like distinction, necessity, proportionality, etc. Due their widespread usage against non-state actors, combat drones raised these questions more often. For their precision and persistence in killing, combat drones were presented as the 'weapon of choice'.[43] In terms of saving lives of those deploying the combat drones, the results are certainly positive. However, the losses of lives when targeting alleged terrorists, are in many cases, not proportionate to the actual security threat they pose. For instance, in cases of US drone attacks against terrorists in Pakistan, Yemen, and Somalia, various governmental and non-governmental studies point to the fact that in contrast to their technological reputation for precision combat drones are not that precise, operationally.[44] Nonetheless, the US remains adamant that combat drones are precise and avoid losses to innocent lives. For example, the Obama administration in its report disclosing civilian killings in drone warfare in 2016 recorded that the civilian deaths are less than 200.[45] However, a closer scrutiny of these numbers suggests that perhaps the US government counts only children and women deaths as civilians. And the rest are eligible targets under the laws in war, at least according to the US government. It seems an even more probable proposition because various reports counting the deaths out of the US combat drones also estimate that there are children and women killed in drone warfare and their numbers are almost equal to the US estimates of total civilian deaths.[46] In view of these discrepancies surrounding the loss of innocent lives, one may notice that the dispute over evidence seems to be inherent in regard to the application of laws in war. On the other hand, it points to the fact of the mere confidence of the government in the precision of combat drones.

However, at times, such confidence did translate into the reality of precision strikes, as combat drones pinpointed the terrorists on various occasions. For example, the killing of a Pakistani Taliban leader in a drone strike, in which the missile attack was so precise that even it did not cause any damage to the house, demonstrate this fact.[47] In this case, it seems that the drone operators took 'all feasible precautions' before striking down the intended target, and adequately fulfilled the principles of necessity and proportionality adequately. Hence, concerning the technological prowess of combat drones, it is absolutely evident that they have the manifest ability to be precise and proportional. Unlike soldiers on the battlefield, combat drones do not fear for their safety, and hence, in principle can withstand risks while pinpointing the target. In practice, however, the usage of combat drones, specifically against the violent non-state actors, in recent times, raised more questions, concerning the fulfillment of humanitarian principles than answering them. In this context, one needs to closely study the combat drone deployments in Pakistan, Yemen, and various African states that involve the United States and French militaries, against terrorists.[48]

2. AI and Autonomous Weapons[edit | edit source]

Within the context of the weapons of warfare, autonomy is a relative term. It may range as well as encompass the launch of a weapon into the battlefield to the point of successfully selecting, engaging, and neutralizing the target.[49] To make the concept more understandable, the United States Department of Defense underlines that a weapons system is autonomous when "once activated, (it) can select and engage targets without further intervention by a human operator."[50] At a time when, in the case of semi-autonomous weapons while humans remain in the loop when deciding and targeting the enemy combatants on the battlefield, however, with the emergence and usage of the fully automated weapons of warfare, the humans deem to be handing over control over decision as well as practice to engage the opponents to machines. Such an emerging scenario poses serious questions for the laws of warfare. More specifically, it amplifies the challenge to the principle of proportionality whose applicability was already turning out to be a daunting one in the case of the semi-autonomous weapons. In this context, one understands that the entire notion of warfare is predicated upon the assumption that when humans face off humans on the battlefield, inherently, such a face-off imposes certain limitations on the excessive use of violence among the adversaries to achieve a particular as well as the general objective of warfare. in this way, humans might decide instantly that perhaps a certain objective of warfare can be better served by only injuring the enemy combatant rather than killing her. To the contrary, an automated gun would hardly bother to take such an instant decision at the battlefield and spare the life of a human in return for only injuring her. Likewise, speaking of the strategic and nuclear weapons, the mere presence of autonomous weapons on the battlefield can be tempting for the adversary to jump to the conclusion that might these weapons in a first strike scenario---take out the second-strike capability, and therefore, it is prudent to unleash the strategic weapons in advance. Such a scenario while on the one hand can make escalation scenarios in warfare more uncertain and dangerous. On the other hand, it can also undermine the principle of proportionality, with respect to the particular objective of warfare.[51]

