The Companion to International Humanitarian Law [1 ed.] 9789004342019, 9789004342002

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The Companion to International Humanitarian Law

International Humanitarian Law Series Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab – H.E. Judge George H. Aldrich Madame Justice Louise Arbour – Professor Ove Bring Professor John Dugard – Professor Dr. Horst Fischer – Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Ruth Lapidoth – Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron – Captain J. Ashley Roach Professor Michael Schmitt – Professor Jiři Toman

volume 55 The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of in­ ternational law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

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

The Companion to International Humanitarian Law Edited by

Dražan Djukić Niccolò Pons

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Djukić, Dražan, 1981- editor. | Pons, Niccolò, editor. Title: The companion to international humanitarian law / edited by Dražan Djukić, Niccolò Pons. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: International humanitarian law series ; volume 55 | “This important and unique volume begins with seven essays that discuss the contemporary challenges to implementing international humanitarian law. Its second and largest section comprises 263 entries covering the vast majority of IHL concepts” -- Publisher’s website. Identifiers: LCCN 2018033782 (print) | LCCN 2018033928 (ebook) | ISBN 9789004342019 (E-book) | ISBN 9789004342002 (hardback : alk. paper) Subjects: LCSH: Humanitarian law--Encyclopedias. Classification: LCC KZ6471 (ebook) | LCC KZ6471 .C654 2018 (print) | DDC 341.6/703--dc23 LC record available at http://lccn.loc.gov/2018033782

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1389-6776 isbn 978-90-04-34200-2 (hardback) isbn 978-90-04-34201-9 (e-book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Editors-in-Chief Dražan Djukić Associate Legal Officer, Chambers, International Criminal Court Niccolò Pons Associate Legal Officer, Registry’s Chambers Legal Support Unit, Kosovo Specialist Chambers

Editorial Committee Valentina Cadelo Associate Legal Adviser, Middle East and North Africa Programme, International Commission of Jurists Andrew Carswell Armed Forces Delegate, International Committee of the Red Cross Antonio Coco Departmental Lecturer in Law, Oxford University Emma Irving Assistant Professor of Public International Law, Leiden University Sandra Krähenmann Research Fellow, Geneva Academy of International Humanitarian Law and Human Rights Federica Pira Lawyer specialised in International Criminal Law and International Humanitarian Law Jonathan Somer Founder, Persona Grata Consulting; Interim Senior Legal Adviser, Canadian Red Cross (2017–2018)

Advisory Board Guido Acquaviva Deputy Registrar, Kosovo Specialist Chambers Gilbert Bitti Senior Legal Adviser, Pre-Trial Division, International Criminal Court Ivana Roagna Senior Training Specialist, UN Interregional Crime and Justice Research Institute; Consultant in Human Rights and Criminal Justice Ken Roberts Senior Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of Cambodia; Judge on the Roster of International Judges, Kosovo Specialist Chambers Sylvia Steiner Senior Researcher, Getulio Vargas Foundation Law School; former Presiding Judge, Trial Chamber iii, International Criminal Court

Contents Foreword: ihl in a Time of Crisis – Back to the Basics?  xix Guido Acquaviva Preface  xxvii Abbreviations  xxx Notes on Contributors  xxxii

Essays

Section A

1

Promoting the Teaching of ihl in Universities: Overview, Successes, and Challenges of the icrc’s Approach  3 Etienne Kuster

2

Comparing Experiences: Engaging States and Non-State Armed Groups on International Humanitarian Law  39 Andrew Carswell and Jonathan Somer

3

Legislative Measures in International Humanitarian Law: A Jigsaw of Subtle Fragmentation  56 Azra Kuci and Jelena Plamenac

4

The Future of the International Humanitarian Fact-Finding Commission: A Possibility to Overcome the Weakness of ihl Compliance Mechanisms?  79 Robert Heinsch

5

The Role of United Nations Commissions of Inquiry in the Implementation of ihl: Potential and Challenges  98 Théo Boutruche

6

The Intricate Relationship between International Human Rights Law and International Humanitarian Law in the European Court for Human Rights Case Law: An Analysis of the Specific Case of Detention in Non-International Armed Conflicts  115 Damien Scalia and Marie-Laurence Hebert-Dolbec

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International Humanitarian Law in the Jurisprudence of International Criminal Tribunals and Courts  135 Alessandra Spadaro

Section B Entries 1 Abandoned Explosive Ordnances  157 2 Acts Harmful to the Enemy  157 3 Additional Protocol i  159 4 Additional Protocol ii  162 5 Additional Protocol iii  164 6 Administrative Detention  165 7 Aerial Warfare  165 8 Amnesty  167 9 Animals  170 10 Annexation  172 11 Anti-Personnel Mine Ban Convention (1997)  174 12 Anti-Terrorist Operations  175 13 Apartheid  176 14 Area Bombardment  178 15 Armed Forces  178 16 Armed Groups  179 17 Armistice  182 18 Arms Trade Treaty (2014)  183 19 Artillery  186 20 Asymmetric Warfare  187 21 Asphyxiating Gases  188 22 Assigned Residence  188 23 Attacks  191 24 Attacks against Civilians and Persons Hors de Combat  193 25 Attacks against Historic Monuments, Works of Art and Places of Worship  196 26 Attacks against Non-Defended Localities and Demilitarised Zones  199 27 Attacks against Objects Indispensable to the Survival of the Civilian Population  202 28 Attacks against Works or Installations Containing Dangerous Forces  205 29 Attacks not Directed at a Specific Military Objective  207

Contents

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Attacks which Employ a Method or Means of Combat the Effects of which Cannot be Limited  207 31 Attacks which Employ a Method or Means of Combat which Cannot be Directed at a Specific Military Objective  207 32 Aut Dedere Aut Iudicare  207 33 Autonomous Weapons  207 34 Bacteriological Weapons  210 35 Belligerency  210 36 Belligerents  211 37 Belligerents, Equality of  212 38 Biological Weapons Convention (1972)  214 39 Blockade  216 40 Bombardment  218 41 Booby-Traps  219 42 Brussels Declaration (1874)  221 43 Camouflage  221 44 Capture Card  222 45 Casualties, Search for  224 46 Central Tracing Agency  225 47 Chemical Weapons Convention (1992)  227 48 Child Soldiers  229 49 Children  233 50 Civil Defence  236 51 Civil War  237 52 Civilian Objects  237 53 Civilian Population  238 54 Civilians  239 55 Cluster Munitions  241 56 Coastal Rescue Craft  241 57 Code of Conduct  241 58 Collateral Damage  241 59 Collective Punishment  241 60 Combatants  243 61 Command Responsibility  246 62 Commissions of Inquiry and Fact-Finding Missions  249 63 Common Article 1  252 64 Common Article 2  254 65 Common Article 3  256 66 Compelling a Protected Person to Serve in the Forces of the Hostile Power  259 67 Conciliation  261

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Contents

Continuous Combat Function  262 Convention on Certain Conventional Weapons (1980)  262 Convention on Cluster Munitions (2008)  264 Convention on the Rights of the Child (1989) and its Protocols  267 72 Conventional Arms  270 73 Counter-Terrorism  270 74 Cruel Treatment  270 75 Cultural Property  270 76 Customary International Humanitarian Law  270 77 Customary International Law  273 78 Cyber Warfare  276 79 Dead Persons  279 80 Deportation or Transfer of Civilians  281 81 Deprivation of Liberty  285 82 Deprivation of Liberty, Treatment  288 83 Derogation  291 84 Deserters  293 85 Detention  295 86 Direct Participation in Hostilities  295 87 Disability  300 88 Disappearance  303 89 Discipline  303 90 Dissemination  304 91 Distinguish, Obligation to  307 92 Distinction  307 93 Drones  309 94 Dual-Use Objects  312 95 Dum-Dum (Expanding) Bullets  312 96 Dunant, Henry  313 97 Economic Warfare  315 98 Education  315 99 Embargo  317 100 Embedded Journalists  320 101 Emblem  320 102 Enquiry  322 103 Environment  324 104 Expanding Bullets  326 105 Exploding Bullets  326 106 Extrajudicial Killing  326

Contents

107 Evacuation  327 108 Explosive Remnants of War  329 109 Explosive Weapons  330 110 Fair Trial  331 111 Flag State  335 112 Forced Labour  337 113 Foreign Fighters  337 114 Freedom Fighters  339 115 Fundamental Guarantees  341 116 Gender Violence  344 117 Geneva Convention i  347 118 Geneva Convention ii  348 119 Geneva Convention iii  349 120 Geneva Convention iv  351 121 Geneva Conventions  353 122 Geneva Gas Protocol (1925)  355 123 Geneva Law  356 124 Grave Breaches  357 125 Guerrilla  360 126 Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907)  362 127 Hague Convention for the Protection of Cultural Property (1954) and its Protocols  364 128 Hague Declaration (iv, 3) Concerning Expanding Bullets (1899)  367 129 Hague Law  367 130 Hague Peace Conferences  369 131 Hague Regulations (1907)  369 132 Health  371 133 Hors de Combat  371 134 Hospital and Safety Zones and Localities  373 135 Hospital Ships  375 136 Hospitals  376 137 Hostages  378 138 Hostilities, Conduct of  379 139 Human Rights Courts and Bodies  383 140 Human Shields  386 141 Humanitarian Assistance  390 142 Humanitarian Corridors  390 143 Humanitarian Relief  392

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144 Humanity  396 145 Humiliating and Degrading Treatment  399 146 Hybrid or Internationalised Tribunals  400 147 Implementation  402 148 Improvised Explosive Devices  404 149 Incendiary Weapons  406 150 Indiscriminate Attacks  408 151 Individual Criminal Responsibility  412 152 Information Bureaux  414 153 Inhuman Treatment  414 154 Inhumane Weapons Convention  416 155 Initiative  416 156 Integrity  416 157 Internal Disturbances and Tensions  416 158 International Armed Conflict  418 159 International Committee of the Red Cross  423 160 International Committee of the Red Cross, Visit  426 161 International Committee for Relief to the Wounded  428 162 International Convention for the Protection of All Persons from Enforced Disappearance (2006)  428 163 International Criminal Law  431 164 International Criminal Tribunals  432 165 International Human Rights Law  435 166 International Humanitarian Fact-Finding Commission  438 167 International Humanitarian Law  438 168 International Humanitarian Law, General Principles of  440 169 International Organizations  442 170 International Red Cross and Red Crescent Movement  444 171 Internment  445 172 Italian Military Internees  448 173 Ius Ad Bellum  450 174 Ius in Bello  454 175 Journalists  454 176 Judges and Public Officials  456 177 Kriegsraison  458 178 Land Warfare  458 179 Landmines  461 180 Laser Weapons  462 181 Law Enforcement  464 182 Laws and Customs of War  466

Contents

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

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223 Neutralized Zones  521 224 New Weapons  523 225 No-Fly Zone  524 226 Non-Detectable Fragments  526 227 Non-Discrimination  527 228 Non-International Armed Conflict  528 229 Non-Refoulement  534 230 Non-State Actors  536 231 Nuclear Weapons  536 232 Occupation  540 233 Orders  545 234 Outrage upon Personal Dignity  547 235 Oxford Manual on the Laws of War on Land (1880)  548 236 Participation in Hostilities  548 237 Peace Treaty  548 238 Peacekeeping  550 239 Penal Prosecution  551 240 Penal Sanctions and Legislation  553 241 Penal System  555 242 Perfidy  556 243 Physical Mutilation  558 244 Pillage  560 245 Piracy  561 246 Plunder  563 247 Poisonous Gases  563 248 Precautions, Active  563 249 Precautions, Passive  565 250 Prisoners of War  567 251 Prisoners of War, Exchange of  569 252 Private Military and Security Companies  571 253 Property, Destruction and Appropriation/Seizure of  573 254 Property, Private  576 255 Proportionality  577 256 Protected Objects  579 257 Protected Persons  582 258 Protecting Powers  585 259 Public Health and Hygiene  587 260 Public International Law  589 261 Public Officials  590 262 Public Order and Safety  590

Contents

263 Qualified Persons  591 264 Quarter  592 265 Rape and Sexual Violence  594 266 Rebels  597 267 Reciprocity  597 268 Reconnaissance Missions  598 269 Red Crescent  600 270 Red Cross  600 271 Red Crystal  600 272 Red Lion and Sun  600 273 Red Shield of David  600 274 Refugee Law  600 275 Refugees  602 276 Regularly Constituted Courts  604 277 Release  606 278 Relief Societies  608 279 Religious Convictions and Practices  609 280 Religious Personnel  612 281 Removal of Tissue or Organs  614 282 Reparations  616 283 Repatriation  619 284 Repatriation, Unjustified Delay of  620 285 Reprisals against Civilians  621 286 Requisitions  626 287 Retention  627 288 Review Conference  627 289 Right to Leave  629 290 Rules of Engagement  630 291 Ruses of War  631 292 Saboteurs  633 293 Safe Area  635 294 Saint Petersburg Declaration (1868)  635 295 Secret Detention  636 296 Security Corridors  636 297 Security Detention  636 298 Security Zones  636 299 Serious Violations of the Laws and Customs of War  636 300 Seriously Endangering the Physical or Mental Health or Integrity of Protected Persons  640 301 Sexual Violence  643

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302 Shipwrecked  643 303 Sick-Bays  644 304 Siege  645 305 Signal  648 306 Slavery  649 307 Small Arms and Light Weapons  651 308 Sniping  652 309 Solferino  653 310 Special Agreements  653 311 Specially Protected Zones  655 312 Spies  656 313 Superior Responsibility  659 314 Starvation  659 315 State Responsibility  661 316 Statelessness  664 317 Statutory Limitations  668 318 Summary Proceedings  669 319 Superfluous Injury and Unnecessary Suffering  669 320 Superior Orders, Defence of  672 321 Targeted Killing  675 322 Taxation  678 323 Terror, Spreading of  680 324 Terrorism (ihl)  680 325 Terrorism (International Law)  683 326 Terrorist Organizations  684 327 Torture  688 328 Toxin Weapons  690 329 Trade  690 330 Transfer by the Occupying Power of its Own Population  692 331 Transitional Justice  694 332 Translation  697 333 Transnational Armed Conflict  699 334 Truth Commissions  701 335 UN Protected Areas  703 336 Unexploded Ordnances  703 337 Universal Jurisdiction  703 338 Unlawful Combatants  703 339 Unmanned Aerial Vehicles (uavs)  703 340 Unprivileged Combatants  703 341 Usufruct  703

Contents

342 War Correspondents  703 343 War Crimes  704 344 War on Terror  706 345 Warships  706 346 Wilful Killing and Murder  707 347 Wilfully Causing Great Suffering or Serious Injury to Body or Health  709 348 Wilfully Depriving a Protected Person of the Rights of Fair and Regular Trial  711 349 Women  713 350 Workers  715 351 Wounded and Sick  717

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Foreword: ihl in a Time of Crisis – Back to the Basics? Guido Acquaviva* ihl in Perspective: Kriegsraison vs. Humanitarian Feelings? In 405 BC, during the Peloponnesian war, the Spartan admiral Lysander attacks the strategic city of Lampsacus. His forces manage to capture three thousand enemy fighters, Athenians and allied forces – including the Athenian General Philocles – in the legendary Battle of Aegospotami, thus effectively bringing to a close “a war which, in length, and the incredible variety of its incidents and fortunes, surpassed all its predecessors”.1 Lysander gathers the allies in an assembly and asks them to deliberate on how the prisoners should be treated. Since the Athenians had decreed to cut off the right hand of every man taken alive – and upon the orders of Philocles himself, had thrown overboard the crews of two triremes captured in ­combat – the Spartans are clearly not well-disposed to humane treatment. Probably tired of what must have appeared an endless conflict, and upon hearing many other stories of Athenian atrocities, the assembly resolves to put to death all prisoners. As to Philocles, Lysander first asks him what he deserves to suffer for having prompted barbarous practices towards other Greeks, and then has his throat slit. Plutarch suggests that the assembly declaring the Athenians guilty should be understood as a sort of tribunal, and he reports that the Athenian prisoner of war was actually asked, “what punishment he thought he deserved for having advised his fellow-countrymen to treat the Greeks so outrageously”. Before being led to his execution, Philocles despondently advises Lysander not to play the prosecutor in a case where there was no judge.2

* Deputy Registrar, Kosovo Specialist Chambers. The views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers. 1 Plutarch, Lysander, 11.6–11.7. 2 Xenophon, Hellenica, Book 2, Chapter 1, Sections 31–32; Plutarch, Lysander, 13. Even earlier, sovereigns considered the merits of humanitarian protection when capturing enemy cities. See for instance H. Abtahi, Reflections on the Ambiguous Universality of Human Rights: Cyrus the Grea’s Proclamation as a Challenge to the Athenian Democracy’s Perceived Monopoly on Human Rights, in Abtahi and Boas, Dynamics of International Criminal Justice (2006).

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In the early hours of 1 November 1911, Giulio Gavotti, a 29-year old Italian lieutenant stationed in Libya during the Italian-Turkish war, flies off towards the oasis of Ain Zara on his Etrich Taube monoplane aircraft. He is determined, as he intimates in a letter to his father, to make history. When he is about one kilometre from his objective, he spots two encampments, which he describes as “Arab tents”. While still controlling the craft with one hand, Gavotti pulls out a leather box, unties the knot securing its lid, and carefully pulls out one orangesized bomb, placing it on his lap. Having triggered the detonator, he throws the bomb outside the airplane with his right hand just before reaching the two camps, aiming at the bigger of the two. He follows the trajectory for a few seconds. The bomb disappears and Gavotti finally sees a darkish puff in the midst of the smaller camp. He carries out two more strikes with as many explosive devices, with no discernible additional effect. Content with having achieved his objective, he flies back, thus bringing to a close the first airplane bombing in human history.3 Guernica, Coventry, Hamburg, and Hiroshima would follow. The “trial” of Philocles has been followed throughout history by countless attempts to secure punishment for individuals involved in breaches of the standards and laws related to armed conflict and to humanitarian ­protection – from Peter von Hagenbach and Napoleon Bonaparte pertubateur du repos du monde to Henry Wirtz, Harry “Breaker” Morant, Hermann Goering, William ­Calley, Ratko Mladić, Charles Taylor and many others. Gavotti’s “historical” deeds, needless to say, were never considered for punishment. It is maybe only in the last seventy years – or perhaps just since Antonio Cassese presided over the Tadić Jurisdiction Decision for the icty Appeals Chamber in 1995 – that we have attempted to answer the question impulsively but poignantly posed by Philocles at the end of the fifth century BC: what is the basis for the right to adjudicate violations of the laws of war by others? Principle of distinction; targeting and conduct of hostilities; treatment of those hors de combat and punishment for serious violations of the laws of war: areas (under-)regulated over the past centuries with the results we constantly witness, leaving us often disheartened. The law of war and, even before that, the ethics of how to wage war and react to violations appear to be intrinsic deep-seated needs of most of humankind, somehow counterbalancing the impulse to exploit ingenuity and technical knowledge to gain military advantage. Several other factors are at play, of course, and in a world where combatants, civilians, and terrorists vie for the 3 A brief account of the events in English is contained in T. Hippler, Bombing the People: ­Giulio Douhet and the Foundations of Air-Power Strategy (2013), p. 1.

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attention of the public, and increasingly of lawyers, States and other groups often put forward diverging interests and views, and therefore do not aspire to clear and practical concepts. While discussions on the origins and development of ihl remain current, a consistent theme through the centuries is the tension inherent in establishing rules aimed at regulating the ever-evolving ability to inflict harm and suffering on fellow humans: technological advance pursued through incalculable resources poured into the development of warfare is to be governed by constantly aging principles and rules. Although it might not be completely accurate to state that the law of war is always one generation late in respect of novel technologies and new brands of warfare, from indiscriminate bombings to suicide bombers, the constant question is: what exactly should be regulated, and how? If even a small truck or a suicide vest can be lethal weapons that “explode the limits of the law”,4 how are we to regulate such violations? Such questions become even more pressing with the advent of autonomous weapons and cyber-warfare, both in relation to “pure” cyberwar, and in its interaction with more traditional conflict mechanics. What happens, for instance, in terms of the regime applicable to the shipwrecked under Geneva Convention ii following a cyber-virus disabling the warship, or in relation to collateral casualties due to jamming gps signals, or – again – in terms of the ­responsibilities towards persons in occupied territories if their well-being (such as access to water and food) is left to completely automated mechanisms? How do internationally recognized protective emblems apply to cyberspace, for instance to servers of hospitals and of other critical civilian or cultural institutions? How is one to track and determine criminal responsibility? And, when considering breaches: how much value should courts and tribunals assign to open-source material gathered through the internet or to electronically ­generated conclusions?5 Frictions and doubts on the battlefield and in the offices of policy-makers do not stem – as is often assumed – from a clear-cut juxtaposition between a cold, rational mind striving for concessions in favour of military necessity on the one side, and warm, irrational feelings and lofty, protective principles on the other. In March 1945, Winston Churchill wrote a surprisingly honest 4 For the expression (though used in the wholly different context of Nazi mass crimes), see H. Arendt, Letter to Karl Jaspers of 17 August 1946, in H. Arendt, K. Jaspers, Correspondence, 1926–1969 (1992), p. 54. 5 icc, Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, Arrest Warrant, 15 August 2017, ICC-01/11-01/17-2 (referring to social media videos). See also (though not directly in connection to ihl violations) stl, Prosecutor v. Ayyash et al., Decision on Appeal by Counsel for Mr Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data Records, 28 July 2015, STL-11-01/T/AC/AR126.9 (referring to call data records).

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text (which he, however, officially withdrew a few days later, replacing it with milder words): [i]t seems to me that the moment has come when the question of bombing the German cities simply for the sake of increasing the terror, though under other pretexts, should be reviewed. Otherwise, we shall come into control of an utterly ruined land. […] The destruction of Dresden remains a serious query against the conduct of Allied bombing. […] I feel the need for more precise concentration upon military objectives, such as oil and communications behind the immediate battle-zone, rather than on mere acts of terror and wanton destruction, however impressive.6 Considerations of strategic relevance, in the broadest sense, at times inspire moderation from (increasingly) needless acts of violence, while various irrational pressures, stemming from sentiments of vengeance and self-­righteousness or even from the perceived need to appease a tired or anxious public, can ­instead choke restraint and fuel brutality. Rational thinking may often lead to a considered decision that actually respects the rules of warfare – though, of course, this is not always the case. Public moods or ill-formed advice not grounded in facts and dispassionate analysis, on the contrary, may persuade decision-makers to pursue acts of violence that fall beyond the realm of what is lawful and proper (while, again, public sentiments and expert advice can instead prompt vastly different actions in other circumstances). It is thus important to escape the false dichotomy of a Kriegsraison supposedly by definition in conflict with aspirational humanitarian feelings. The tensions in this context are much more complex and heterogeneous than our instincts may suggest, and trying to artificially simplify them is misleading. Lex Lata vs Lex Ferenda: Back to the Future with the Martens Clause? Where do the elucubrations by scholars and lawyers leave us? This volume provides a vast panoply of research and reflections that is valuable, arguably indispensable, for practitioners and academics alike. The editors have courageously chosen to tackle an array of topics covering substantive, procedural, and more abstract issues. Several of these entries show the challenges faced by ihl, and the significance of international judicial institutions being parts 6 C. Webster, N. Frankland, The Strategic Air Offensive against Germany 1939–1945, Vol. 3 (1961), p. 112.

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of a wider system that is having a significant impact on ihl as applied by military and civilian actors around the world, both at the policy level and “on the ground”. Others explore the ever-expanding contours of ihl, with, for instance, cyber-warfare and the growing preoccupation with environmental protection in times of armed conflict. Permeating these themes is the continued – and increasing – need for training in ihl, which, even amidst some resistance, fosters behavioural changes and reinforces the prohibition of certain types of conduct, together with continued icrc vigilance as well as ihl enforcement by international, regional, hybrid, and domestic institutions. In a mere couple of decades, a major shift has occurred in international relations and public opinion: when grave crimes are reported – as they more and more often are, in this age of information and 24/7 news cycles – one of the questions cried out is when and how can the suspects be brought to justice. We are witnessing a slow but decisive change in ethos: the assumption that serious violations of ihl ought to be at least investigated (with the aim of identifying perpetrators) by a growing network of domestic and supranational institutions.7 Such a belief is, all considering, a rather novel one, a notion that has not traditionally accompanied conflicts and violence in the past but which is, instead, taking vigorous root today due to the multifaceted – and still fragile – developments since the end of the Cold War. The accountability of States, groups, and individuals for violations thus becomes not merely part of the international discourse, but is expected to be consistently upheld in practice, on the battlefield, as well as in the offices far away from the field where policies are devised, implemented, and litigated. Not all, of course, is well in ihl development and enforcement. The tensions highlighted above and the tortuous historical paths that led us to the current stage of (under-)development of ihl, leave us here, with a lex lata that is deficient, constantly criticized, and manipulated, yet which nevertheless survives at the delicate intersection with war, human rights, law enforcement, and other areas. And with a strong pull for a persistent improvement of the plight of victims de lege ferenda, which on occasion enables certain actors – and at times single individuals – to expand protections and ensure some degree of certainty, while contending with pushbacks, doubts, and criticisms. We are increasingly hearing not just the plights of Lysander and Philocles, in other words, but also those of the victims, their families, and their communities, and the developing law should reflect this new ability to listen, and build upon, a diverse set of voices. 7 G. Acquaviva, ‘International Criminal Courts and Tribunals as Actors of General Deterrence? Perceptions and Misperceptions’, 96(895/896) irrc (2014), p. 784.

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Such reflections on the changing face of war and the applicable law make us therefore increasingly aware of the dire need to provide a modern reading and maybe a partially new significance to the all-important – though at times much maligned – Martens clause. The “principles of humanity” and the “dictates of public conscience”, which are applicable even when positive law has not yet “caught up” with new developments, require some deep reflection, a veritable soul-searching, within the international community, especially at a time of momentous changes in technology and ethos. Such soul-searching may be particularly challenging at a time when not only objective realities are often disputed by “alternate facts”, but also when wide differences of perspective and worldviews threaten the very notion that humankind ultimately does possess common principles of humanity and a recognizable shared public conscience. After all, if States, non-State actors, ngos, individuals, and other relevant actors are unable to agree on common and shared values, then ihl, which relies heavily on opinio juris and on a shared resolve to adhere to humanitarian protection standards, may be in danger of losing its ability to foster compliance and increase its effectiveness. ihl’s universal application is – must be – premised on some degree of common understanding in relation to the values and rules applicable to armed conflicts, and the ideals espoused by Martens in his formulation starkly illustrate that the ihl edifice, if it is to withstand, ought to be built on shared foundations. However one interprets the Martens clause, a fundamental question is how we understand, in a post-modern, splintered world, the expressions “humanity” and “public conscience”, for these are the foundations of any meaningful discourse on the protections due in all cases that are not explicitly covered by positive law. Humanitarian consciousness must be furthered even more carefully in a divided, yet connected, world.8 There are no easy solutions to this conundrum, but one can envision ways in which modern participatory trends and technology may be harnessed to achieve a better, more comprehensive and open “inclusive process of deliberation conducted at multiple levels in as

8 See, among others, the reflections and references in V. Bernard, ‘Tactics, Techniques, Tragedies: a Humanitarian Perspective on the Changing Face of War’, 97(900) irrc (2015), p. 959; Coming Soon…? A Reappraisal of the Legal and Ethical Implications of Autonomous Weapons Systems (aws) ahead of the First Meeting of the ccw Group of Governmental Experts on Lethal aws, in Questions of International Law, 31 October 2017, available at: http://www .qil-qdi.org/coming-soon-reappraisal-legal-ethical-implications-autonomous-weapons -systems-aws-ahead-first-meeting-ccw-group-governmental-experts-lethal-aws/.

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broad a ­community as possible”9 to implement this exercise of human intellect in moral and legal argument. Technology is often considered a risk to compliance with ihl because of the law’s struggle to keep up and match the former’s unforeseen (and unforeseeable) developments for strategy, tactics, yield, and striking capacity. However, new tools offered by technology should not be conceptualized always and necessarily as a risk, but also as a means to make us better able to truly listen to various voices and to enrich and improve our deliberative process. There are voices suggesting the use of modern technology to promote a better understanding of the needs and experiences coming from the whole network of subjects touched by armed conflict, so as to minimize the deficit of contribution to the laws of war (in a broad sense) from those who are often the most affected by conflicts. In fact, information networks and the admittedly primitive attempts to foster grass-roots movements through communication technologies, together with the ability to exchange information almost anywhere in the world, can provide a basis for comprehensive and inclusive debates on how to nurture a true conscience of humankind, at least in some areas. Technology could assist in developing a more shared appreciation of cultural diversity’s impact on the common understanding of the terms “humanity”, in both its connotations of “humankind” and “humanness”.10 A resolve to undertake such an attempt to ensure a proper deliberative process that is honestly participatory, and not manipulative, would go a long way towards dispelling the worst reservations about new technologies and challenges, giving new hope to these concepts. There are undoubtedly a lack of ­political will, ingrained old habits on how international law develops, and longstanding practices and prejudices vis-à-vis non-State actors’ contributions to the development of the common law of humankind – not to mention recent biases against international law as a whole. Such impediments make it hard to create a potent counter-narrative in defence of civilians and other protected 9

10

See the reflections and further references in R. Sparrow, Ethics as a Source of Law: The Martens Clause and Autonomous Weapons, Humanitarian Law and Policy Blog, 14 November 2017, available at: http://blogs.icrc.org/law-and-policy/2017/11/14/ethics-source-law -martens-clause-autonomous-weapons/. While the English and French languages use the same word for these two concepts, other groups, educated for instance in the Russian language (where the expressions are, respectively, человечествo and человечность) have a more precise understanding of these two sides of the concept of “humanity”, and therefore paradoxically experience some difficulty in translating expressions such as “laws of humanity” and “crimes against humanity”.

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

Preface In 2013, we worked together in Pre-Trial Chamber ii of the icc. The proceedings we were involved in raised unique ihl issues, which were discussed for the first time before the icc and had generally been touched upon only in a limited manner by other international tribunals. During animated discussions with our colleagues, what struck us was the absence of a book that collected all major ihl notions in a single volume, accessible enough to quickly enable a variety of users to familiarise themselves with ihl issues in their daily work and sufficiently comprehensive to allow more demanding users to conduct further research. The issue came up again in 2015 when we were located at the opposite ends of the world: The Hague, where Dražan worked, and Phnom Penh, where Niccolò was based. Niccolò proposed to revive the idea of an ihl Companion. We decided to give it a serious try and drafted a detailed book project that we submitted to Brill-Nijhoff, but not before a thorough review by two trusted and experienced colleagues and scholars, Gilbert Bitti and Mohamed El Zeidy of the icc. Our gratitude goes out to them. To our surprise, Brill-Nijhoff accepted enthusiastically. In particular, Lindy Melman guided us through the process and supported us along the way. We quickly set up an Editorial Committee, a sophisticated designation for a group of friends and colleagues, working in the ihl field in different capacities and passionate enough to contribute to this huge undertaking. In their capacity as Editors, their help in identifying experts willing to contribute to the Companion and their assistance in reviewing several important entries was priceless. For this reason, they deserve to be mentioned: Antonio Coco, Sandra Krähenmann, and Emma Irving, young but already experienced scholars and academics working at the Universities of Oxford, Geneva, and Leiden, respectively; Valentina Cadelo, also an experienced academic and scholar working at the Geneva Academy of International Humanitarian Law and Human Rights as well as a humanitarian field expert currently stationed in Northern Africa; and Andrew Carswell and Jonathan Somer, who possess impressive field experience in engaging both State armed forces and non-State actors to foster respect for ihl on the battlefield. At a later stage, another colleague joined the team who would prove to be essential, Federica Pira, an Italian lawyer specialised in international criminal law and ihl. She first took up the position of Editorial Assistant and later of Editor, contributing immensely to managing the large amount of entries and essays, including different drafts, and all internal working documents that

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made this book possible. She rendered all entries consistent with the style and reference guidelines, and carried out substantive revisions of several entries and essays. In other words, she provided the project management skills that we missed. In parallel, an Advisory Board was constituted, made up of very experienced colleagues who provided invaluable advice and support in terms of policy decisions with regard to the preparation of the book. They are: Guido Acquaviva, Deputy Registrar of the Kosovo Specialist Chambers; Gilbert Bitti, Senior Legal Adviser to the Pre-Trial Division of the icc; Ivana Roagna, Senior Training Specialist at the UN Interregional Crime and Justice Research Institute and Consultant in human rights and criminal justice; Ken Roberts, Senior Legal Officer to the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia and Judge on the Roster of International Judges of the Kosovo Specialist Chambers; and Sylvia Steiner, former Presiding Judge of Trial Chamber iii of the icc and Senior Researcher at the Getulio Vargas Foundation Law School. We are grateful to them. None of this, of course, would have been possible without the assistance of the authors. We have been incredibly fortunate to benefit from the experience of those in senior positions and from the enthusiasm of those in earlier stages of their careers. All of them share, however, impressive legal skills driven by a great passion for ihl. We are truly indebted to them. The main idea behind the ihl Companion was to create a book to facilitate the practical application of ihl. This deceptively straightforward notion was the impetus for developing the book and inspired us throughout the various stages of the project. We, therefore, hope that the book will appeal to a wide audience interested in or confronted with ihl, ranging from professionals in humanitarian assistance and protection in the field, legal officers and advisers at the national and international level, trainers, academics, scholars, and students. We hope to provide them with a tool to start up or perform a specific task, and with a source for reflection and further research. In other words, a point of departure and finish, as the case may be. This Companion begins with a section consisting of seven essays that discuss, from different perspectives, the contemporary challenges to implementing ihl. We are sadly reminded of the need to discuss this topic every day in the media. The second section of the book comprises more than 260 entries covering the vast majority of ihl. All contributors have framed the entries with a view to explaining the essential legal parameters of a particular element of ihl, while keeping the need to discuss practical examples and, where relevant, historical considerations in mind. The starting point for the selection of the entries was, of course, the distinct notions arising from the Geneva Conventions, the

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Additional Protocols, and other ihl treaties. We have tried to dissect these instruments in order to discuss all relevant concepts and to connect them through cross-references in the text. However, the Companion is not limited to these matters. The reader will encounter entries going beyond the typical scope of ihl, such as those related to the protection of the natural environment and animals, and entries that, in addition to an ihl perspective, discuss relevant issues through the lens of human rights law, refugee law, international criminal law, the law on State responsibility, national law, and so on. We have also attempted to take into account certain concepts that have no direct foundation in ihl, but that are commonly used or generate wide interest in contemporary society. Accordingly, authors have written on, for instance, drones, economic warfare, cyber warfare, sniping, targeted killings, transitional justice, terrorism, and many other topics. All of this contributes, we hope, to making this book both relevant and original. Dražan dedicates this book to his wife, son, and daughter. Niccolò dedicates this book to his late father, to the person he met on the roofless bus, as well as to his closest friends: Adeline, Amir, Ania, Gerardo, Harshan, Lawrence, Maddalena, Marcela, Matthew, Sun, and Tomas. Dražan Djukić, Niccolò Pons

Abbreviations achpr achr ACmhpr api

apii

aps ccw

cescr eccc echr

ECtHR gci

gcii

gciii gciv gcs IACmHR IACtHR icc iccpr icescr

African Charter on Human and Peoples’ Rights American Convention on Human Rights African Commission on Human and Peoples’ Rights Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, alias Protocol i Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts, 8 June 1977, alias Protocol ii Additional Protocols to Geneva Convention i to iv The 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, alias Convention on Certain Conventional Weapons (1980) Committee on Economic, Social and Cultural Rights Extraordinary Chambers in the Courts of Cambodia Convention for the Protection of Human Rights and Fundamental Freedoms, alias European Convention on Human Rights European Court of Human Rights Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, alias Geneva ­Convention i Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, alias Geneva Convention ii Geneva Convention Relative to the Treatment of Prisoners of War, 12 ­August 1949, alias Geneva Convention iii Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, alias Geneva Convention iv Geneva Convention i to iv Inter-American Commission on Human Rights Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights

Abbreviations

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icj International Court of Justice icrc International Committee of the Red Cross ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia ihl International Humanitarian Law ihrl International Human Rights Law ilc International Law Commission imt International Military Tribunal imtfe International Military Tribunal for the Far East mict Mechanism for International Criminal Tribunals nato North Atlantic Treaty Organization ohchr Office of the High Commissioner for Human Rights pca Permanent Court of Arbitration pcij Permanent Court of International Justice san remo manual San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994 scsl Special Court for Sierra Leone stl Special Tribunal for Lebanon udhr Universal Declaration of Human Rights UN United Nations unga United Nations General Assembly unhcr United Nations High Commissioner for Refugees unsc United Nations Security Council unsg United Nations Secretary-General untaet United Nations Transitional Administration in East Timor vclt Vienna Convention on the Law of Treaties

Notes on Contributors Cécile Aptel Senior Legal Policy Advisor, United Nations High Commissioner for Human Rights; Associate Professor of International Law, Fletcher School of Law and Diplomacy Roberta Arnold Lecturer, University of Lucerne; Visiting Scholar, Franklin University Switzerland Harshan Athureliya Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of Cambodia Rogier Bartels Legal Officer, Chambers, International Criminal Court Céline Bauloz Senior Fellow, Global Migration Centre, Graduate Institute of International and Development Studies Chris Black Legal Officer for Judicial Matters, Special Tribunal for Lebanon Jeroen van den Boogaard Assistant Professor of Military Law, Netherlands Defence Academy Théo Boutruche Humanitarian Law and Policy Course Director, International Association of Professionals in Humanitarian Assistance and Protection Maya Brehm Advisor, Article 36 Valentina Cadelo Associate Legal Adviser, Middle East and North Africa Programme, International Commission of Jurists