Moreover, AI powered autonomous weapons can also have serious repercussions for the principle of distinction. For instance, though an automated gun is fed with various image classifications such as soldier uniforms, insignias, numerous types of rifles and ammunition, yet the software commanding the operations of a gun can be hacked and fed with different image classification. Likewise, there are also chances that a gun may also indulge in automatic fire on the basis of mistaken identity. For example, in certain experiments guns have mistaken turtles as rifles.[52] However, despite the fact of dominant voices raising serious ethical, legal, and political questions[53] about the nature as well as certain characteristics of autonomous weapons challenging the humanitarian principles in wars; there are some scholars who point to the fact that perhaps automated killing machines in the battlefield can better comb through the security threat, and thus, without fearing for its own safety, target the militarily vital object or combatant.[54]

In this context, one might presume that innovation in weapons is driven by the understanding that it might spare the lives of those seeking an edge in technology, yet it is also important to understand that these innovations must not make laws in warfare ineffective. For such understanding and reason underpinned the various instruments of international humanitarian law. Beginning with the St. Petersburg Declaration and the Hague Declarations and Regulations, it was laid down that along with the precaution, only those weapons should be deployed in warfare which assure the avoidance of unnecessary injury of the targeted persons. Inside, the Geneva Conventions and Additional Protocols, Articles 51 and 57 stressed the importance of avoiding excessive physical as well as material damages when targeting the adversary in a warfare. Avoidance of excessive damage in terms of autonomous weapons also depends upon the efficient decision-making, and such an efficiency depends upon the thorough analysis of the choices made in targeting. Autonomous weapons based on data feeds, however, reach decisions within moments, and thus, might undermine the role of human judgement.[55] Already we know that with regard to the semi-autonomous weapons, the interplay between human judgement and machines has often produced horrible consequences when it comes to upholding the humanitarian principles in warfare. Therefore, autonomous weapons, do not seem to offer any better alternatives to humans when making decisions about the application of kinetic force. The fulfillment of humanitarian principles, certainly, demands more role for the human judgement, not less.

3. Cyber Weapons[edit | edit source]

In present times, a networked world has brought upon an unprecedented level of prosperity, and thus, consequently an extraordinary challenge to secure the very platforms underpinning this networking. In such networks, signals across and within the digital platforms remain the critical mass. Any ill-intended intrusion or tempering with the signals can turn a benevolent digital tool into a destructive weapon. In this context, spyware and malicious software codes have already brought down the governmental digital platforms in Estonia and destroyed certain nuclear reactors in Iran. The scenarios like shutting down the electricity grids, bringing down a commercial aero plane, etc., by introducing malware in their control and navigation systems, are also being drawn. These scenarios render the conduct of violence an utterly discreet activity: wherein the questions of distinction and proportionality will once more come to the fore, but in a manner where these humanitarian principles shall be extremely difficult to apply and assess. To begin with, there are questions about terming damages caused by cyber weapons as an 'attack' as well as fixing of the responsibility for such act. The dominant role of violent non-state actors in contemporary violence further complicates the situation and renders questions complex.

To answer such questions, the International Committee of Red Cross, therefore, notes that only state practice can help find adequate answers to these questions.[56] For example, in cases of damage to Iranian and Estonian infrastructures, there was no claim of responsibility. And meanwhile, when selecting and hitting these targets, there was no regard for the principle of distinction either. Specifically speaking of the principle of distinction, which, along with the Hague Regulations, was effectively laid down in Article 48 of the Additional Protocol I to the Geneva Conventions of 1949 becomes problematic when applied in context of cyber warfare. For example, there can be a scenario that due to the easiness and less costly prospects, at least for the attacker, a military commander decides to shut down an electricity grid by employing a cyber attack so that the command and communication structures of a nearby military installation may be rendered useless, yet the same targeting can also turn off electricity in a nearby hospital and cause scores of deaths. In such a targeting, there is loss of innocent lives albeit as an unintended consequence of a cyber attack. Besides violating the principle of distinction, such an attack also ends up undermining the principles of humanity, military necessity, and proportionality.[57]