Notes on Contributors

xxxiii

Lindsey Cameron Head of the Unit of Thematic Legal Advisers, Legal Division, International Committee of the Red Cross Lucia Carcano Lawyer; Student Assistant, Del Rosario University Andrew Carswell Armed Forces Delegate, International Committee of the Red Cross Stuart Casey-Maslen Honorary Professor, University of Pretoria Amir Čengić Legal Consultant Eleni Chaitidou Legal Officer, Chambers, International Criminal Court Vincent Chetail Professor of International Law, Graduate Institute of International and Development Studies Gabriella Citroni Professor of International Human Rights Law, University of Milano-Bicocca; Senior Legal Advisor, trial International Antonio Coco Departmental Lecturer in Law, Oxford University Alex Conte Senior Legal Adviser, International Commission of Jurists Geoffrey S. Corn Vinsen & Elkins Professor of Law, South Texas College of Law Houston; Lieutenant Colonel, U.S. Army (Retired) Maurice Cotter International Lawyer

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Notes on Contributors

Matteo Crippa Senior Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of Cambodia Matthew Cross Appeals Counsel, Office of the Prosecutor, International Criminal Court Eric David Professor Emeritus of International Law, Université Libre de Bruxelles Dražan Djukić Associate Legal Officer, Chambers, International Criminal Court George Dvaladze PhD Candidate, University of Geneva; Teaching Assistant, Geneva Academy of International Humanitarian Law and Human Rights Jorge Errandonea Senior Legal Officer, Inter-American Court of Human Rights Katharine Fortin Assistant Professor, Netherlands Institute of Human Rights, Utrecht University Gloria Gaggioli Assistant Professor, University of Geneva Daniela Gavshon Project Director, Transitional Justice, Public Interest Advocacy Centre Maddalena Ghezzi Legal Officer, Trial Chamber, Extraordinary Chambers in the Courts of Cambodia Gilles Giacca Research Associate, Oxford Institute for Ethics, Law and Armed Conflict Terry Gill Professor of Military Law, University of Amsterdam and Netherlands Defence Academy

Notes on Contributors

xxxv

Marcela Giraldo Judge, Colombian Special Jurisdiction for Peace (the author was a lawyer at the Inter-American Court of Human Rights at the time of writing the entries) Anne-Laurence Graf-Brugère Postdoctoral Research Fellow, Swiss Centre for Expertise in Human Rights Tomas Hamilton Senior Legal Consultant, Extraordinary Chambers in the Courts of Cambodia Marie-Laurence Hebert-Dolbec f.r.s.-f.n.r.s. Research Fellow; PhD Candidate, Université Libre de Bruxelles Ezequiel Heffes Thematic Legal Advisor, Geneva Call Iris van der Heijden Executive and Academic Assistant to the Secretary-General, Institut de Droit International; Consultant, United Nations High Commissioner for Refugees Robert Heinsch Associate Professor of International Law, Leiden University; Director of the Kalshoven-Gieskes Forum on International Humanitarian Law Alexandra Hofer Doctoral Researcher, Ghent Rolin-Jaequemyns International Law Institute, Ghent University Emma Irving Assistant Professor of Public International Law, Leiden University Chris Jenks Associate Professor of Law and Criminal Justice Clinic Director, smu Dedman School of Law Saeko Kawashima Attorney-at-Law, New York State Sunkyung Kim Staff Attorney, Ninth Circuit Court of Appeals

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Notes on Contributors

Jann K. Kleffner Professor of International Law and Head of the Centre for International and Operational Law, Swedish Defence University Robert Kolb Professor of Public International Law, University of Geneva Sandra Krähenmann Research Fellow, Geneva Academy of International Humanitarian Law and Human Rights Azra Kuci Associate Situation Analyst, Office of the Prosecutor, International Criminal Court Fauve Kurnadi Legal Adviser, Academic and Private Sector Engagement, International Humanitarian Law, Australian Red Cross Anastasia Kushleyko Regional Legal Adviser for Eastern Europe and Central Asia, International Committee of the Red Cross Etienne Kuster Academic Relations Adviser, International Committee of the Red Cross Louis G. Maresca Senior Legal Adviser, Legal Division, International Committee of the Red Cross Triestino Mariniello Senior Lecturer in Law, Edgehill University Tim McCormack Dean, University of Tasmania Law School; Professorial Fellow, Melbourne Law School; and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court Helen McDermott Research Associate, Individualisation of War Project, European University Institute; Visiting Scholar, Blavatnik School of Government, University of Oxford

Notes on Contributors

xxxvii

Brianne McGonigle Leyh Associate Professor, Netherlands Institute of Human Rights, Utrecht University Robert McLaughlin Professor of Military and Security Law and Director, Australian Centre for the Study of Armed Conflict and Society, University of New South Wales Canberra Sigrid Mehring Law Clerk, Regional Court, Frankfurt am Main Omar Mekky Regional Legal Coordinator for Middle East and North Africa, International Committee of the Red Cross Nils Melzer United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Professor of International Law, ­University of Glasgow; Human Rights Chair, Geneva Academy of International ­Humanitarian Law and Human Rights Gerardo Moloeznik Humanitarian Worker Marcos Pablo Moloeznik Professor of Political Science, University of Guadalajara Yasmin Naqvi Legal Officer, Immediate Office of the Registrar, International Residual Mechanism for Criminal Tribunals Volker Nerlich Legal Adviser, Appeals Division, International Criminal Court; Honorary Professor, Humboldt University of Berlin Ousman Njikam External Relations Officer, International Residual Mechanism for Criminal Tribunals Ellen Nohle International Humanitarian Law Worker

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Notes on Contributors

Ilya Nuzov Head, Eastern Europe-Central Asia Desk, International Federation for Human Rights Hector Olasolo Chair in International Law, Del Rosario University; Chairman, Ibero-American Institute of The Hague for Peace, Human Rights and International Justice; Director, Ibero-American Yearbook of International Criminal Law Laura M. Olson Director, Human Rights Program, The Carter Center Roger Phillips Senior Legal Consultant, Trial Chamber, Extraordinary Chambers in the Courts of Cambodia Maria Giovanna Pietropaolo Legal Advisor, International Humanitarian Law Resource Centre, Diakonia Giulia Pinzauti Assistant Professor of International Law, Leiden University Federica Pira Lawyer specialised in International Criminal Law and International Humanitarian Law Jelena Plamenac Senior International Humanitarian Law Expert Niccolò Pons Associate Legal Officer, Registry’s Chambers Legal Support Unit, Kosovo ­Specialist Chambers Elvina Pothelet PhD Candidate, University of Geneva; Teaching Assistant, Geneva Academy of International Humanitarian Law and Human Rights Alice Priddy Senior Researcher, Geneva Academy of International Humanitarian Law and Human Rights

Notes on Contributors

xxxix

Noëlle Quénivet Associate Professor of International Law, University of the West of England Anne Quintin Lecturer, Paris School of International Affairs (Sciences Po); Doctoral Student, University of Geneva Michael Ramsden Associate Professor, Chinese University of Hong Kong; 25 Bedford Row Aurélie Roche-Mair Programme and Office Director, icc and icl Programme, International Bar Association; PhD Candidate, Netherlands Institute of Human Rights and the Montaigne Centre, Utrecht University Tom Ruys Professor of International Law, Ghent Rolin-Jaequemyns International Law ­Institute, Ghent University Ania Salinas Legal Officer, Chambers, International Criminal Court Dan Saxon Assistant Professor of International Law, Leiden University College Damien Scalia Professor, Faculty of Law and Criminology, Université Libre de Bruxelles Ilia Siatitsa Researcher, Geneva Academy of International Humanitarian Law and Human Rights Jonathan Somer Founder, Persona Grata Consulting; Interim Senior Legal Adviser, Canadian Red Cross (2017–2018) Alessandra Spadaro PhD Candidate, Graduate Institute of International and Development Studies

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Notes on Contributors

Heike Spieker Deputy Director, International Cooperation and National Emergency Services Division, German Red Cross; Senior Lecturer, University College Dublin Jacopo Terrosi Analysis Assistant, Office of the Prosecutor, International Criminal Court Kinga Tibori-Szabó Legal Officer, Kosovo Specialist Chambers Vito Todeschini Associate Legal Adviser, Middle East and North Africa Programme, International Commission of Jurists Camilla van der Walt Judicial Affairs Officer, Rule of Law Section, United Nations Mission in South Sudan Nathalie Weizmann Senior Legal Officer, United Nations Office for the Coordination of Humanitarian Affairs

Section A Essays

∵

Promoting the Teaching of ihl in Universities: Overview, Successes, and Challenges of the icrc’s Approach Etienne Kuster* Abstract According to the four GCs of 1949,1 States have to include the study of those texts within their programmes of military and civilian instruction. What role do universities play in that regard? How has the icrc supported the teaching of ihl during the past decades? What are the results achieved and the challenges faced? Which recommendations and questions can be formulated for years ahead? This piece endeavours to provide an overview of the icrc’s experience in promoting the teaching of ihl in academia worldwide.

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

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_002

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Kuster

lawless, anarchic and archaic form of human activity, namely war? […] Even those who understand ihl can choose to violate it. Teaching ihl is therefore always, even at universities, a question not only of training but also of education.2 1 Introduction For the vast majority of people, the icrc is associated with relief and not academic work. More specifically, the icrc is mostly known for the humanitarian operations aiming at alleviating human suffering in armed conflict it has conducted for over a century.3 Nobel Peace Prizes attributed to the organization, its members and partners, have been mostly in recognition of its outstanding humanitarian efforts assisting victims during armed conflicts.4 However, the dissemination of ihl to the public in general, and in universities in particular, has constituted one of the first activities of the icrc after its birth in 1863,5 and  continued for the next 40 years or so.6 Indeed, in the view of Gustave Moynier: La propagande en faveur des principes de la Convention de Genève ne comporte pas seulement leur vulgarisation au sein des armées et un 2 M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part iii (2011), at 2. 3 P. Boissier, History of the International Committee of the Red Cross, From Solferino to ­Tsushima, Vol. i (1985); A. Durand, History of the International Committee of the Red Cross, From Sarajevo to Hiroshima, Vol. ii (1984); C. Rey-Schyrr, History of the International Committee of the Red Cross, From Yalta to Dien Bien Phu, Vol. iii (2007); F. Bugnion, F. P ­ erret, ­History of the International Committee of the Red Cross, From Budapest to Saigon, ­1956–1965, Vol. iv (2009); J.-L. Blondel, History of the International Committee of the Red Cross, From Saigon to Ho Chi Minh City, Vol. v (2016). 4 See: https://www.nobelprize.org/nobel_prizes/peace/laureates/1917/press.html; https:// www.nobelprize.org/nobel_prizes/peace/laureates/1963/press.html#not_9. 5 In 1869, the icrc published its first “Bulletin International des Sociétés de Croix-Rouge”, which provided information on the state of ratification of the 1864 Geneva Convention to large audiences, including academics. The first edition reported also about the lecture given by Professor Eugène Cauchy, mandated by the icrc, about the 1864 and 1868 Geneva Conventions at the Institut de France. 6 While the icrc sent some delegates to observe the application of the 1864 Geneva Convention in conflicts, such as the Franco-Prussian war of 1870, the core of its activity, until World War i in 1914, consisted of coordinating the Red Cross National Societies in various countries through the Bulletin International des Sociétés de Croix-Rouge and driving ihl codification through various conferences leading to new conventions. See: Boissier, supra note 3.

Promoting the Teaching of ihl in Universities

5

enseignement populaire; elle doit aussi pénétrer dans le monde des ­jurisconsultes qui s’occupent du droit international, et dont les opinions, à défaut des lois positives, consacrent les usages que les nations civilisées se croient tenues de respecter.7 Even after the icrc took a more prominent operational role in armed conflicts, through its extensive work during wwi, it maintained and even increased its activities in the field of dissemination of ihl in universities through courses and publications. For instance, in 1922, a 12-lesson course dedicated to the icrc and ihl was given by its delegate Paul Des Gouttes at the Institut des Hautes Etudes Internationales, while the “Bulletin International des Sociétés de Croix-Rouge” (today known as the International Review of the Red Cross) has continued to disseminate ihl and humanitarian action-related information on a regular basis since its first publication in 1869.8 More recently in 2017, the icrc interacted in the field of ihl, humanitarian policy and action with over 900 universities in 120 countries.9 Among those universities it is estimated that at least two thirds teach ihl in one way or the

7 cicr, ‘Bulletin International des Sociétés de Secours aux Militaires Blessés’, No. 1 (1869), at 8. 8 The ‘Bulletin International des Sociétés de Croix-Rouge’ has since been renamed International Review of the Red Cross and has become a leading peer-reviewed academic journal in the debate on ihl, humanitarian policy and action. See infra note 127. 9 Internal reports, icrc, 2018. The nature of such interactions varies from annual visits to deans of faculties, delivery of ihl publications to the university library, dissemination ­sessions on ihl and/or the icrc, co-organization of conferences, ihl training and/or ­students’ competitions, research partnerships, etc. The list of concerned countries i­ncludes, by continent and in no particular order: Ivory Coast, Burkina Faso, Ghana, Togo, Benin,  ­Algeria, Senegal, Cabo Verde, Gambia, Guinea, Liberia, Libya, Mauritania, Mali, Niger, Nigeria, Morocco, Mauritania, Tunisia, Madagascar, Comoros, Mauritius, B ­ urundi, Central A ­ frican Republic, Democratic Republic of Congo, Zimbabwe, Mozambique, Zambia, Malawi, L­ iberia, Namibia, Swaziland, Lesotho, Botswana, South Africa, ­Rwanda, Cameroon, Gabon, CongoBrazzaville, Equatorial Guinea, Chad, Eritrea, ­Ethiopia, ­Kenya, Tanzania, Republic of South Sudan, Sudan, Uganda, Argentina, Haiti, Dominican Republic, Peru, Bolivia, E ­ cuador, ­Mexico, some caricom countries, Costa Rica, Cuba, Panama, United States of A ­ merica,  Canada, Chili, Venezuela, Colombia, France, Turkey, United Kingdom, Czech Republic, Slovenia, ­Poland, Hungary, Serbia, Macedonia, ­Croatia, R ­ omania, Bosnia and Herzegovina, Italy, Switzerland, Belgium, Armenia, A ­ zerbaijan, Georgia, Kyrgyzstan, Russian Federation, Uzbekistan, Kazakhstan, Turkmenistan, ­Tajikistan, Egypt, Iran, Iraq, Israel & Occupied Territories, Jordan, Kuwait, Oman, Saudi Arabia, Bahrain, Qatar, United Arab Emirates, Lebanon, Syria, Yemen, Bangladesh, India, Afghanistan, Nepal, Pakistan, Sri Lanka, Thailand, ­Vietnam, Laos, Cambodia, China, Republic of Korea, Democratic Republic of Korea, Indonesia, ­Japan, ­Malaysia, Myanmar, the Philippines, Australia, New Zealand, Papua New Guinea.

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other.10 How have we come to this result? What has been the role of the icrc in that regard? And what results can such an achievement yield in today’s world? With which challenges? This piece aims to provide answers to these questions, although certainly not in an exhaustive manner. Drawing from several other articles and publications on the topic, it attempts to define the legal and practical extent of the ihl dissemination obligation set forth in the GCs, their APs11 and in customary ihl. Then, it explores why universities are key actors to fulfil this obligation through their teaching. It also discusses how such teaching has increased in universities over the past decades, looking at selected elements, such as methodology and tools, and the role of the icrc. After analysing the contribution of such efforts to ihl implementation, it concludes by presenting a list of practical challenges that ihl teaching in universities faces. For each challenge, the article proposes recommendations to maintain and develop ihl teaching in academia in years ahead. For the sake of focusing on the topic at stake, this article will deliberately refrain from analysing the obligation to disseminate ihl within armed forces and its consequences, despite the fact that a certain number of academic centres disseminating ihl are joint civilian-military structures, a model which is all the more frequent nowadays.12 Likewise, this piece will not analyse the dissemination of ihl carried out at primary and secondary educational levels, which is conducted through different pedagogical approaches and tools than for tertiary level education. Lastly, it will not address other aspects related to ihl and universities, such as academic research or outreach events, which will be discussed in another upcoming piece from this author.

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12

This estimate is based on icrc delegations’ annual planning and monitoring in 2017, as reflected in internal documents. Following it, more than two thirds of the 75 icrc delegations had interactions related to ihl dissemination with their partner universities in 2017. While there are no proper estimates to compare the current situation to that pre-existing the systematic engagement of the icrc with academia in the 1980s, one could rely on the description made by Françoise Hampson writing that “[i]n the late 1970s there was a dearth of contemporary materials for students to read” to conclude that ihl has probably never been taught as much as today in academia. See: F. Hampson, ‘Teaching the Law of Armed Conflict’, 5(1) Essex Human Rights Review (July 2008), at 6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977), 1125 unts 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of ­Victims of Non-International Armed Conflicts (1977), 1125 unts 609 (all entered into force on 7 December 1978). See for instance: the Asia-Pacific Centre for Military law or the Stockton Center for the Study of International Law at the U.S. Naval War College.

Promoting the Teaching of ihl in Universities

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7

The Obligation to Disseminate ihl in Programmes of Civil Instruction

The teaching of ihl in universities is rooted in the general obligation of dissemination to the civilian population mentioned in the 1949 GCs: [t]he High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, of civil instruction, so that the principles thereof may become known to the entire population […].13 The words “if possible” should not be considered as rendering the implementation of ihl dissemination programmes for the civilian population optional for States. As established by historical records of preparatory work for the Conventions, it is rather a way to accommodate the limitation of competences of certain federal States as concerns the content of education programmes.14 ­Additionally, api spells out that [t]he High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, […] to encourage the study thereof by the civilian population, so that those instruments may become known […] to the civilian population.15 apii is less detailed as regards the obligation to disseminate its content, limiting itself to state that “[t]his Protocol shall be disseminated as widely as possible”.16 The obligation to disseminate ihl within the civilian population can also be said to have reached customary nature, as illustrated by Rule 143 of the icrc Customary ihl Study: “States must encourage the teaching of international humanitarian law to the civilian population”.17 While the obligation to disseminate ihl in universities is not per se mentioned in those various provisions, it can be derived from their contents, which 13 Articles 47, 48, 127, 144 common to the GCs. 14 2016 icrc Commentary gci, para. 2757. 15 Article 83(1) api. 16 Article 19 APII. 17 Rule 143 icrc Customary ihl Study.

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

18 See also: 2016 icrc Commentary gci, para. 2770. 19 Ibid, para. 2778. 20 Ibid, para. 2769. 21 Ibid, paras. 2764–2766. 22 1952 icrc Commentary gci, at 348. 23 2016 icrc Commentary gci, para. 2772. 24 See: notes 22, 23.

Promoting the Teaching of ihl in Universities

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be read closely with the obligation to respect and ensure respect that are clearly spelled out in common Article 1 of the four GCs.25 While the term dissemination is used to define the legal obligation existing in the GCs and their APs, teaching is the term mostly used in common language to define any activity aimed at passing on knowledge between ­individuals, especially in any academic context. For the sake of this article, dissemination will be used to refer to the legally-grounded general effort to provide knowledge on ihl through programmes of civil instructions. Teaching will be used to address the specific aspects of this effort in academia, such as course structure, methodology and pedagogical tools. Beyond the mere legal obligation on which it rests, teaching ihl in universities also represents a crucial asset in a world prompt to dehumanize enemy individuals and nations. It allows students reflecting on their own perception and understanding of the compromise that ihl seeks to achieve between ­humanity and military necessity. Through the dilemmas inherent in this body of law, the study of ihl by generations of students provides a crucial reminder to society that the reality of armed conflicts is never black or white, but, as observed in the natural environment, diverse, nuanced, and subtle. 3

The Contribution of Universities to ihl Dissemination and Implementation

As seen above, while insisting on the obligation to include dissemination of its content in programmes of civilian instruction, ihl leaves the responsibility to States, or even to provincial entities in certain cases, to identify the means to fulfil their obligation. Hence, it is proposed here to look at contemporary practice, rather than at legal terminology, in order to determine the role of universities in disseminating ihl. There are multiple actors contributing to the dissemination of ihl within the civilian population in each country: primary and secondary schools, universities and specialized academic centres, National Red Cross and Red ­Crescent Societies, the icrc and the International Federation of the Red Cross

25

For further details on the extent of this double obligation, see: K. Dörmann, J. Serralvo, ‘Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations’, 96(895/896) irrc (2014), at 707; See also: K. Jastram, A. Quintin, ‘Prevention in Practice: Teaching ihl in US legal Academia’, 96(895/896) irrc (2014), at 987.

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and Red Crescent, the media, governmental agencies, civil society organizations and associations, and various individuals in their private capacity. However, when it comes to universities, a few features lead one consider that they play a crucial role in the dissemination of ihl. First and foremost, due to the nature of ihl as a field of public international law, universities are probably best placed to teach it. Indeed, the role of universities is generally identified as pursuing academic excellence in teaching, learning, and researching various scientific fields, and to empowering generations of students to make a positive difference in the world.26 The next sub-sections seek to explore what makes universities crucial actors for ihl teaching. Experimenting with New Pedagogical Approaches by Pursuing Excellence The strong pedagogic component, along with the pursuit of academic excellence, which is inherent to academic institutions’ missions, makes them key agents of ihl dissemination. In addition, while law in general is also studied in secondary level educational institutions, it is normally addressed more indepth at the academic level. Hence, universities are probably the best placed actors to disseminate ihl to the civilian population. It can be objected that ihl is a relatively simple and intuitive field of law, which does not necessarily need the competence of an academic teacher to be taught in an effective way to the civilian population. However, while this is true for substantial rules of ihl (for instance, that it is prohibited to attack those who do not or not anymore directly participate in hostilities or that means and methods of warfare are not unlimited),27 it is not for numerous others (e.g. classification of armed conflicts, scope of application of ihl, interactions with other bodies of law, such as ihrl, etc.). Furthermore, the fact that universities are best placed as ihl dissemination actors does not mean that others do not play a crucial role in that regard. For instance, primary and secondary schools or Red Cross and Red Crescent National Societies d­ isseminate ihl rules to a larger range of the civilian population, but through a more accessible 3.1

26

27

See for instance how some leading universities on various continents present their ­respective missions: http://www.harvard.edu/about-harvard; https://www.cam.ac.uk/ about-the-university/how-the-university-and-colleges-work/the-universitys-mission -and-core-values; http://tec.mx/en/tec-diference/formation-transforms-lives; http:// www.english.paris-sorbonne.fr/; http://www.uct.ac.za/main/about/history; http://www .tsinghua.edu.cn/publish/newthuen/newthuen_cnt/about-th/about-1.html; http://www .msu.ru/en/info/history.html. Common Article 3 GCs; Rule 6 icrc Customary ihl Study; Article 35(1) api; Article 22 Convention (iv) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (1907).

Promoting the Teaching of ihl in Universities

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pedagogical approach. Moreover, military schools disseminate ihl rules to key actors of armed conflicts, but through a more pragmatic approach. While working in a complementary way with other dissemination actors, universities can certainly play the role of a driving force in the ihl dissemination field, constantly seeking to innovate and improve teaching methodologies and tools to equip their students with key knowledge and skills allowing them to make a difference in the implementation of the rules in today’s world. As an example, nalsar University in India was among the first to set up a distance learning course of ihl.28 In 1989, the Jean-Pictet Competition in ihl, although not organized by a university as such, but a flagship training event for students, brought huge innovation in the field of teaching by introducing role-playing as a new way to compete on ihl.29 Today, a comparable innovation can be seen with the Syrian Virtual University, which is developing a Master in ihl that will hopefully allow generations of students affected by armed conflict to have the possibility to study its rules.30 Beyond this crucial pedagogical aspect, as elaborated below in greater detail, the capability of universities to equip future generations with professional knowledge make them especially ­suited to ensure that their courses are effective to implement ihl in the mid- to long-term. 3.2 Educating Current and Future Decision-Makers Universities provide an important contribution to ihl implementation by equipping future professionals with ihl knowledge that will directly support their work: law schools train future judges, prosecutors and attorneys, who provide an essential contribution to the work of domestic, internationalised, or purely international courts prosecuting ihl violations, as well as ­regional ­human rights courts dealing increasingly with ihl issues. They also train future legal advisers to governments, international organizations and ngos, who will draft and review policies, opinion papers and contribute to shape the debate on emerging humanitarian issues. Schools of political science and international relations, as well as schools of diplomacy, provide future diplomats with ihl knowledge, which can support their efforts when conducting humanitarian negotiations. In certain countries, such as the United States of 28 See: https://www.nalsar.ac.in/admission-notification-p-g-diploma-courses-2017-18. 29 C. Lanord, M. Deyra, ‘Dissemination in Academic Circles: the Jean Pictet Competition’, 35(306) irrc (1995), at 341–346; Listen also to C. Lanord, Presentation and History of the Competition, Commemorating Jean Pictet by Keeping his Legacy Alive, available at: https://www.icrc.org/en/document/commemorating-jean-pictet-keeping-his-legacy -alive. 30 For more information on the Syrian Virtual University, see: https://www.svuonline.org/.

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America or ­Canada, military law schools offer ihl courses to army officers, so that they can advise their commanders on operational matters accordingly and in compliance with the GCs and the APs.31 More generally, national administration schools, faculties of political science and institutes of international/­ diplomatic relations educate future politicians, ministers and heads of States, making universities all the more relevant hubs for ihl dissemination. In addition, renowned university professors often advise governments on ihl;32 they serve as members of National Committees on ihl implementation;33 they form part of or advise high-level jurisdictions dealing with ihl issues, such as the icty or the icc.34 Professors also serve as judges or amici curiae in international and special tribunals prosecuting ihl violations.35 In recent years, universities, such as the Geneva Academy of International Humanitarian Law and Human Rights (“Geneva Academy”), have also set up executive education programmes on ihl and related matters to train various professionals working in governments, the humanitarian field, or the media.36 Such training responds to an increased demand for practical knowledge and skills that can directly be used in today’s professional environment. Executive education programmes take the form of on-site and online courses/MOOC, seminars/webinars and conferences that mix academic and non-academic (field) experts to address contemporary and practical humanitarian issues by referring to the existing ihl framework.37 As a result, humanitarian professionals working in situations of armed conflicts can rely on the existing ­legal framework to e.g. negotiate access to civilian populations in need or draft States’ policies compliant with ihl when it comes to conduct of hostilities or detention-related matters. In that regard, universities create a link between

31

R.P. DiMeglio, ‘Training Army Judge Advocates to Advise Commanders as Operational Law Attorneys’, 54(3) Boston College Law Review (2013), at 1185 ff. See also: http://www .forces.gc.ca/en/about-reports-pubs-military-law-annual-2016-17/ch-1-who-we-are.page. 32 See for instance: https://www.geneva-academy.ch/masters/study-with-us/faculty/detail/ 45-robert-kolb. 33 Table of National Committees and other National Bodies on International Humanitarian Law, icrc, available at: https://www.icrc.org/en/document/table-national-committees -and-other-national-bodies-international-humanitarian-law. 34 See for instance: https://en.wikipedia.org/wiki/Antonio_Cassese; http://opiniojuris.org/ 2010/03/03/tim-mccormack-appointed-icc-advisor/. 35 See for instance: https://www1.essex.ac.uk/hrc/news_and_seminars/newsEvent.aspx?e_id =6586. 36 See: https://www.geneva-academy.ch/executive-education/by-theme. 37 See for instance: the Violence against HealthCare mooc on the coursera platform: https://www.coursera.org/learn/violence-against-healthcare.

Promoting the Teaching of ihl in Universities

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academic knowledge and field reality, which is crucial to favour ihl implementation in the daily reality of field work. A particular example of such professionalization of ihl studies can be seen in the increased number of field simulations on humanitarian action conducted by universities such as Harvard in the US or the Institut Bioforce in France, notwithstanding the numerous fictitious simulations and moot courts run by Universities, such as Hong Kong University (in collaboration with the Hong Kong Red Cross and the icrc) with the support of professional judges.38 Their capacity to innovate and train future decision-makers make universities important agents for ihl dissemination. They can also empower civil society and trigger IHL-related discussions by bringing different actors to the table. Supporting Civil Society and Facilitating IHL-Related Dialogue and Dissemination Universities often play the role of civil society fora, where knowledge and ideas can be shared and debated. In certain institutions, law clinics run by professors allow students to put their knowledge in practice by serving ngos and civil society organizations on a pro bono basis. University professors also serve in various high-level functions at the UN39 and as board members of ngos40 (advising them on the best way to fulfil their respective mandates in favour of the civilian population). They also create associations that undertake ihl dissemination and humanitarian work. As an example, associations composed of former ihl students have been created in West Africa to disseminate ihl within civil society.41 In Mali, ihl professors have established an association devoted to ihl dissemination and humanitarian aid.42 In this sense universities are among the few ihl dissemination actors that offer simultaneously a direct link to government and to civil society circles. Hence, thanks to the academic freedom space they offer, they facilitate IHL-related connections and dialogue between governmental and a nongovernmental spheres and, through 3.3

38 See: https://hhi.harvard.edu/education/workshops/hric (Harvard ­Humanitarian Initiative); http://humanitaire.institutbioforce.fr/fr/institut/visite-guid%C3%A9e (Institut Bioforce); https://en.wikipedia.org/wiki/Hong_Kong_Red_Cross_International_Humani tarian_Law_Moot (Hong Kong University). 39 See for instance: http://graduateinstitute.ch/home/study/academicdepartments/ international-law/people/resources/prof-clapham.html. 40 See for instance: https://genevacall.org/team/10130/. 41 The association is named RASAPRES and dedicates its efforts to the promotion of ihl and humanitarian action: https://www.facebook.com/pg/Rasapres-Dih-Dh-107365648931 2531/about/?ref=page_internal. 42 Association pour la Promotion et la Diffusion du Droit International Humanitaire, http:// www.apddih.com/.

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conferences, open courses, and papers, are able to provide the general public with ihl dissemination and different perspectives thereof.43 In that regard, the role of universities as learning hubs with a potentially large outreach deserves to be explored. 3.4 Potentially Reaching Out to Large Audiences with Quality Knowledge Beyond mere ihl teaching, the outreach of universities towards the civilian population can probably exceed that of other teaching institutions, by virtue of their public education mission and of their connections with the media seeking academic expertise to support news analysis. Indeed, in essence, universities are learning hubs combining large outreach and quality knowledge capacities. This puts them generally in a good position to disseminate quality ihl knowledge to a large number of individuals within the civilian population. Nevertheless, such potential is closely linked to the question of access to tertiary education for people in general, which varies significantly from one region to the other.44 Traditionally, large-scale outreach ihl dissemination offered by universities can take the shape of on-site open ihl conferences or courses in universities,45 but also web-livestreamed discussion panels and academic events.46 More recently, ihl dissemination has taken another turn with the emergence of massive open online courses (moocs), which appear to be very powerful dissemination tools combining massive outreach and academic excellence.47 Universities can also make ihl knowledge accessible to a larger public through interviews of academic experts in media.48 Last, but not least, universities make publicly available (through their public libraries and online) numerous research and briefing papers and publications, which contribute to make

43

See for instance: the Geneva Academy ihl Talks on: https://www.youtube.com/channel/ UCFOlAB1zF8jMZkzHqGFipvg. 44 See infra Chart Enrolment in Tertiary Education, Our World in Data, https://ourworldindata .org/tertiary-education/. 45 See for instance: https://www.dal.ca/news/events/2017/09/29/13th_annual_international _humanitarian_law_conference__protection_of_children_in_war.html. 46 See supra note 43. 47 See for instance: https://www.edx.org/course/international-humanitarian-law-louvainx -louv16x-0 (Université de Louvain); https://hhi.harvard.edu/elearning/core-concepts -international-humanitarian-law (Harvard Humanitarian Initiative). 48 See for instance: https://www.youtube.com/watch?v=JM7yDf6gSRY; http://www .aljazeera.com/indepth/opinion/trigger-war-korean-peninsula-170929163406964 .html.

Promoting the Teaching of ihl in Universities

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­quality IHL-related knowledge accessible to a larger audience.49 Through all these channels, universities can potentially play an important role to disseminate the law to large parts of the civilian population by providing free access to quality ihl knowledge. In practice though, it appears that, apart from interviews of ihl experts in mass media, knowledge made available by universities seems rather used by specialized audiences, such as experts, researchers and lecturers themselves, civil society, or postgraduate students. Hence, while universities remain best placed to play the role of quality ihl disseminators for large audiences, an important gap must be closed in order to express this potential fully. After reviewing various reasons why universities are objectively best placed to fulfil the ihl dissemination obligation in each country, the following section will discuss how the icrc’s approach to support teaching of ihl in academia was shaped in the 1990s. 4

Shaping the icrc’s Approach to Universities: The Situation in Former u.s.s.r. Republics and the Creation of the icrc Advisory Services

Starting in the 1980s, the icrc has supported the teaching of ihl in ­specific circles on a systematic basis: military and police forces, government and ­judiciary representatives, diplomats, academics, secondary schools students, Red Cross and Red Crescent Movement, humanitarian professionals, and the general public.50 While the 1980s saw the emergence of some landmark pedagogical initiatives, such as the Warsaw course in ihl or discussions around a possible icrc ihl textbook,51 ihl dissemination programmes for academics really took off in the 1990s, shortly after the collapse of the u.s.s.r. and the creation of the icrc’s Advisory Services in ihl.52 49

50 51 52

See for instance: https://www.geneva-academy.ch/our--­projects/publications (­Geneva Acad­emy); https://www.law.berkeley.edu/library/dynamic/guide.php?id=93 (Berkley Law); https://home.heinonline.org/titles/Law-Journal-Library/AsiaPacific-Yearbook-of -International-Humanitarian-Law/?letter=A (University of the Philippines). M. Harroff-Tavel, ‘The International Committee of the Red Cross and the Promotion of International Humanitarian Law: Looking Back, Looking Forward’, 96(895/896) irrc (2014), at 837–846. Ibid, at 832–834. Ibid, at 842–843; A. Bouvier, K. Sams, ‘Teaching International Humanitarian Law in Universities: The Contribution of the International Committee of the Red Cross’, 5 yihl (2002), at 382.

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As concerns the first event, it is the emergence of dozens of newly independent countries gathered in the “Commonwealth of Independent States” (c.i.s.), rather than the collapse of the u.s.s.r. itself, which was at the origin of the first proper academic programmes run by the icrc in Eastern and C ­ entral Europe, and in Central Asia. Indeed, with the independence of those new republics came the necessity to ratify relevant ihl treaties and adopt appropriate national legislation to implement them. This is also when national ihl committees were established. The idea behind those national entities was to “advise and assist governments in implementing and disseminating ihl and to facilitate cooperation between national committees and the icrc”.53 In practice, they are often inter-ministerial entities, composed of various government representatives and academic experts, with a mandate that can slightly differ from one country to the other.54 In parallel to the establishment of national ihl committees, the icrc’s Advisory Services in ihl were created, following Resolution 1 adopted by States parties to the GCs and by the representatives of the Movement at the 26th International Conference of the Red Cross and Red Crescent in December 1995.55 Their mandate has since been to “provide specialist legal advice to governments on national implementation [of ihl]”.56 On those bases, the icrc started supporting c.i.s. countries in their efforts to ratify ihl treaties and translate their obligations through relevant national legislation as of the 1990s. Very soon however, it became clear that additional ihl expertise was needed in each country, in order to carry out such efforts meaningfully.57 Hence, the icrc’s Advisory Services also supported the establishment and running of national ihl committees composed of representative of various ministries and experts, who would advise and support their respective governments in these tasks.58 In general, each of those committees would comprise one or several academics from amongst the most versed in ihl, as well as representatives of education ministries or sometimes Ministries of Universities. In the experience of the icrc, these professors and academic experts have often played a prominent role in drafting national legislations implementing ihl in their respective countries. 53

P. Berman, ‘The icrc’s Advisory Service on International Humanitarian Law: the Challenge of National Implementation’, 26(312) irrc (1996), at 338–347. 54 For more information on ihl committees, see: https://www.icrc.org/en/document/ table-national-committees-and-other-national-bodies-international-humanitarian-law. 55 Berman, supra note 53. 56 Ibid. 57 L. Vierucci, ‘Promoting the Teaching of International Humanitarian Law in Universities: the icrc’s Experience in Central Asia’, 83(841) irrc (2003), at 157. 58 Berman, supra note 53.

Promoting the Teaching of ihl in Universities

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The experience of c.i.s. countries can be considered as having played a key role in shaping the icrc’s academic programme. It has done so by combining the formal inclusion of ihl in academic curricula through promotion and negotiation with education authorities and the development of ihl expertise through training events and pedagogical tools for academics. Those two complementary aspects of the icrc’s academic programme can be defined as the structural and the pedagogical approaches,59 each of which will successively be developed further below. Structural Approach: Ensuring Durable and Sustainable Teaching of ihl In parallel to the window of opportunity that the establishment of the c.i.s. opened for the icrc’s academic programme,60 the Red Cross and Red Crescent Movement’s “Guidelines for the ‘90s” represented a turning point for dissemination efforts. They were adopted after a decade of regular dissemination engagements with various actors,61 and offered the Movement’s first official ­guidance on the matter, defining scope, target audiences, approaches and means for meaningful ihl dissemination efforts.62 From 1995 to the 2000s, dissemination of ihl took a more systematic and organized turn in terms of structure, while seeing innovative pedagogic ideas and solutions.63

4.1

4.1.1 Integrating ihl into the Academic Curricula In parallel to running train-the-trainer activities and developing teaching tools,64 the icrc developed contacts with education authorities, most of them designated as Ministries of Universities in c.i.s. countries. The structural part of the icrc’s minuni programme hence consisted in promoting the formal inclusion of ihl in academic curricula of leading universities and developing formal cooperation agreements with education authorities to achieve that purpose.65 Today, it is estimated that at least over 40 universities in c.i.s., central

59

S. Hankins, ‘Promoting International Humanitarian Law in Higher Education and Universities in the Countries of the Commonwealth of Independent States’, 37(319) irrc (1997), at 447. 60 Bouvier, Sams, supra note 52., at 389; Harroff-Tavel, supra note 50, at 842. 61 See infra Section 3.2. 62 International Red Cross and Red Crescent Movement, ‘Guidelines for the ’90s’, 32(287) irrc (1992), at 175–178; see also: Harroff-Tavel, supra note 50, at 839–840. 63 Harroff-Tavel, supra note 50, at 846–847. 64 See infra Section 3.2. 65 Hankins, supra note 59, at 447–448.