To address these issues of uncertainty and complexity, some scholars have suggested the adoption of binding international conventions protecting civilian digital platforms.[58] However, questions shall arise when targeting those platforms that power civilian and military installations simultaneously. In such a scenario, there is never a question of either and or rather the digital platform is plugged to both the installations. Speaking of the functioning of cyber platforms, one can assume that such a dilemma will not be specific to the given case, rather it will run across numerous platforms, and thus, complicating any military targeting decisions.[59] Therefore, when a targeting decision is taken and executed, in all probability, it will raise to questions about the applicability of proportionality. After all, pinpointing a networked target is extremely difficult and chances of indirectly targeting civilian cyber infrastructure while brining down a military one are higher during a conflict.[60] Massive cyber attacks against the Ukrainian government's digital infrastructure once again point toward such trends and difficulties when targeting cyber objects.[61] Tracing of the sources to fix responsibility for usages and damages caused by cyber weapons is another dilemma, potentially, making the violence in war a murky business and adding another layer of complexity in applying the legal principles to ensure transparency as well as accountability.[62] Apparently, one can assume that unlike autonomous and semi-autonomous weapons, cyber weapons due to their nature, are indiscriminate and disproportionate. Hence to make their use subject to the given humanitarian rules and principles is bound to pose serious challenges.

II. Protected Groups and Objects[edit | edit source]

The law of armed conflict was originally created by states to spare the civilian population from the consequences of the conduct of hostilities. Nevertheless, some provisions of the Geneva Conventions and their Additional Protocols address other groups or objects, such as medical personnel and establishments, cultural property, or the natural environment. Indirectly, their protection can often be linked to the protection of civilians and civilian objects, but these provisions install special protection for specific protected groups and objects that differs from the general protection of civilians and civilian objects. The three mentioned examples are only a selection of protected groups and objects.

1. Medical Personnel[edit | edit source]

The first Geneva Convention from 1864 was concluded to take care of the wounded and sick combatants of all belligerent states who were hors de combat (out of the battle). Without medical personnel and medical care, their protection would have remained meaningless. Today, several Geneva Conventions as well as Aditional Protocol I include provisions on the protection of medical personnel, medical units, and medical establishments. Art. 24 and 25 GC I, Art. 36 and 37 GC II, Art. 15 AP I on international armed conflicts, and Art. 9 AP II on non-international armed conflicts contain an obligation to respect and protect medical personnel under all circumstances. First of all, medical personnel includes civilians and militaries temporarily or permanently assigned to medical purposes, such as the search for, collection, transportation, diagnosis or treatment of the wounded, sick and shipwrecked, or to the prevention of disease, or to the administration or operation of medical units or medical transports. Only people with the official assignment of medical tasks by the competent authority of a belligerent party enjoy the special protection as medical personnel.[63] Second, to identify medical personnel, it is asked to use the distinctive sign of the red cross, red crescent, or red crystal worn on clothes. In the past, the distinctive sign has made medical personnel and medical units more vulnerable, since they were visible to the enemy's forces and have been attacked unlawfully.[64] They are of particularly high value based on their essential role in medical care to each belligerent state. Third, medical personnel and medical establishments may not be object to an attack. If they fall into the enemy's hands, they are not considered prisoners of war and must be set free.[65] The opposing party may, however, retain them to give medical care to prisoners of war.[66]

military (permanent or temporary) medical personnel - Art. 24 + 25 GC I - Art. 36 + 37 GC II

civilian medical personnel assigned by a party to the conflict - Art. 20 GC IV - Art. 8 AP I

medical personnel made available by third States or organizations to a party to the conflict - Art. 8 AP I

personnel of a National Society recognized and specifically authorized by a party to the conflict - Art. 26 GC I - Art. 24 GC II - Art. 8 AP I

protection on the battlefield (including inhabitants of the combat zone): may not be attacked and may fulfill medical duties in conformity with medical ethics, Art. 24+25 GC I, Art. 36+37 GC II, Art. 15+16 AP I

once fallen in enemy hands: immediate repatriation or employment caring for POWs Art. 28-32 GC I

under control of the enemy: right to perform their medical mission, right not to perform acts contrary to medical ethics, right to maintain medical secret, except as required by law, Art. 15+16 AP I, Art. 10 AP II

2. Cultural Property[edit | edit source]

- Hague Convention for the protection of cultural property in the event of armed conflict, 1954 - First Protocol to the Hague Convention, 1954 - Second Protocol to the Hague Convention,1999 - Art. 53 AP I - art. 16 AP II - World Heritage Convention

- Chapter 12 ICRC IHL study

3. Natural Environment[edit | edit source]

The environment has been called a "silent victim" of war.[67] Art. 35(3) Additional Protocol I (AP I), regulating international armed conflicts, specifically protects the "natural environment" from "widespread, long-term and severe damage." This provision has never been applied to an actual conflict since either some states to the conflict were not a party to Additional Protocol I and AP I did hence not apply.[68] Moreover, the undefined threshold of Art. 35(3) AP I has never been reached due to its vagueness, not even in the cases of the Vietnam war and the deployment of Agent Orange, or of the burning oil wells in Kuwait in 1991. During the negotiations of AP I, no consensus among states was reached regarding the definitions of the threshold. For instance, it is unclear whether "long-term" is measured in years or decades, based on the travaux préparatoires the latter seems to be the case.[69] Simultaneously to the negotiation of AP I, states drafted and adopted the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) which contains a similar threshold with almost identical wording ("widespread, long-lasting or severe"). In this case, however, states were able to agree on a definition in a memorandum of understanding: long-lasting, for instance, means "lasting for a period of months, or approximately a season" in terms of the ENMOD Convention.[70] In addition to the specific protection the "natural" environment enjoys under Art. 35(3) AP I (similar protection of the "natural" environment is also included in Art. 55(1) AP I and linked to the survival of the civilian population), elements of the environment can constitute civilian objects,[71] since they rarely serve military purposes and hence only rarely represent a military object that can lawfully be attacked. The principle of distinction thus protects the environment. The other cardinal principles of the law of armed conflict, like proportionality, military necessity, and precautions in an attack, also require the belligerent parties to at least consider the protection of the environment in their conduct of hostilities.[72] In non-international armed conflicts, which are regulated by common Art. 3 to the Geneva Conventions and Additional Protocol II, there exists no specific provisions on the environment, hence the cardinal principles as well as the protection of elements of the environment as civilian objects apply. In the 2005 ICRC study on customary international humanitarian law, three rules were identified that protect the natural environment.[73] Additionally, the UN International Law Commission started to analyze the topic "Protection of the Environment in relation to Armed Conflicts" in 2011 in order to clarify and enhance the protection of the environment in relation to armed conflict.

- IEL? - IHRL?

C. Interplay with Other Fields of Public International Law[edit | edit source]

I. Human Rights Law[edit | edit source]

II. International Environmental Law[edit | edit source]

III. International Investment Law[edit | edit source]

IV. International Criminal Law[edit | edit source]

Further Readings[edit | edit source]

  • Source I
  • Source II

Conclusion[edit | edit source]

  • Summary I
  • Summary II

Table of Contents[edit source]