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European countries and the Balkans, most of them considered leading ones in their country, have integrated ihl into their academic curricula. As for the shape of such inclusion, the icrc has left open the question of whether ihl courses should be stand-alone ones or part of another course, whether they should be addressed to graduate or undergraduate students, be compulsory or elective.66 It has also left open the question of the number of teaching hours that should be dedicated to an ihl course, focusing on the inclusion of the discipline in curricula as such by adapting it to the reality faced in the field. Last, while outreach was quite generalized to most faculties of law, international relations, political science and journalism at the beginning of the programme, the icrc adopted a more selective focus on leading faculties in the 2000s, in order to equip future decision-makers with knowledge that would help them lead IHL-compliant policies once they obtain positions of influence. Those various approaches were reflective of the Guidelines of the ‘90s, which insisted on the necessity for ihl disseminators to adapt programmes to the local environment and base them on what was needed and feasible.67 These flexibility and feasibility principles were then formally crystallized in the first icrc’s guidelines for ihl teaching in universities, and in teaching aids, such as “How Does Law Protect in War”, proposing various possibilities to integrate ihl in curricula.68 4.1.2 Contextualizing ihl Teaching Due to the success of the approach in c.i.s. countries, the minuni programme was replicated on the five continents starting at the end of the 1990s. For instance, in India, in 1998, ihl was integrated in the curricula of undergraduate ll.b. programmes conducted by the 550 law colleges affiliated to them, while some twenty universities offered a full optional course in ihl.69 Moreover, 35 universities offered a Master’s programme in defence and strategic studies, with an optional course on ihl.70 In the US in 2012, 42 schools were offering ihl as a stand-alone course,71 while ihl Teaching Supplements allowed the integration of ihl into courses of national security law, international criminal law and constitutional law.72 In South Africa in 2009, 10 universities were o­ ffering 66 67 68 69

Bouvier, Sams, supra note 52, at 385–86. See also: Hampson, supra note 10, at 2–3. International Red Cross and Red Crescent Movement, supra note 62, at 176, 178. Bouvier, Sams, supra note 52, at 386–87; Sassòli, Bouvier, Quintin, supra note 2. U. Kadam, ‘Teaching International Humanitarian Law in Academic Institutions in South Asia: An Overview of an icrc Dissemination Programme’, 83(841) irrc (2001), at 167–169. 70 Ibid. 71 Jastram, Quintin, supra note 25, at 999. 72 Ibid, at 1005.

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ihl as part of another course (mostly public international law), compulsory or elective, and one was offering it as a stand-alone elective course.73 In China in 2006, most of the public international law textbooks used in universities contained a brief module on IHL/laws of armed conflict, but only two universities were offering specialisation in ihl to students opting for specialization in international law.74 In Colombia in 2006, the integration of ihl in curricula of targeted schools was reported to be successfully completed, with ihl being taught at undergraduate level in nine universities and at postgraduate level in one.75 While those results only represent a few examples of ihl integration in university teaching – some of them probably not anymore reflecting the reality of ihl teaching in the country today – they nevertheless illustrate how successfully the ihl integration track took off at the end of the 1990s following the c.i.s experience and how diversified its implementation has been worldwide. While expanding geographically at various paces, the icrc’s academic programme was influenced by the result of the icrc’s study on “Roots of Behavior in War”, published in 2005, which sought to understand the decisive f­actors bringing armed actors to comply or not with ihl.76 Based on the study’s findings, the icrc developed its Prevention Policy in 2008 that further shaped the organization’s approach towards ihl dissemination.77 Accordingly, all icrc dissemination programmes became part of an overall prevention approach, seeking to create an environment conducive to respect for life and dignity in each context by combining efforts to influence a variety of audiences on various scales (local, regional, global) and in a coherent, sustainable, and measurable way.78 As a result, academic programmes nowadays, although continuing to support ihl teaching in universities in general, should focus on humanitarian issues of relevance in each context and develop partnerships with academic actors that can have an (indirect) influence on those issues. After more than three decades of supporting the teaching of ihl in academic circles, the icrc has refined its approach: it now insists on privileging thematic partnerships with established and new academic players that result in conferences and training events, as well as research projects.79 Using social 73 Internal report, icrc, 2009. 74 Internal report, icrc, 2006. 75 Ibid. 76 Harroff-Tavel, supra note 50, at 846–849. 77 Prevention Policy, icrc, 2010, available at: https://www.icrc.org/en/publication/4019-icrc -prevention-policy. 78 Ibid, at 9, 11–15. 79 Teaching, Debating, Researching International Humanitarian Law, Action and Policy in Universities, icrc, 2016, available at: https://www.icrc.org/en/publication/0949-icrc-and -universities-working-together-promote-international-humanitarian-law.

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media, online q­ uestionnaires and statistics, and individual stories, academic programmes nowadays also seek to measure their own quantitative and qualitative progress.80 4.1.3 Supporting the Establishment of ihl Academic Centres Another icrc initiative that deserves to be mentioned is the support provided worldwide to the creation of the first academic centres specialized in ihl. Starting in 1992, discussions were held at the icrc Headquarters in Geneva to establish a university centre dedicated to ihl studies. In 2002, the University Centre for ihl (ucihl) was co-created by the University of Geneva, Faculty of Law, and the Graduate Institute of International and Development Studies, following an initial proposal and impulse from the icrc. The Centre, renamed Geneva Academy of International Humanitarian Law and Human Rights in 2007,81 has since trained scores of students. The curriculum of the ll.m. that it delivers does not only comprise ihl courses, but also the study of various branches of international law forming what the Centre calls the “international law applicable in armed conflict”. Hence, students receive multi-disciplinary teaching on ihl, ihrl, public international law relating to the use of force, international criminal law and other legal disciplines, such as refugee law. Until now, over 700 Geneva Academy graduates have taken positions in organizations, such as the UN, the icrc, the ohchr, the unhcr, Médecins sans Frontières, the icc, and the ECtHR.82 The icrc has continued supporting the centre since and developed collaborations in various fields, such as the training of ihl professors worldwide,83 the development of teaching and research tools,84 and various research projects.85 In similar developments, the icrc also 80 Guidelines, icrc Relations with Academic Circles to Foster an Environment Conducive to Respect for ihl and Humanitarian Action, Internal document, icrc, 2014, at 7. 81 Geneva University sets up University Centre for International Humanitarian Law, icrc, news release, 2002, available at: https://www.icrc.org/eng/resources/documents/ news-release/2009-and-earlier/5c6j3a.htm. 82 See: https://www.geneva-academy.ch/masters/study-with-us/why. 83 See: https://www.icrc.org/en/event/12th-advanced-seminar-international-humanitarian -law-university-lecturers-and-researchers. 84 Since 2014, students from the Geneva Academy and the University of Geneva have developed new case studies for the “How Does Law Protect in War?” online platform on a yearly basis and under the supervision of Professor Sassòli and Teaching Assistant Yvette Issar. See: https://casebook.icrc.org/; students from the Geneva Academy have also contributed to the editing of articles of the International Review of the Red Cross. See: https://www .geneva-academy.ch/masters/ll-m/programme/internships. 85 In 2017, students from the Geneva Academy supported the icrc to finalize the “ihl in Action”  research project. See: https://ihl-in-action.icrc.org/. See also: “Armed NonState Actors and the Protection of Civilians”, another research project developed by the

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supported the establishment of other specialized centres, which also contributed to train students and develop ihl expertise in other regions.86 4.1.4 Partnering with ihl Clinics In recent years, the study of ihl in universities has also reached a more professional level, with the establishment of dedicated law clinics allowing students to mobilize their knowledge for various professional ihl projects, in partnership with international and non-governmental organizations. Such ­possibilities exist today in Canada, the US, the Netherlands, Switzerland, Italy and Israel.87 Lately, the icrc has cooperated with four of such ihl clinics to develop “ihl in Action”, an online database allowing the study of ihl through case studies illustrating how it is concretely and successfully implemented in the field.88 While these ihl clinics are the result of the admirable and continuous commitment of ihl professors running them, the longstanding support of the icrc to ihl teaching in universities, along with that of its Red Cross and Red Crescent partners,89 has certainly played a role to increase the quality of ihl teaching to a point that it could materialize in something more, such as those clinics. In the future, it is expected that ihl clinics will continue flourishing worldwide with the support of the existing ones and the icrc. Indeed, those centres bridge an important gap between ihl theory and practice, an essential contribution for the study of ihl, which remains a very pragmatic and rapidly professionalizing field.

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

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Pedagogical Approach: Empowering the Trainers to Teach ihl Based on Contemporary Practice Going back to 1981, the icrc ran the first edition of the Warsaw course on ihl in partnership with the Polish Red Cross National Society. A landmark ihl training event, it represented an important first step for the organization’s pedagogical approach to teach ihl in academic circles on a regular basis.90 Some 30 editions of the course took place until 2012, bringing numerous students, professors and, subsequently, humanitarian professionals, to pursue their professional path in the field of humanitarian law and related disciplines. Amongst those, a certain number have acquired a solid reputation in that field, and have contributed to promote and implement ihl in various capacities.91 4.2

4.2.1 Setting Train-the-Trainer Courses It is rather in the nineties that the icrc developed a comprehensive number of courses and seminars for students and then professors in Eastern and Central Europe, as well as Central Asian countries. At first targeting mostly students, training activities progressively shifted their focus to professors. Realizing the enormous impact that training university professors could make on dissemination, the icrc moved progressively from a direct to an indirect teaching model, prioritizing a train-the-trainer approach.92 This shift was then crystallized in icrc guidelines for ihl teaching in universities and influenced by the Prevention Policy.93 In practice, it encouraged the icrc to develop events focusing specifically on ihl professors’ needs. One can mention the ihl professors’ round tables, which continue taking place in numerous countries and regions today.94 Organized by the icrc, those events gather professors, lecturers, and researchers in icrc’s partner universities. They aim to take stock of the status of ihl courses in partner universities, their length, modality, level, number of students attending them, participation in ihl competitions, etc. They also represent a forum for discussion on upcoming events and new tools in the field 90 Harroff-Tavel, supra note 50, at 832. 91 For the recollection of memories about the Warsaw course from Alumni, who have since their participation become ihl experts renowned worldwide, see: http://www.redcross .int/EN/mag/magazine2003_2/22-23.html. 92 See for instance: icrc, ‘International Committee of the Red Cross Training Seminar on International Humanitarian Law for University Teachers’, 81(836) irrc (1999), at 959. 93 See: Bouvier, Sams, supra note 52, at 384–85. 94 Such round tables and lecturers’ workshops currently take place at regional level in Northern America, the South African region, the North-Caucasus region and the SouthEastern Asia region. Several others take place at national level in a dozen of countries worldwide. For more information, see: Annual Report, icrc, 2016, at 82, 183, 315, 317, 340, 361, 376, 422, 438, 472, 479.

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of ihl. Last but not least, in certain regions, such as Africa and Asia, they allow monitoring the status of regional ihl yearbooks, which offer academics opportunities to publish on topics of expertise in accredited academic journals.95 Numerous ihl courses, seminars, advanced seminars, and workshops initiated by the icrc in collaboration with its academic partners take place in various countries and regions worldwide, such as the South Asia Teaching Session on ihl, the All Africa Course, the Transatlantic Workshop on ihl, or the Bruges Colloquium.96 Lasting from a few days to two weeks, most of them address ihl substance and teaching methodology through formal teaching sessions, case studies, colloquia, peer-to-peer exchanges, IHL-related movie screening and commenting. In terms of trends, it seems the icrc is nowadays prioritizing shorter and more flexible approaches: it organizes workshops allowing ihl lecturers to focus on themes of relevance in the region concerned, as well as to brainstorm on innovative teaching and learning methodology and tools.97 4.2.2 Supporting Multi-Disciplinary Expertise Another well-established trend in the icrc’s pedagogical approach has consisted of integrating non-legal academic experts in its events and publications, in order to reflect on ihl in a more multi-disciplinary way that links legal substance to contemporary practice, humanitarian action, ethics, and other ­disciplines taught at academic level.98 In that regard, the icrc has also organized conference cycles at headquarters and in the field, gathering academics from various disciplines to reflect on humanitarian issues faced currently on the battlefield.99 This expansion in other, non-legal fields is also due to a disturbing claim that “respect for ihl is eroding” or that “ihl itself is eroding”.100 95 96

Such as in the South African or the South-East Asian region. See: note 49. For a non-exhaustive list of such events, see: https://www.icrc.org/en/download/file/ 36196/ihl_activities-7feb2017.pdf. 97 Such workshops have taken place in Bamako, Kinshasa, or Amman for instance. 98 See for instance the evolution of the way themes are treated in the International Review of the Red Cross since the 2000s, or the conference cycles the icrc has organized on various IHL-related themes of relevance since 2014: https://www.icrc.org/en/war-and -law/law-and-policy; See also the call made by Professor X. Philippe for multi-disciplinary teaching of ihl: X. Philippe, ‘Enseigner le Droit International Humanitaire’, in C. Lanord, J. Grignon, J. Massé (eds.), Tribute to Jean Pictet par le Concours de Droit International Humanitaire Jean-Pictet (2016), at 599–600. 99 See supra note 98. 100 See for instance: A. Dieng, We Must Stop the Erosion of International Humanitarian Law, http://www.justiceinfo.net/en/justice-reconciliation/25124-we-must-stop-the-erosion -for-international-humanitarian-law.html; B. Wittes, Notes on the Erosion of Norms of Armed Conflict, https://www.lawfareblog.com/notes-erosion-norms-armed-conflict.

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­ lthough a mere matter of perception, rather than evidence, it has made it necA essary for the icrc to develop the study of ihl beyond its mere rules, in order to better understand why ihl is (or is not) respected in current armed conflicts, what large-scale humanitarian consequences, such as displacement and migration, ensue when the law is not respected and what contribution respect for ihl can make to restoring peace.101 Hence, teaching ihl in academia today also means having an interdisciplinary understanding of the law and on the issues mentioned above, in order to respond to possible students’ claims about its alleged erosion, an issue flagged soon enough by Professor Marco Sassòli, which he calls the “credibility gap”.102 4.2.3 Organizing Students’ Competitions Besides organizing train-the-trainers events, the icrc has supported and (co-) organized students’ competitions in ihl for decades. Namely, it has supported the Jean-Pictet Competition, organized by an independent committee, since the 1990s.103 The icrc has also created dozens of similar events, most of them modelled after the Pictet Competition, at national and regional level. Today, it organizes or co-organizes some 30 students’ competitions at national level and six regional competitions worldwide.104 For a certain number of these, the icrc partners with professional associations. This is for instance the case for the Henry-Dunant Memorial Moot Court Competition in South Asia, which has benefitted from the support of the Indian Society of International Law (isil) for years and allowed to deepen the relationship with the icrc.105 Most 101 The results of this research endeavours are expected in 2018 and will be made public through the icrc’s Law and Policy newsletter. To subscribe to it, interested readers can click on the “subscribe button” on the following web page: https://www.icrc.org/en/law -and-policy-newsletters. 102 Sassòli, Bouvier, Quintin, supra note 2, Chapter 13, at 87–88; M. Sassòli, Y. Issar, ‘Challenges to International Humanitarian Law’, in A. von Arnauld, N. Matz-Lück, K. Odendahl (eds.), 100 Years of Peace Through Law: Past and Future (2015), at 223–226. 103 See supra note 29. For more information on the Jean-Pictet Competition and its first edition in 1989, see: Hampson, supra note 10, at 6–7. 104 E. Kuster, G. Dvaladze, Why Educating Students on Humanitarian Norms and ­Values ­Matters, Humanitarian Law and Policy Blog, 29 July 2016, available at: http://blogs .icrc.org/law-and-policy/2016/07/29/ihl-competitions-humanitarian-education/; ­Regional  ihl com­petitions take place in Western Africa (Concours Régional de Plaidoiries en dih), Eastern Africa (All Africa Competition in ihl), Eastern Europe (Martens Competition), South Asia (Henry Dunant Memorial Moot Court Competition) and South-East Asia (Hong Kong Red Cross ihl Moot). For more information on those events, see: https://www.icrc.org/en/what-we-do/building-respect-ihl/education-outreach. 105 See for instance: http://blogs.icrc.org/new-delhi/2016/09/23/issues-international-law -taken-front-row-seat-hon-ble-justice-madan-lokur/.

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of those competitions consist of a series of role-play tests, in which students have to endorse different roles – from lawyers advising military commanders up to icrc delegates – and express various positions on facts reported daily in the context of a fictitious armed conflict.106 Some of them resemble more formal pleadings in front of a court, while others are based on written essays.107 While these events are aimed at students that the icrc considers potential future decision-makers, they play a key role in triggering interest to study ihl. Hence, they also contribute to ensure the sustainability of ihl courses by attracting new students willing to “take the law out of the book”.108 For the icrc, they also constitute opportunities to mobilize its network of ihl lecturers and professionals to assess students’ performances. The studious but informal atmosphere surrounding students’ competitions contributes to generate and consolidate multi-disciplinary networks supportive of ihl implementation in each country, region, and at a global level.109 Those events are also key to allow students to interact with ihl professionals and get concrete perspectives as to potential career paths, making them an indispensable part of the icrc’s support to ihl teaching in academia. Students’ competitions illustrate probably best how the icrc’s events aimed at academic circles contribute not only to promoting ihl, but also to developing networks of ihl experts and friends over mid- to long-term, which can support humanitarian efforts in favour of victims of armed conflicts. 4.2.4 Providing Generic ihl Tools Even if the icrc had already developed some ad hoc pedagogical tools to promote the teaching of ihl in academia as of the 1960s,110 it is rather in the 1990s that such work became more prominent in the organization’s pedagogical approach to academic circles. As seen above under the icrc’s “structural approach”,111 an evolution shifting the icrc’s focus from students to professors 106 For an overview of this role-play methodology, watch the following movies: https://www .youtube.com/watch?v=T2AVTycA454 (Jean-Pictet Competition); https://www.youtube .com/watch?v=B83EdBUh9Vg (Philippines National Moot Court Competition); https:// www.youtube.com/watch?v=1NRfOQ2F1nc (Israel National ihl Competition). 107 See for instance the Hong Kong Red Cross Moot Court Competition: https://www.icrc .org/en/document/china-hongkong-moot-court-2017-news-release; see also: the Henry Dunant Memorial Moot Court Competition organized in India: http://blogs.icrc.org/new -delhi/2014/07/10/kathmandu-law-school-wins-national-round-of-henry-dunant-moot -court-competition-in-nepal/. 108 To better understand the meaning of this motto dear to the founders of the Jean-Pictet Competition, watch the Jean-Pictet competition movie mentioned in note 106. 109 Kuster, Dvaladze, supra note 104. 110 H. Coursier, Course of Five Lessons on the Geneva Conventions, icrc (1963), at 109. 111 See: Section 3.1.