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol. I, 3rd ed. (Geneva: ICRC Publications, 2011), p. 1.
  3. Fought between the French troops, allied to the Sardinians and the Austrians troops on June 24, 1859, the battle of Solferino is among the deadliest wars in Europe. It left 6,000 dead and 40,000 wounded on the very first day of the armed encounter. In fact, the sufferings of unattended wounded gave way to the formation of the Red Cross. For details, see "The battle of Solferino," available at
  4. Marco Sassòli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol. I, 3rd ed. (Geneva: ICRC Publications, 2011), p. 2.
  5. For further details of this Convention and its different articles, see "Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864," available at
  6. Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (Geneva: ICRC Publications, 2001), pp. 22-24. For non-Western but Islamic contributions, see Ahmed Al-Dawoody, "Islamic law and international humanitarian law: An introduction to the main principles," International Review of the Red Cross, Vol. 99, No. 3 (2017), pp. 995-1018; and Mohamed Badar, "Ius in Bello under Islamic International Law," International Criminal Law Review, Vol. 13, No 3 (2013), pp. 593-625.
  7. Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (Geneva: ICRC Publications, 2001), pp. 27-29.
  8. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868, available at
  9. ICRC, "Weapons", article from 30 November 2011 available at
  10. For further details, see in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, available at
  11. Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (Geneva: ICRC Publications, 2001), p. 15.
  12. Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863, available at
  13. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, available at
  14. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  15. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, available at
  16. For a detailed treatment of this principle as a customary norm, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I (Cambridge: Cambridge University Press, 2005), pp. 306-343.
  17. "Legality of the Threat or Use of Nuclear Weapons," ICJ Advisory Opinion,1996, para. 226, p. 78.
  18. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I (Cambridge: Cambridge University Press, 2005), p. 3.
  19. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868, available at
  20. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, available at
  21. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  22. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  23. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, available at
  24. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  25. Francis Lieber, U.S. War Department, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (1863), available at
  26. Oscar Schachter and Frits Kalshoven, Proceedings of the Annual Meeting (American Society of International Law), Vol. 86 (April 1-4, 1992), p. 41.
  27. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, available at
  28. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  29. Article 51(7), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
  30. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 CCW Convention as amended on 3 May 1996), available at
  31. For further details, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol I (Cambridge: Cambridge University Press, 2005), pp.49-51.
  32. Convention (IX) concerning Bombardment by Naval Forces in Time of War. The Hague, 18 October 1907, available at
  33. Article (57)(2)(a)(i), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, available at
  34. UN General Assembly, Res. 2675 (XXV), 1970, available at
  35. Article 7, Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999, available at
  36. See ICRC, Commentary GC I, pp 81–82 para. 224, available at; D. Akande, Classification of Armed Conflicts: Relevant Legal Concepts, in: E. Wilmshurst (ed.), International Law and the Classification of Conflicts (OUP, 2012), pp 32–79; J. K. Kleffner, Scope of Application of International Humanitarian Law, in: Fleck (ed.), Handbook of International Humanitarian Law, 4th ed., 2021, p. 52, para. 3
  37. Cf. conclusion 7 and its commentary of the ILC's draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties with commentaries, available at
  38. Cf. conclusion 4, para 4 of the ILC's draft conclusions on the identification of customary international law with commentaries, available at
  39. Bellal/Casey-Maslen, Enhancing Compliance with International Law by Armed Non-State Actors, Goettingen J. Int'l L. 2011, pp 175-197; see e.g. the initiative Geneva Call who aims at enhancing compliance of armed non-state actors in their conduct of hostilities to improve the protection of civilians:
  40. ICRC blog, What is the ICRC's role in developing and ensuring respect for IHL?, available at
  41. Dunant, A Memory of Solferino, available at
  42. See ICRC, Research guide "The Fundamental Principles of the International Red Cross and Red Crescent Movement," available at
  43. “Remarks of Director of Central Intelligence Agency, Leon E. Panetta, at the Pacific Council on International Policy”, CIA, May 18, 2009, available at
  44. “Living under Drones: Death, Injury and Trauma to Civilians from US Drone Practice in Pakistan”, International Human Rights and Conflict Resolution Clinic, Stanford Law School and Global Justice Clinic, New York University School of Law, 2012; Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will”, The New York Times, 29 May 2012, A1; Letta Tayler, “Between a Drone and Al-Qaeda: The Civilian Cost of US Targeted Killing in Yemen”, (New York: Human Rights Watch, 2013); Jane Mayer, “The Predator War: What are the Risks of the C.I.A.’s Covert Drone Program?” The New Yorker, October 26, 2009; and "Daily Situation Report," FATA Secretariat, Ministry of Interior, Pakistan, 2007-2017; Ben Emmerson, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism,” UN Document A/68/389, September 18, 2013; Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, presented to the Human Rights Council, 14th session, May 28, 2010,