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also took place concerning pedagogic tools. It culminated in the first edition of “How Does Law Protect in War?” in 1999, a key publication written by Marco Sassòli, Antoine Bouvier and later on Anne Quintin, to accompany ihl professors in their teaching.112 While the book certainly benefitted from the icrc’s experience in c.i.s. countries, its origins are to be found in the 1980s where, in parallel with starting up the Warsaw course, the icrc was discussing the best format for an ihl pedagogical tool specifically addressed to academics. At that time, two ideas were competing: (i) a textbook presenting the main aspects of ihl to students; and (ii) a casebook allowing them to learn the law by discussing case studies based on contemporary practice in armed conflicts.113 As a result, “International Humanitarian Law: An Introduction”, a concise ihl handbook written by Hans-Peter Gasser, was published by the icrc in 1993 and reportedly well received by students.114 However, the icrc also published “How Does Law Protect in War?” a comprehensive ihl casebook with a ready-to-use outline for professors, in 1999. This publication has since become a referenceteaching tool worldwide.115 In 2016, “International Humanitarian Law: A Comprehensive Introduction”, a new version of the ihl handbook, was published by the icrc in hard and soft copies.116 Written by Nils Melzer, it takes stock of the evolution of ihl practice between 1992 and 2016 and allows readers to get introduced to ihl in a way that generally reflects icrc’s perspective, as well as dig in various topics through numerous hyperlinks. Similarly, “How Does Law Protect in War?” has been translated into various languages and updated on several occasions.117 However, its most remarkable development was the adaptation of the heavy paper publication into a fully navigable online database offering free and enhanced access to numerous ihl resources for professors and students worldwide.118 Among many other ihl publications and tools,119 these handbooks and casebooks, today fully accessible online for free, can both be considered as the 112 Sassòli, Bouvier, Quintin, supra note 2. 113 icrc, Internal Archives. 114 H.-P. Gasser, ‘International Humanitarian Law: An Introduction’, in H. Haug (ed.), ­Humanity for All: The International Red Cross and Red Crescent Movement (1993). 115 See supra note 112. 116 N. Melzer, International Humanitarian Law: A Comprehensive Introduction (2016). 117 See: https://www.icrc.org/en/document/interview-how-does-law-protect-war-new -edition. 118 Sassòli, Bouvier, Quintin, supra note 2. 119 See for instance the icrc e-learning basic course on ihl, available at: https://www.icrc .org/en/document/basic-rules-and-principles-ihl#.VDuMgGd_v10; see also: the list of various generic and thematic ihl digital tools developed by the icrc in recent years: https://www.icrc.org/en/download/file/35083/virtual-online-tools-handout-jan2017.pdf.

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main pedagogical tools supporting the icrc’s approach. They aim at ensuring that ihl is taught according to its letter and spirit in universities worldwide. This aim is also made possible thanks to the considerable efforts the icrc has dedicated to translate those ihl tools and numerous others, along with articles from the International Review of the Red Cross into many languages, such as Russian, Arabic, Chinese, Spanish, French, Bosnian-Serbo-Croatian, etc.120 Similarly, the icrc has also been supporting national authors publishing textbooks on ihl after participating in related training. This was also a way of teaching ihl rules in national languages and in a way that could be more reflective of local culture. 4.2.5 Developing Thematic Digital Tools In parallel to those generic ihl tools and drawing from them, the icrc has developed thematic teaching tools allowing both law and non-law faculties to teach on specific humanitarian and legal issues, such as protection of medical care, sexual violence in armed conflict and humanitarian access. Even in the absence of a proper ihl course within curricula, ready-to-use workshops allow students to explore humanitarian problems faced today in armed conflicts, the applicable legal framework and the humanitarian responses that can be brought to those issues.121 They combine various pedagogical approaches, such as inductive teaching, interrogative method, brainstorming, group work, and tools, such as ready-to-use presentations with speakers’ notes, quiz, movies from the field and case studies. Similarly, and drawing from its Advanced Seminar in ihl for University Lecturers and Researchers,122 the icrc has developed Advanced ihl Learning Series allowing professors to keep abreast of the latest developments on a specific legal issue, such as the legal and policy framework governing humanitarian action.123 The series consist of webpages hosting videos, which feature renowned lecturers presenting and discussing those topics, along with required readings and teaching material. They are also The icrc also supported the writing of other textbooks, such as F. Kalshoven, E. Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (2011); it also supported other casebooks, such as H. Seibst, Compendium of Case Studies of International Humanitarian Law, icrc (1994). 120 See the various language versions of www.icrc.org, as well as various languages available to download and purchase such tools on https://shop.icrc.org/. 121 Ready-to-use workshops, icrc, 2016, available at: https://casebook.icrc.org/pedagogical -resources/thematic-workshops. 122 See supra note 83. 123 Advanced ihl Learning Series, icrc, 2016, available at: https://www.icrc.org/en/doc ument/advanced-ihl-learning-series.

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designed to help ihl and non-IHL lecturers alike to introduce the topic in their teaching. Finally, the icrc also developed several e-briefing, powered by the International Review of the Red Cross, that allow academics approaching specific issues through a multi-disciplinary way and various media.124 4.2.6 Moving from Teaching to Debating Tools As concerns the Review, one of its oldest and best known dissemination tools,125 the icrc also made it evolve to help professors take into account contemporary debates in their ihl teaching and research. The Review is also a means allowing lecturers developing their expertise by submitting articles on legal and humanitarian issues, such as “War in Cities”, “Scope of Application of the Law” or “Generating Respect for the Law”.126 While the Review played a leading role, triggering ideas and debates on humanitarian law, action and policy for over a century, recent decades have seen an increased openness towards the multi-disciplinary study of ihl through the lens of contemporary humanitarian trends and problems.127 Today, the Review also powers the icrc’s “Humanitarian Law & Policy” blog gathering views from within and outside the icrc on hot topics and fostering online and shorter discussions around them,128 as well as thematic conference cycles.129 Similarly, the ihl debate has also become more decentralized, with the development of regional ihl yearbooks in Africa and the Asia-Pacific region.130 Such tools have encouraged lecturers to write and debate ihl issues of relevance to their context and offer reference material for governmental authorities, experts and researchers in each region. The icrc’s pedagogical approach supporting the teaching of ihl in universities has considerably developed and evolved from the 1980s up to the present. It has achieved worldwide outreach and has become more systematic, 124 E-briefing Library, icrc, 2017, available at: http://e-brief.icrc.org/. 125 See supra note 5. 126 For free access to these issues and more, consult the following web page: https://www .icrc.org/en/international-review. 127 International Review of the Red Cross, ICRC/Cambridge University Press, available at: https://www.icrc.org/en/international-review; see also: https://www.cambridge.org/core/ journals/international-review-of-the-red-cross. 128 Humanitarian Law & Policy, icrc, 2016, available at: http://blogs.icrc.org/law-and-policy/. 129 See supra note 98. 130 African Yearbook of International Humanitarian Law (ayihl), Juta and Company (Pty) Ltd (Juta’s Law Journals) (2016), available at: https://journals.co.za/content/journal/ jlc_ayihl; Asia-Pacific Yearbook of International Humanitarian Law, University of the Philippines Law Center, Institute of International Legal Studies (2011), available at: https:// home.heinonline.org/titles/Law-Journal-Library/AsiaPacific-Yearbook-of-International -Humanitarian-Law/?letter=A.

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f­ocusing on professors as mass and quality ihl disseminators.131 As concerns tools, a comprehensive panoply has been developed, amongst which certain publications have reached the status of references in the field of ihl teaching.132 This is probably the result of both the persistence and imagination the icrc has demonstrated over the past decades to promote the teaching of ihl in academic circles and beyond.133 Such an achievement is also due to technological innovation, namely the development of the internet as of the 2000s, which has provided a crucial contribution to the outreach of the icrc in the field of ihl teaching. While those evolutions represent additional steps, it is important to keep in mind that they do not mean the end of the initial pedagogical approach followed by the icrc. In that regard, those developments, although a major breakthrough especially in the digital field, should be considered as new layers adding to the existing ones. The variety of pedagogical tools and the flexibility of the structural approach enable the icrc to tailor its academic programmes more precisely to the particular reality it faces in the field. Indeed, depending on the availability of the internet, level of students, their interest, the expertise and will of professors, and any other relevant factor in each context, the icrc can adapt its support to ensure sustainable, relevant, and quality teaching of ihl in universities worldwide. 5 Teaching ihl in Universities: Successes and Challenges As seen above, ihl has probably never been as much taught in universities as it is today.134 While there are no proper statistics assessing the overall number, shape, duration, and attendance of ihl courses taking place in academia worldwide,135 it is estimated that at least some 600 universities worldwide have

131 In this regard, the icrc has also been supporting national authors, who happened to be former participants in its training, in publishing textbooks on ihl. This was also a way of disseminating ihl rules in a national language and reflective of local culture. 132 See for instance the “How Does Law Protect in War?” online platform especially addressed to ihl lecturers: it was the most visited page with legal content on the icrc’s website in 2017, with over 136,000 unique visitors (source: GoogleAnalytics). 133 In this regard, see: V. Bernard, M. Nikolova, ‘Generating Respect for the Law: the Need for Persistence and Imagination’, in C. Lanord, J. Grignon, J. Massé (eds.), Tribute to Jean Pictet par le Concours de Droit International Humanitaire Jean-Pictet (2016), at 545–578. 134 See supra note 10. 135 A few surveys on ihl teaching in academia have been conducted, but rather at national or sub-regional levels. For instance, see the survey conducted in the U.S. and analyzed in: Jastram, Quintin, supra note 25, at 987–1027.

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integrated ihl in their curricula, in one way or the other.136 This is probably far more than when the icrc started to promote the teaching of ihl in academic circles on a regular basis in the 1980s. The number of dissertations addressing ihl issues also seems to have increased dramatically,137 along with the number of IHL-related issues addressed by specialized academic blogs.138 To get an idea of the overall quality and quantity of ihl teaching worldwide, an online questionnaire was answered in spring 2017 by icrc focal points for relations with academic circles worldwide. A majority of them estimated that ihl integration, understood as “the regular teaching of ihl in influential universities and in a way that presents rules and principles correctly and pedagogically”, was “average” to “high”.139 While such estimates should be taken as they are, they nonetheless remain encouraging. Similarly, it could be envisaged that possibly up to 100.000 professionals work today in the field of ihl and/or in a related field.140 Social media groups 136 Source: internal icrc estimates. 137 For instance, search results for “International Humanitarian Law” in the Networked Digital Library of Theses and Dissertations (ndltd) provides close to 350,000 hits. See: http:// search.ndltd.org/search.php?q=international+humanitarian+law. 138 See for instance: “Opinio Juris”, http://opiniojuris.org/; “ejil:Talk!”, https://www.ejiltalk .org/; “Lawfare”, https://www.lawfareblog.com/; “Intlawgrrls”, https://ilg2.org/; “JustSecurity”, https://www.justsecurity.org/. 139 This internal survey was answered by 64 icrc focal points for relations with academic circles on some 120. According to it, 40% of the focal points estimated that ihl integration was “average” in the context(s) they covered, while 30% thought ihl integration was “high”. 20% of the focal points thought the level of ihl integration was “low”. Less than 5% estimated that ihl integration was “very high” and “very low” (source: icrc internal survey). 140 This unverified estimate rests on the number of members of online professional groups, associations and academia alumni, which are represented on the LinkedIN social network. However, it should also be taken with caution, as a certain number of those professionals might belong to several of those groups. In total, those professional groups gather more than 100.000 members: International Humanitarian Law (11,576 members), International Criminal Law (56,828 members), icc- International Criminal Court – Cour Pénale Internationale (4,472 members), iihl (820 members), Network of International Humanitarian Law Professors (324 members), Anciens du Concours Jean-Pictet Competition Alumni (259 members), ReliefWeb humanitarian discussion group (16,278 members), International Red Cross and Red Crescent Delegates (3,027 members), ­Humanitarian Professionals (20,567 members), International Humanitarian and Development Professionals (19,906 members), Humanitarian Training (5,186 members), International ­Humanitarian Networking Group (3,896 members), icrc – International Committee of the Red Cross – icrc (2,284 members), Harvard Humanitarian Initiative (632 members), Program on ­Humanitarian Policy and Conflict Research at Harvard (252 followers); Alumni, The ­Geneva Academy of International Humanitarian Law and Human Rights (126 members); see also relevant Facebook interest groups, such as ihl in academic circles (36,949 likes),

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

J­ essup White & Case llp (14,457 likes) Concours Jean Pictet (1,502 members), adh/cudih Alumni (378 members). 141 Especially on LinkedIN: see: note 140. 142 In 2017, the Review and “How Does Law Protect in War?” accumulated the biggest numbers of unique visitors on the icrc’s web site with respectively 136,969 unique visitors for “How Does Law Protect in War?” (online platform) and 79,869 unique visitors for online pages of the International Review of the Red Cross (source: GoogleAnalytics). “International Humanitarian Law: A Comprehensive Introduction” was downloaded by over 90% of single visitors of its host web page and half of its hard copies were sold after five months (source: internal icrc statistics).

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

143 Jastram, Quintin, supra note 25, at 996–997. 144 See supra note 68.

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

145 The Visual History of Decreasing War and Violence, OurWorldinData, e-briefing, available at: https://ourworldindata.org/slides/war-and-violence/#/title-slide. 146 Trends in Armed Conflicts, 1946–2015, Peace Research Institute Oslo (2016), available at: https://www.prio.org/utility/DownloadFile.ashx?id=15&type=publicationfile. 147 In 2010 for instance, the icrc closed its delegation in Budapest and drastically decreased its support to academic programmes in Central and Eastern Europe, as well as the B ­ alkans. Thereafter, the number of ihl courses and events decreased, reportedly also because of budget cuts caused by the Euro crisis and even affecting public international law courses in law faculties.

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­ niversity is unsafe, or that infrastructures have been damaged to a point that u makes the pursuit of any course a very difficult, if not impossible, endeavour. While some lecturers persist in teaching their students even in such dire situations, armed conflicts mean that courses are interrupted in most cases. There are nevertheless examples, in which technology has allowed not only teaching to continue, but also to reach out to students geographically far away from their universities, and for whom the trip to study would be far too dangerous. The Syrian virtual university is one of such examples.148 In other situations, while the university remains functional in armed conflict and the fighting does not directly disrupt teaching, the polarized situation makes it more difficult to teach ihl based on contemporary practice and in an objective way. Lecturers might be faced with strong reactions from their students, when discussing the protected status of surrendering enemy combatants, for instance. Conversely, it might be difficult for lecturers themselves to keep objective and neutral when teaching ihl in such a situation, especially if they or their relatives have been adversely affected by the armed conflict. While it is believed that the pursuit of ihl teaching is especially important in such situations, it nonetheless presents challenges to which any lecturer might react in his/her own way. It would be pretentious to offer ready-to-use solutions for such a difficult challenge, but empathetic and respectful listening and teaching, use of case studies from another context, while addressing similar issues to those actually faced in the country, and the support from external ihl professionals may prove useful for lecturers confronted with such scenarios. Challenge #4: Addressing the Misconception that “ihl Is Always Violated” A fourth challenge can be found in the growing credibility gap that ihl is currently suffering.149 There has never been so much IHL-related teaching, debating, and researching, while numerous blatant ihl violations are reported daily in the media. While it represents a general challenge to ihl as a whole, it is also a specific challenge to any ihl lecturer facing the doubts of his/her students. But it should not be avoided. As Xavier Philippe puts it, ihl lecturers should actively engage their students on this issue and demonstrate that ihl rules are not all constantly violated.150 Many of them are actually respected and implemented faithfully, but these positive examples do not receive the 5.4

148 See supra note 30. 149 See supra note 102; see also: Bernard, Nikolova, supra note 133, at 577–78. 150 Philippe, supra note 98, at 599–603.

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media coverage they deserve. While it is crucial that students seek information on current armed conflict through media, they should be guided by their professors when doing so. Media do not report impartially about ihl respect and violations. Selection is made, based on several criteria: commercial competition for ­information, which will generate the largest interest, is one of them. Unfortunately, human nature is less interested in normality – when the law is respected, which, for ihl, very often translates into a mere absence of facts (no violation) – than by outrageous crimes. Hence, what sells most in general is information related to blatant and shocking ihl violations, which in turn provides large audiences with a feeling that the law is never respected. While one’s lack of tolerance for ihl violations should rather be taken as an encouragement pushing for increased respect, it is fascinating to observe how promptly certain scholars, when talking about erosion of respect for ihl, or even erosion of ihl, seem to throw the baby out with the bathwater. In comparison, when addressing disrespect of traffic law, which occurs on a very daily basis worldwide, there is very rarely a consideration that traffic law is eroding following outraged r­ eactions to violations. Why is that? This question is for researchers to address. A scholar nonetheless suggested that it could be that, if being inappropriately confused with ihrl, ihl could suggest a promise of individual well-being of such a high standard that it could never been reached, especially in armed conflicts. Indeed, ihl is not human rights. While it efficiently seeks to preserve human dignity in war – one of the worst situations humankind can experience – one should never confuse this basic, but crucial promise of ihl, with that of human rights. Indeed, the latter promises individual and collective fulfilment in all domains of life of human beings, a far more developed ambition than the former, which rather seeks to preserve the core of individual and collective rights in armed conflict. Thus, using more instances of respect for the law in the ihl classroom and beyond is more than a solution provided to lecturers; it is a necessity to close the “credibility gap” by changing the narrative on ihl.151 Challenge #5: Supporting ihl Teaching in Universities in an Appropriate Way Worldwide Fifth, but not last, an overall challenge, rather internal to the icrc, can be found in the difficulty to monitor and support, worldwide, regular ihl teaching, 5.5

151 J. Garcia Ravel, V. Bernard, Changing the Narrative on International Humanitarian Law, Humanitarian Law and Policy Blog, 24 November 2017, available at: http://blogs.icrc.org/ law-and-policy/2017/11/24/changing-the-narrative-on-international-humanitarian-law/.