  45. Karen DeYoung and Greg Miller, “White House Releases its Count of Civilian Deaths in Counterterrorism Operations under Obama”, The Washington Post, July 1, 2016.
  46. For details, see Peter Bergen, David Sterman and Melissa Salyk-Virk. “America’s Counterterrorism Wars," The New America Foundation, 2020, available at; and Civilian Casualties & Collateral Damage”, LAWFARE, available at
  47. Imdad Ullah, Terrorism and the US Drone Attacks in Pakistan: Killing First (London, New York: Routledge, 2021), p. 131.
  48. Hugh Gusterson, Drone: Remote Control Warfare (London: The MIT Press, 2016); “Civilian Casualties & Collateral Damage”, LAWFARE, accessed, January 12, 2020, available at; "Counting Deaths from Drone Strikes", Human Rights Institute, Columbia Law School, 2012, available at; “Living under Drones: Death, Injury and Trauma to Civilians from US Drone Practice in Pakistan”. International Human Rights and Conflict Resolution Clinic, Stanford Law School and Global Justice Clinic, New York University School of Law, 2012, available at; Letta Tayler, “Between a Drone and Al-Qaeda: The Civilian Cost of US Targeted Killing in Yemen,” Human Rights Watch, New York, 2013, available at; “A Wedding That Became a Funeral,” Human Rights Watch, 2014, available at http:// / reports / 2014 / 02 / 19 / wedding-became-funeral; and "France's Shadow War in Mali: Airstrikes at the Bounti Wedding," Stoke White Investigations, 2021, available at
  49. For a detailed treatment of autonomy in autonomous weapons systems and how may it operate in warfare, see Kenneth Payne, "Artificial Intelligence: Artificial Intelligence: A Revolution in Strategic Affairs?" Survival, Vol. 60, No. 5 (2018), pp. 7-32; Giovanni Sartor and Andrea Omicini, "The autonomy of technological systems and responsibilities for their use," in Nehal Bhutta, et al (eds.), Autonomous Weapons Systems: Law, Ethics, Policy (Cambridge: Cambridge University Press, 2016), pp. 40-65.
  50. U.S. Department of Defense, "Autonomy in Weapons Systems," directive no. 3000.09 (November 21, 2012).
  51. Michael T. Klare, "Autonomous Weapons Systems and the Laws of War," Arms Control Today, Vol. 49, No. 2 (March 2019), pp. 6-12.
  52. Ibid.
  53. For details of such voices, see Mary E. O’Connell, "Banning Autonomous Killing— The Legal and Ethical Requirement That Humans Make Near- Time Lethal Decisions," in Matthew Evangelista, and Henry Shue (eds.), The American Way of Bombing: Changing Ethical and Legal Norms From Flying Fortresses to Drones (New York: Cornell University Press, 2014), pp. 224-235; Rebecca Crootof, "A Meaningful Floor For ‘Meaningful Human Control," Temple International and Comparative Law Journal , Vol. 30, No. 1 (2016), pp. 53– 62; and Peter Asaro, “Jus nascendi, Robotic Weapons and the Martens Clause,” in Ryan Calo, Michael Froomkin, and Ian Kerr (eds.), Robot Law, (Cheltenham, UK: Edward Elgar Publishing, 2016), pp. 367– 386.
  54. Duncan Macintosh, "Fire and Forget: A Moral Defense of the Use of Autonomous Weapons Systems in War and Peace," in Duncan Macintosh and Jens D. Ohlin (eds.), Lethal Autonomous Weapons: Re- Examining the Law and Ethics of Robotic Warfare (Oxford: Oxford University Press, 2021), pp. 9-23.
  55. Dan Saxon, "A Human Touch: Autonomous Weapons, Directive 3000.09, and the "Appropriate Levels of Human Judgment over the Use of Force," Georgetown Journal of International Affairs, Vol. 15, No. 2 (Summer/Fall 2014), p. 103. For further details, see Bill Boothby, "How Far Will the Law Allow Unmanned Targeting to Go?" in Dan Saxon, ed., International Humanitarian Law and the Changing Technology of War (Leiden: Mārtiņus Nijhoff/Brill, 2013), pp. 62-63; and David Akerson, "The Illegality of Offensive Lethal Autonomy," in Dan Saxon, ed., International Humanitarian Law and the Changing Technology of War (Leiden: Mārtiņus Nijhoff/Brill, 2013), p. 7I.
  56. "International Humanitarian Law and the Challenges of Contemporary Armed Conflicts," ICRC, October 2015, p. 16.
  57. Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge: Cambridge University Press, 2017), pp. 348-50.
  58. Davis Brown, "A Proposal for an International Convention To Regulate the Use of Information Systems in Armed Conflict," Harvard International Law Journal, Vol. 47, No. 179 (2006).
  59. For a detailed analysis of this targeting dilemma, see Michael N. Schmitt, "The Law of Cyber Targeting," Naval War College Review, Vol. 68, No. 2 (Spring 2015), pp. 10-29; and Michael N. Schmitt and Eric W. Widmar, “On Target”: Precision and Balance in the Contemporary Law of Targeting," Journal of National Security Law & Policy, Vol. 7 (2014), pp. 379-409.
  60. Ibid., p. 26.
  61. Robert Hart, "Ukraine Hit By ‘Massive Cyber Attack’ As Russia Mobilizes Troops Near Border," Forbes, January 14, 2022, available at
  62. For further details, see Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, pp. 79-104.
  63. ?
  64. ?
  65. ?
  66. ?
  67. UN Environment Programme, Rooting for the Environment in Times of Conflict and War, Press release from 6 November 2019, available at (last visited 15 March 2022)
  68. ?
  69. ?
  70. See (last visited 15 March 2022)
  71. See Droege/Tougas, The Protection of the Natural Environment in Armed Conflict–Existing Rules and need for further legal protection, Nordic Journal of International Law 2013, p. 23
  72. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion from 8 July 1996, ICJ Rep. 1996, para. 30: "[…] States must take environmental considerations into 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.”
  73. Cf. rules 43-45 in chapter 14, available at (last visited 15 March 2022)