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quantitatively as well as qualitatively. While icrc activities in the field of dissemination of ihl were mainly addressed to intellectual elites and ­academic circles in 1863 and continued to be so for some 40 years until World War i,152 the organization is today much better known for its humanitarian work in the theatre of armed conflicts. This has made it shift its focus from long to short term. Indeed, humanitarian operations require, beyond a certain level of planning, a capacity to react rapidly to human suffering. As a result, limited resources have been allocated to prevention activities, whose effects can be monitored and seen mostly over mid- to long-term. Hence, monitoring the progress of the icrc’s prevention activities is made more difficult by the discrepancy between the means that would be needed to do so properly over several decades and the actual resources that are allocated to that purpose. In addition, provided that the icrc had the resources to monitor the number of ihl courses conducted in academia worldwide on a regular basis, it would still prove difficult, if not impossible, to monitor their quality. To this end, one should foresee appropriate human resources to attend at least a few courses, and monitor exam questions and answers, which seems highly unrealistic in view of the serious and massive humanitarian challenges the icrc is currently facing. The aforementioned estimates, provided through field reports, social media, and online statistics, can certainly help assessing the status of ihl teaching in academia today. Such estimates can also help planning and adapting the icrc’s support to such teaching. While the current, though imperfect, monitoring of academic programmes should be maintained and developed, the icrc will be unable to confirm and use data on ihl teaching professionally, until it allocates appropriate resources to properly monitor, assess, and analyse both the quantitative and qualitative progress of its prevention programmes. Besides proper monitoring of ihl teaching, other challenges for the icrc’s support to ihl teaching can be found, for instance, in the difficulty to recruit staff not only versed in ihl, but also familiar with interactive teaching in academia, digital communication and promotion, and committed to support such a file on the (very) long run; translating ihl teaching tools in various languages also demand considerable efforts that cannot be underestimated; and the lack of access to the internet in a certain number of countries makes it necessary to find tailor-made solutions to promote ever-increasing digital ihl tools to support up-to-date teaching in academia.

152 See: History of the icrc, Article (2016), available at: https://www.icrc.org/en/document/ history-icrc.

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6 Conclusion Teaching ihl in academia remains today a key manner for States to fulfil their obligation to disseminate ihl through programmes of civil instruction. The three past decades have seen steady progress in that regard: in the estimates of the icrc, among the 900 universities it interacts with on a regular basis, probably 600 have integrated ihl in their teaching programmes in one way or the other. This can be considered an overall success, for which due credit must be attributed to committed lecturers, universities, and education authorities. The role of the icrc and its Red Cross and Red Crescent partners, which often trigger and maintain appetite for ihl teaching in the academic community, should also be highlighted in that regard: since the 1980s, they have engaged education authorities and academia on a regular basis to include ihl in their teaching curricula; they have trained scores of students and then lecturers to help them develop their knowledge and teaching; they have developed and promoted numerous pedagogic tools – general and thematic, on paper and then online – to support lecturers in their efforts. Credit for the success of ihl teaching in universities should also be given to the remarkable work of the Ad Hoc tribunals, the icc, and all mixed, special, and national tribunals and jurisdictions that have brought ihl back into light through their remarkable work to prosecute its violations, interpret, and clarify this body of law as of the 1990s. Similarly, the digital revolution that took place with the emergence of the internet, allowing mass audiences to access, discuss, and study IHL-related information should be duly taken into account when analysing the progress that ihl teaching in universities has known since the 2000s. However, when talking about the progress made by ihl teaching in academia worldwide, one should always keep in mind that the integration of ihl remains uneven from one country to the other. Similarly, while one can probably assume that ihl was not much taught in academia before the 1980s, there is no real benchmark to compare the past situation with that of today. Moreover, assuming the teaching of ihl in academia is indeed a success story, what remains to be done? In view of above-mentioned challenges, support to ihl teaching should certainly not stop there. Should future efforts focus on making courses compulsory? Improving their length? Ensuring their quality? Bringing ihl teaching to focus more on humanitarian problems in each country? Those questions should definitely help frame future efforts of lecturers, the icrc, its Red Cross and Red Crescent partners, as well as any other actor involved in such a field.

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Beyond those questions, ihl teaching in academia still faces a certain number of challenges: the pressure on academia’s budget making them drop ihl courses; the armed conflicts themselves, when they disrupt or polarize the teaching environment; the fierce competition ihl, as a very specific field, can be confronted with, especially when compared to more popular and promising fields, such as business law or human rights; the credibility gap affecting ihl in general and its teaching in particular; the difficulty for the icrc to monitor ihl teaching in academia and support it in an appropriate way worldwide. Answers to those challenges exist: adapting ihl teaching to available means and promoting it creatively to government donors to resist budget reductions; exploring distance/online learning and emphasizing empathetic listening and teaching to maintain courses even when armed conflicts erupt; providing students with opportunities to connect to ihl professionals through dedicated events or their work in law clinics; duly addressing students’ doubts on the relevance of ihl and using instances of respect for the law to teach it; dedicating creativity, persistence, and appropriate means to monitor and support the teaching of ihl in academia as a contribution to prevent human suffering. Universities play a key role in the dissemination of ihl to ensure its faithful implementation. They are encouraged, along with their lecturers, to play this role to its fullest extent: integrating ihl can be done in multiple ways, from two hours of compulsory teaching for undergraduates, up to a full Master degree for postgraduates. Whatever formula is chosen, lecturers are encouraged to focus their teaching on contemporary practice, discussing armed conflicts their students hear about, and duly addressing their questions and claims in the classroom. Experience has shown that case studies and discussions drive knowledge. Interaction, innovation, diversity in teaching tools and media, instances of respect for the law, multi-disciplinary teaching, and connection with the professional world should form the d.n.a. of any ihl course. Indeed, teaching ihl is a difficult commitment for both lecturers and students, who will have to address dilemmas and issues without single answers. In the experience of this author, it is nonetheless a worthwhile and crucial one to better understand our society and human nature. Ultimately, it can also help prevent humankind from repeating its worst mistakes, learning from them to build a more empathetic and peaceful world.

Comparing Experiences: Engaging States and Non-State Armed Groups on International Humanitarian Law Andrew Carswell and Jonathan Somer* Abstract The genesis of this contribution was a conversation between the authors when they were working respectively as point persons for training State armed forces with the icrc (Andrew) and non-State armed forces with Geneva Call (Jonathan).1 When discussing the barriers to ihl compliance buy-in by each type of armed actor, Andrew mentioned that his audience regularly points the finger at non-State armed groups (nsags) as the principal perpetrators of ihl violations – to which Jonathan replied that his audience points the finger in precisely the opposite direction. With that revelation, a seed was planted to pursue the conversation. The opportunity to do so was presented when University of Toronto’s Munk School of Global Affairs and the Canadian Red Cross hosted a 2017 ihl conference entitled Order in Chaos: the Evolution of Law Governing Armed Conflict. The discussion, upon which this contribution is based, was moderated by Carmen Cheung, Professor of Global Practice at the Munk School.2

1

What are the Main Differences between Engaging States on the One Hand and nsags on the Other Hand?

1.1 States – Andrew Carswell Engaging States on the laws of armed conflict is normally a straightforward task, although materially improving their international law compliance is * Andrew Carswell has worked as an ICRC Armed Forces Delegate in the Middle East, United States, Asia, and Africa; he is a former Canadian Forces legal officer and criminal prosecutor. Jonathan Somer is the Founder of Persona Grata Consulting, former Legal Adviser at Geneva Call, and Interim Senior Legal Adviser at the Canadian Red Cross in 2017/18. The views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are or have been affiliated with. 1 In accordance with its Geneva Conventions based mandate, the icrc engages with all parties to armed conflict including State armed forces and non-State armed groups regarding their ihl obligations. 2 The authors would like to thank Samit D’Cunha, Regional ihl Coordinator at the Canadian Red Cross, for his very helpful insights and revisions. The authors are responsible for the text. © koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_003

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more complex. Since the Peace of Westphalia, States have claimed sovereignty over their territory, domestic affairs and foreign policy, to the exclusion of external interference. They are the primary negotiators and authors of treaties, and they subscribe to them for reasons of sovereign self-interest. They also claim a monopoly over the use of force, which certainly includes criminalizing the activities of non-State entities that threaten peace and security, and denying them any sort of special legal status. The relative advantage of working with States is that they have without exception decided that it is in their national interest to become parties to the 1949 GCs.3 They benefit from a constitutional structure that gives ihl much of its substance and around which treaties are primarily designed. The legislative branch of government has the capacity to convert treaties into national statutes, giving their provisions teeth through the repressive mechanisms of criminal law. Inter-ministerial ihl committees examine the consequences of the law for the executive branch of government, including ministries of defence, foreign affairs, and health. Most importantly, the military chain of command is founded upon lawful orders backed by the constitutional authority of the State, and violations are policed and prosecuted in independent courts. Beyond the law, State armed forces define themselves relative to discipline. It is rarely difficult to persuade them that violations of the basic tenets of ihl amount to consequential breaches of discipline; and where a violation does take place, the hallmark of a professional force is its ability to react quickly, fairly, and decisively through discipline and justice. Non-State armed groups simply do not have the legal underpinnings, resources and infrastructure to institutionalize ihl to a similar degree. One important virtue of that constitutional foundation is civil society’s ­access to the State apparatus. States have ministries of defence and foreign affairs, embassies, even uniformed civil-military coordinators: it is not hard to track them down. The challenge for civil society is understanding how armed forces function (e.g. in a large military the main node for ihl compliance is its joint operations command). In contrast, armed groups normally operate in obscurity, and on territory beyond the government’s control. Merely interacting with them may represent a violation of the domestic law of the State on which they are operating. 3 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950).

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1.2 Non-State Armed Groups – Jonathan Somer Andrew has succinctly laid out many of the systemic factors that allow for State compliance. The problem is that most of these do not exist for nsags.4 I will start with the legal underpinnings. 100% of States are party to the GCs, while virtually 100% of nsags are not. They do not have the legal capacity to become party to international treaties. That is the function of the Westphalian structures noted by Andrew, meaning we have a different starting point when working with nsags. States have already committed at the political level to comply with ihl and we have an international system that, although weak on enforcement, provides a transparent framework for signalling these commitments, i.e., we know which States are parties to which treaties. With nsags, we have to generally pull the conversation back to first principles. Do they know about ihl? What do they think about it? If they show an interest, we can have a dialogue on the content of the law, and then enter into a conversation as to their willingness to comply. Although organisations such as Geneva Call provide mechanisms for nsags to signal their compliance with international norms such as the anti-personnel landmine ban and the protection of children, there is no global IHL mechanism where nsags can sign up.5 So the first benchmark is to get an understanding from political leadership as to their willingness to commit to international legal standards. But even if nsags accept their legal obligations, they do not have a seat at the law-making table. This domain is reserved for States. Most of us know from our own life experience what it feels like to be excluded from the playground. It creates animosity and plays into the victim mentality that many nsags perceive already. They feel that the system is rigged against them. So establishment of trust and developing a spirit of inclusion is a bigger challenge and of greater necessity than when engaging States. Accountability is another difference that is partly a result of the international legal framework, particularly the ability to prosecute own forces’ violations 4 Even the nomenclature is problematic. One should essentially distinguish between nonState parties to conflict (the political entity with international obligations), and “armed groups” (the military wing of a non-State party to conflict). However, for the sake of consistency, common practice, and ease of understanding, I will continue to use nsag to cover both the political and military components of non-State parties to conflict, except in cases where I specifically refer to the distinction. 5 Article 96(3) api allows the authority representing a people exercising its right to self-­ determination engaged in an armed conflict against a State to make a declaration of its willingness to comply with ihl. However, these criteria are almost impossible to meet. There is only one such declaration (Polisario Front) that has been accepted by Switzerland, the depository of the Geneva Conventions and Protocols.

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of ihl. Andrew pointed out above that the hallmark of a professional military force capable of complying with ihl is the ability to react through a justice system. The problem for nsags is that from an international law standpoint, uncertainty remains about their legal capacity to hold trials,6 and from a practical standpoint, even if such capacity exists, few nsags will have the technical capacity to live up to fair trial standards, a requirement of ihl. Andrew also noted the lack of infrastructure and resources. These are challenges to be sure, but they are more practical than systemic. And while nsags do not have embassies, they increasingly have websites. In fact, it could be said that the most advanced nsags have more governance capacity than some States. But generally the lack of institutionalized political and military governance makes compliance a greater challenge through the whole process of ihl integration and operational practice referred to below. 2

What Obligations Exist to Train Armed Forces on ihl and Disseminate it among the Population? Are These Obligations the Same for State and Non-State Forces?

2.1 States – Andrew Carswell The GCs require governments to “disseminate” the treaty text “as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction”.7 Similarly, customary ihl provides that “States and parties to the conflict must provide instruction in international humanitarian law to their armed forces”.8 These requirements appear to rely on the presumption that military instruction is tantamount to changing behaviour. In contrast, Article 86 api9 obliges armed forces to “prevent” breaches of the Conventions and Protocols, without defining that term. api contains the more versatile provision, since it is an obligation of result rather than means. As will be discussed below, mere 6 J. Somer, ‘Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts’, ejil Talk, 17 March 2017, available at: https:// www.ejiltalk.org/opening-the-floodgates-controlling-the-flow-swedish-court-rules-on-the -legal-capacity-of-armed-groups-to-establish-courts/. 7 Article 47 gci. 8 Rule 142 icrc Customary ihl Study. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) 1125 unts 3 (entered into force 8 June 1977).

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­instruction of ihl has more limited effect on military behaviour than was ­previously understood to be the case. However, the term “disseminate”, also used in the context of non-international armed conflict,10 may be read more broadly than mere instruction. api also requires States to ensure that legal advisors are available to advise commanders both on the application of the law and its instruction to their subordinates.11 2.2 Non-State Armed Groups – Jonathan Somer ihl obligations on nsags in this regard are weaker than for States. At the treaty level, the only relevant obligation comes from apii mandating that the Protocol “shall be disseminated as widely as possible”,12 a more ambiguous provision than Andrew outlined above for international armed conflicts. The icrc Study on Customary ihl recognises a difference in obligations between States and nsags when it comes to ihl dissemination, noting that this is one of only a handful of areas in which the icrc’s 161 customary ihl rules make a distinction between State and nsag obligations. The icrc determined, however, that no practice exists requiring nsags to have legal advisors available for military commanders, and therefore Rule 141 (see above) only refers to “States”. More surprising is that the icrc found that only States must encourage the teaching of ihl to the civilian population (Rule 143), while both States and parties to conflict must provide instruction to armed forces (Rule 142). Dissemination to civilian populations by nsags is of particular importance due to their inability to become party to international treaties such as the GCs as per above. Therefore dissemination not only informs the population affected by their actions of the rules of ihl, but points to an nsag’s acceptance of ihl. Those engaging nsags on ihl compliance encourage a public commitment to ihl as it demonstrates the taking of ownership, noting that the relationship between nsags and their constituencies is an important one. In fact sometimes constituencies pressure nsags towards non-compliance, e.g. accepting their children as fighters in order to enact revenge or encourage discipline in youth. It therefore may be incumbent on nsags intent on complying with ihl to be able to convince civilians that respecting ihl is central to the community’s aspirations.

10 11 12

Article 19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977), 1125 UNTS 609 (entered into force on 7 December 1978). Article 82 api. Article 19 APII.

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How to Persuade Parties of the Importance of ihl, and of the Necessity for Compliance? What are the Nuts and Bolts of Engagement?

3.1 States – Andrew Carswell This is an existential question for civil society organizations that seek to induce ihl compliance. It is easy for us to stand at the podium and speak of the virtues of the law to all who will listen. However, does this change the way armed forces actually behave? It is important to note from the outset that ihl is not the only relevant body of law governing military operations. The main substance of ihl only applies during armed conflict, whether international or non-international. We look to another body, ihrl, to determine what level of force a military may employ in situations of violence that do not amount to the conduct of hostilities in armed conflict. ihrl applies concurrently with ihl during armed conflict, and the two interact in accordance with the doctrine of lex specialis (e.g. the international law regulating a soldier’s use of force against a civilian protester, even on the territory of an armed conflict, remains ihrl). Deployed armed forces are also subject to the domestic law of their home country, and of the host country.13 The challenge, then, is assimilating those different and sometimes competing frameworks into the comportment of armed forces. The commonly-held notion that soldiers will abide by international law simply by virtue of their awareness of it is a fallacy. Merely broadcasting the text of the GCs amongst soldiers will have little effect on their compliance absent other factors compelling them to do so. This was one of the central findings of the icrc’s 2004 Roots of Behaviour in War, a psychological study that examined the drivers of ihl compliance.14 It found that soldiers’ autonomy of decision-making dissipates vertically through the chain of command (they act in accordance with orders); and horizontally through the group dynamics of a fighting unit. Accordingly, a successful civil society organization teaching ihl may, through its outreach, positively change the attitude of a soldier about ihl – it may even induce a genuine willingness to comply – but it will have little effect on actual behaviour. A change in comportment will only result from 13 14

Subject to a status of forces agreement that confers judicial jurisdiction to the home State, as is often the case. icrc, The Roots of Behaviour in War: Understanding and Preventing ihl Violations, available at: https://www.icrc.org/en/publication/0853-roots-behaviour-war-­understandingand-preventing-ihl-violations. See also the 2018 update of that study, The Roots of Restraint in War, available at https://www.icrc.org/en/publication/roots-restraint-war.

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s­ uccessfully modifying the orders that soldiers receive to reflect the applicable law. This means mapping the path of military orders, which may be traced back to strategic-level defence policy, doctrine as reflected in classroom education and field training, and the most proximate instruments guiding soldiers’ behaviour: the military decision-making process including the operations order and its appended rules of engagement.15 It also means providing forces with legally-compliant equipment. Soldiers do not even need to be aware of the law to comply with it: a tactical indirect-fire manual that accurately reflects the treaty obligations of distinction, proportionality, and precautions in attack will certainly be more effective than reproducing the underlying treaty rules verbatim. Operationally relevant ihl and ihrl need to be integrated accurately and thoroughly through these drivers of military behaviour. Equally important to such prophylactic measures is ensuring that when violations do occur, they are addressed through disciplinary or judicial sanctions that reflect international legal standards. All of this is hard work that demands both the capacity and top-down commitment of armed forces to ihl compliance, as well as continuous attention to detail. If State armed forces lack either capacity or commitment, systematically changing their behaviour is a non-starter. Then what? In important cases (e.g. where armed forces are at war), we may look to means of inducing commitment. That discussion takes place at the strategic and political levels, and involves persuading authorities that it is in their sovereign interests to abide by the commitments they undertook, albeit in more peaceful times, to adhere to. Reciprocity cannot be invoked as an excuse for violating the central tenets of ihl, but it is nevertheless a strong motivating factor for compliance: how would you like your soldiers to be treated upon capture, even by a nsag? Diplomatic interventions are also fundamental to emphasizing that political and economic isolation is an undesirable prospect. The most difficult cases are those where a government has decided that it is no longer in its best interest to abide by the law – indeed the rule of law has broken down. In those rare cases, the armed forces themselves may play an important role in countering the narrative of the executive with an appeal to ihl as a central pillar of discipline, in the absence of which they cannot claim to be professional. Furthermore, the international community then has an obligation to step in and employ all feasible and lawful measures to rectify the situation. This is where the craft of diplomacy is so vital, but so is military-to-military capacity building by allied States. 15

icrc, Decision-Making Process in Military Combat Operations, available at: https://www .icrc.org/en/publication/4120-decision-making-process-military-combat-operations.

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3.2 Non-State Armed Groups – Jonathan Somer When I was in university I had a summer job where I worked in a program with at-risk youth towards providing life and job skills. I learned it really did not matter how you intervene if the timing is not right. But at some point, at least for some of the youth, the timing was right and you could make a difference if you were present and engaged. If nobody is engaging in humanitarian dialogue with nsags, then nobody is there when that time comes. And generally that time does come at some point in a conflict lifecycle. So there is a value in building up a relationship of trust even if it is not bringing immediate results. While we cannot discount humanitarian motivation, particularly for nsags engaged in conflict with abusive regimes, compliance will be a function of the extent to which it is in a party’s interest to comply. At the root of this equation is legitimacy. Generally nsags have two constituencies that they are trying to satisfy. One is the international community while the other is their home community. One way to motivate nsags is to encourage ownership. As mentioned, nsags do not have the legal capacity to become party to international treaties. Geneva Call has come up with an alternative model by creating deeds of commitments that nsags can publicly commit to. These deeds of commitment are treaty-like instruments, and although they are not legally binding, they accomplish an important policy goal: the idea behind them is to create a community of nsags which take ownership of their obligations to comply with ihl. They agree not just to uphold the standards, but also to issue orders to military and political organs, to disseminate the commitments, to establish internal auditing, to agree to external monitoring, and to take remedial action when violations occur.16 Additionally, Geneva Call has established periodic meetings of signatories in which signatories and other interested nsags address challenges of implementation and share good practice, much in the same way that States parties to international treaties such as the Anti-Personnel Mine Ban Convention (apmbc) do as set forth in those treaties. Critics of this approach voice concern that it grants legitimacy to nsags. This approach may indeed grant some legitimacy to nsags, but as legitimacy is what nsags are often seeking, the question is to what degree should humanity suffer so that legitimacy remains within the exclusive domain of States? Yet genuine concerns persist, such as the risk that ihl ownership becomes the trojan horse by which nsags lay claim to authority. 16

See for example: Articles 8, 9 of the Deed of Commitment under Geneva Call for the Protection of Children from the Effects of Armed Conflict, available at: https://genevacall.org/ wp-content/uploads/dlm_uploads/2013/12/DoC-Protecting-children-in-armed-conflict .pdf.

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Of course an ownership methodology will not work with all nsags, as not all will seek legitimacy by satisfying domestic and international constituencies. Some will try to dominate domestic constituencies while eschewing international norms. As we have seen lately, some nsags may be demonstrative regarding their rejection of ihl through the posting or sharing of videos of beheadings on social media and other shocking behaviour clearly in violation of ihl. But just as we do not judge all States based on the behaviour of the worst violators, so too we should not prejudice our judgment of all nsags based on the actions of a few. nsags often signal a curiosity towards learning about ihl. They increasingly understand the “hearts and minds” value of ihl compliance, and the need to have a capacity to engage in dialogue on ihl. One photo that stands out for me presents the contents of the backpack of a rebel fighter. Besides communication tools, a gun, a religious text, and a book on leadership skills, the backpack contains a hard copy of a rebuttal from the nsag refuting UN accusations of violations. This suggests that some nsags recognize the need to become fluent in ihl in order to not cede the hearts and minds ground. In fact a term that has come into fashion is lawfare, described as the “use of law as a weapon of war”.17 The term is often used in a pejorative manner, as if only weaker parties to ­conflict – often nsags and not powerful States – use the law to degrade the enemy. Putting such hometown bias aside, there is clearly a humanitarian interest in arming nsags with the law. When nsags use ihl either to justify their own actions or put the spotlight on enemy behaviour, they invite that level of scrutiny on themselves. The moral high ground thus exacts a price. Unfortunately that price is greatly devalued when, as often happens, the discourse degenerates into rhetorical mudslinging with no real commitment to putting one’s money where one’s mouth is. At the end of the day, if ihl is to become an excuse for justifying whatever action State and nsags alike want to take, it has lost its value as a protective force. Yet civil society can play a role in taking advantage of nsags’ newfound capacity in ihl to engage them and hold them accountable. There are some anecdotal indications to show that nsags may react to international scrutiny. When the unsc initiated the Monitoring and Reporting Mechanism (mrm) on children and armed conflict,18 nsags started to pay attention. One nsag leader reported to me that upon hearing through bbc radio about the ban on child soldiers and the mrm, they realised it was something they need to take seriously. They convened their leadership to consider how 17 18

C.J. Dunlap Jr., ‘Lawfare: A Decisive Element of 21st Century Conflicts?’ 54 Joint Forces Quarterly (2009). For information on the mrm, see: www.mrmtools.org.

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both the world as well as their domestic constituencies would see them. Ultimately, they decided to adopt the ban in their own doctrine. At the nuts and bolts level, engagement then resembles the icrc integration cycle described above by Andrew, but here we must deal with limited ­capacities and resources. Expectations should be scaled down and tailored to the particular nsag. And while I agree with Andrew that ihrl is also relevant, the application to nsags is too complex to deal with here. 4

What are the Major Challenges in Engaging with States and nsags Respectively?

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

icrc, Interpretive Guidance on the Notion of Direct Participation in Hostilities (2009), available at: https://www.icrc.org/en/publication/0990-interpretive-guidance-notiondirect-participation-hostilities-under-international.

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the years many armed forces have adopted central elements of the guidance as part of their doctrine, although often reserving some room of manoeuvre. The key point is that the object and purpose of ihl must be preserved. We see armed forces increasingly claiming zero tolerance of civilian casualties as a matter of policy (i.e. beyond ihl requirements). However, in ihl, civilians are defined negatively as persons not forming part of the fighting forces, so a widening of the concept of membership in fighting forces and a loosening of the concept of direct participation in hostilities equates to narrowing the definition of protected civilian, with negative consequences for ihl’s intended beneficiaries. A related challenge is reconciling the language of ihl and ihrl with the language of military operations. Civil society ihl experts speak purely in terms of treaties and customary law, whereas armed forces have a completely separate vocabulary based in operations orders, rules of engagement, and standard operating procedures, to name a few. The two sides are bound to talk past each other unless they first acknowledge their different objectives, and then make an attempt to reconcile their vocabulary. What, for example, does “selfdefence” mean in the parlance of rules of engagement? Another major challenge is reconciling the language of international law with the politically-expedient language of counter-terrorism. Particularly since 9/11, non-State parties to armed conflicts have been labelled as terrorist organizations, meaning that mere membership is a criminal offence, let alone pointing a weapon at government forces. This might seem intuitive at first glance, but the consequence is that acts of war by armed groups recognized as lawful under ihl are criminalized. What then is the incentive for them to abide by ihl, knowing that lawful acts of war will result in a life sentence or worse? The term terrorist is completely unhelpful as a means of categorizing individuals under ihl. Indeed, ihl already prohibits acts aimed at terrorizing the civilian population. The material question is whether they have rights and obligations under the law, and indeed whether they may be lethally targeted by an opposing party in the first resort. Labelling IHL-compliant fighters as terrorists has the toxic effect of disincentivizing lawful behaviour. 4.2 Non-State Armed Groups – Jonathan Somer The most obvious challenge in engaging with armed groups is the lack of combatant status in non-international armed conflict. States did not agree to extend immunity to non-international armed conflict as they did not want to provide it for what they see as criminals who may be trying to upend the State itself. This goes to the very heart of State monopoly on the use of force. Therefore, while a combatant in an international armed conflict will be ­immune

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from prosecution for directly participating in hostilities, fighters in non-­ international armed conflicts may be prosecuted simply for doing so. A major incentive to comply has therefore been removed.20 A fundamental challenge is the lack of a consistent structure. For modern States, we know that for the most part there is a civilian government which has statutory control over armed forces. There will be a ministry of defence to which armed forces will be accountable. Essentially, there is a clear delineation between the State and its armed forces. There are indeed nsags who have structures similar to States, although less complex. They may be organized into distinct political and military entities, with constitutional separation of powers.21 Others are much more fluid with political and military roles interchanged. As such, engagement actors must do their homework to understand how each nsag is organized, how decisions are made, and how those decisions are enforced through the chain of command. A current challenge is the proliferation of nsags in a given conflict setting. In traditional non-international armed conflicts, one or two nsags were involved in armed conflicts with the State. We seem to be at a point in time where many of these conflicts are winding down, for example in Colombia (farc and eln), Philippines (milf), and Myanmar,22 while many more recent conflicts, such as Syria and Libya, involve hundreds of armed groups fighting the State. That leads to the question of whether there may be differences in the group cohesion behaviour of State and non-State fighters as per Andrew’s earlier discussion on the icrc Roots of Behavior in War study. Particularly in situations such as Libya and Syria, the cohesion incentive may not be so strong as individual fighters may shop their services around and be more like journeyman athletes that go where the best offers lie without allegiance to any particular group. In this case, individual survival/profiteering may be a greater incentive than belonging as the motivations would be different. Another significant challenge is the bias with which nsags perceive they are treated by virtue of their non-State status. We have already mentioned above that nsags cannot become party to the relevant treaties. One thing that 20

21 22

Nevertheless Article 6(5) apii states that: “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict […]”. See for instance: The 12 Points of the ndf Program, where it is stated that: “the New People’s Army is under the absolute leadership of the Communist Party of the Philippines”, available at: https://www.ndfp.org/about/the-twelve-points-of-the-ndf-program/. While there have been several ethnic armed opposition groups in in Myanmar/Burma, it is generally one or two from each particular ethnic group in conflict with the State.

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has resonated well with nsags is to be able to contribute to discourse on the relevance of ihl. As mentioned earlier, even though nsags are primary stakeholders when it comes to ihl compliance, they are not invited to the table when it comes to discussing compliance issues or developing the law. But recently there has been a trend towards consulting nsags on issues of humanitarian concern.23 So when we are able to talk to them and let them know that we can relay their concerns to “Geneva” (i.e. the international community), they respond positively. They engage with the law and share their views on its relevance for a range of issues, including, inter alia, detention and direct participation in hostilities. For example, nsags have discussed the difficulty of affording recognized places of detention as they fear this will prompt enemy attacks. They have also discussed the difficulty of dealing with enemy collaborators whose actions fall short of direct participation in hostilities, as they do not have the practical (and possibly legal) capacity to arrest and prosecute. Such discussions do not provide excuses for violating the law but are necessary in order to properly integrate compliance. nsags are also often critical of ihl rules that they consider to tilt the military necessity/humanity balance too far in the direction of military necessity. For example, they are often critical of the proportionality rule’s allowance for all but excessive civilian damage, and of the use of explosive weapons in populated areas in all but the most urgent cases of self-defence. There is also the challenge of access. Sometimes security situations make access impossible, and sometimes opposing States will not permit ­engagement and actors access to areas where nsags operate. And beyond what Andrew has mentioned regarding terrorist-labelling, there are counter-terror ­provisions which in some cases prohibit the process of engaging nsags on ihl compliance. Some States have outright bans on contact with nsags whom they list as terrorist organizations. While the US Supreme Court case Holder v. hlp received a lot of attention for potentially considering ihl engagement as

23

See for example: Geneva Call, In their Words: Six Armed Non-State actors Share their policies and Practice with regard to Protecting Civilians from Explosive Weapons, November 2017, available at: https://genevacall.org/wp-content/uploads/dlm_uploads/2017/12/ Explosive-Weapons.pdf; Geneva Call, In their Words: Perspectives of Armed Non-State Actors on the Protection of Children from the Effects of Armed Conflict, 2010, available at: https://www.genevacall.org/wp-content/uploads/dlm_uploads/2014/01/2010_GC_CANSA _InTheirWords; icrc, Safeguarding the Provision of Healthcare: Operational Practices and relevant International Humanitarian Law concerning Armed Groups, 23 June 2015, available at: https://www.icrc.org/en/publication/4243-safeguarding-provision-health -care-operational-practices-and-relevant-international.

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­ aterial support for terrorism – a felony in the United States24 – other jurism dictions in fact also have provisions that are equally restrictive. For example, the UK prohibits anyone from being present in a place where terrorist training takes place, and deems this act a strict liability offence (i.e. an offense not requiring an intent to further a terrorist act). This would make the home turf of nsags off limits to engagement actors who are under UK jurisdiction.25 So, all in all, the numerous pitfalls surrounding humanitarian engagement of nsags may give one cold feet. However the consequences of leaving nsags out in the cold are even less palatable. 5

How Do You Effectively Monitor State and Non-State Compliance?

5.1 States – Andrew Carswell The problem is that on the territory of an armed conflict, the very government structures designed to contain unlawful behaviour may begin to crumble. Nevertheless, humanitarian organizations such as icrc and the UN that continue to operate on the ground are able to collect allegations of misconduct and bring them to the attention of the relevant parties. The icrc in particular ­issues a “rappel du droit” to each party reminding them of their ihl obligations and, as the hostilities continue, it engages confidentially and bilaterally with the respective parties regarding credible allegations of ihl violations brought forward by the civilian population or observed during detention visits. It calls upon the party in question to investigate and ­modify its behaviour accordingly, and in this sense acts as an early warning system. However, ihl is primarily self-policing, and although international criminal tribunals including the icc may gain jurisdiction over war crimes, they tend to examine violations long after the fact. Despite the unequivocal obligation to respect ihl, the law contemplates that violations by individual soldiers may take place. It requires that such violations do not go unpunished by the armed forces to which the soldier belongs. In the event that key government structures falter as a consequence of armed conflict, the international community may turn to the network of compliance created by Article 1 common to the four GCs, which requires States to both “respect and ensure respect” of ihl. The external ensure respect obligation has been interpreted to mean that States must do everything feasible to 24 25

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). UK Terrorism Act 2006, Section 8.

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assist their allies in complying. It is helpful to remember that for virtually every party to the armed conflicts in the Middle East today, there is a State providing it with some combination of essential financial, military, and tactical support. If every one of those States were to make it a fundamental term of the contract of support that they comply with ihl, this could collectively transform the war’s effect on the population and restore a semblance of the rule of law. 5.2 Non-State Armed Groups – Jonathan Somer I was once at a major ihl conference where one expert took the stage and said in less direct words that nsags are the bad guys and should be treated as such, followed by another expert who said that actually States are not always such good apples. Neither presented any evidence to support his claim. Recent studies in the social sciences, however, have tried to fill this evidence gap.26 We cannot expect 100% compliance from parties to armed conflict, but we can expect them to take their compliance with ihl seriously. It is easy for an nsag, or a State for that matter, to refute any allegations of violations. This in fact is what often happens. But what is particularly impressive is when nsag leadership admit that they face compliance issues. This is the first step towards an honest discussion. For example, they may have issued orders to not recruit persons under 18 years of age into their ranks or use them in hostilities. I have heard many excuses when confronting commanders with allegations about non-compliance with such orders. For example, “his brother is part of our forces and he likes to wear the uniform when he comes to visit”. But what is impressive is when a commander admits that command and control in a particular unit is weak and, therefore, the orders are not being properly implemented. It is then that we know that our engagement is being taken seriously, and the discussion can move to preventative and remedial action. But we must be ­careful to grant the space to improve compliance rather than denounce at every chance. We certainly should not demand more of nsags than we do of States. From a practical standpoint, it is often difficult to monitor parties to conflict due to the security situation and restrictions on movement imposed by ­authorities. Beyond the structures noted by Andrew, there have been various initiatives for monitoring of compliance by local actors. While this may be more palatable to nsags than to be monitored by international actors, it may also create unacceptable risk for such local actors. 26

See for example: H. Jo, Compliant Rebels: Rebel Groups and International Law in World Politics (2015).

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6 Conclusion 6.1 Jonathan Somer My final thoughts link back to the notion that started this conversation, that being reciprocity. How motivating a factor is it for States? For nsags? Surprisingly, what I have seen from nsags is for the most part a fatalistic approach. They do not expect the opposing State to respect ihl, but this does not seem to have a significant impact on their own motivation to comply. As our discussion has shown, those nsags who care about ihl purport to comply for more strategic reasons towards the satisfaction of international and domestic constituencies. Therefore, what international actors can do is twofold. First, we can help ensure a robust civil society in areas where nsags operate in order to raise the reputational cost of non-compliance. This has to be done with due regard to the safety and security of local civil society actors. Second, we can promote ownership of ihl by nsags in their own practice and in international forums, while ensuring that both compliant and non-compliant behaviour is recognized. This means helping nsags to integrate ihl, bringing nsags in from the cold when it comes to ihl discourse, and ensuring that international mechanisms are not biased towards them. For those States providing military support to nsags, it means that such support must be contingent on ihl compliance, or in the case of violations, good faith pursuit of remedial measures. Again, such an approach is not a panacea to achieve universal ihl compliance by nsags. There will be those actors who are not motivated to respect ihl and will continue to pursue strategies of alienation of the international community and domination of local constituencies. For this reason, it is essential that we draw a line in the sand in order to give all nsags the clear choice and consequences of either siding with “terrorists” (in other words, those disregarding IHL) or siding with the rule of international law. 6.2 Andrew Carswell I share Jonathan’s conclusion that reputation sits at the heart of ihl compliance by all parties to armed conflict, State or non-State. States benefit from a constitutional architecture that potentially allows ihl compliance to more methodically take place. By the time armed conflict breaks out, whether on its own territory or on expeditionary operations, the State should through its systematic peacetime preparation be fully primed to abide by its international legal commitments, regardless of any notion of reciprocity. However, where State sovereignty is genuinely threatened, the political level of government does not always act predictably. Short-term political expedience may facilitate an acceptance of unlawful conduct that appears justified by the r­ hetoric

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of counter-terrorism. Nevertheless, this is precisely the moment at which level heads must prevail. First, the executive level of government must be reminded of the fact that the State voluntarily undertook its ihl obligations for reasons of sovereign self-interest. Second, the armed forces need to stand tall for discipline and the rule of law on which their legitimacy depends. Third, the international community has both a legal and ethical obligation to work through diplomatic and military channels to ensure that their allies take their legal obligations seriously, and remind them of the reputational cost of non-­ compliance. Lastly, the icrc’s real-time confidential feedback to the government regarding the effects of its conduct of hostilities on vulnerable persons should serve as a constant reminder of the strategic value of ihl compliance. One of the fundamental tenets of ihl is that the law should be applied without reference to political considerations. Equally, States should not conflate the punitive rhetoric of counter-terrorism with the protections foreseen in ihl. It is well understood that States do not respect the strategic motivations of their non-State enemies, but they should realize that ensuring respect for ihl in the largest sense means creating the conditions in which compliance by their adversary is viable.

Legislative Measures in International Humanitarian Law: A Jigsaw of Subtle Fragmentation Azra Kuci and Jelena Plamenac* Abstract ihl has often been deemed outdated and frozen inside a rigid framework, unable to provide an adequate response to the changing reality of armed conflict. The present article contests such a view, arguing that ihl is an expanding corpus juris with ­legal means to address these challenges. The authors identify two main currents of ihl ­expansion: implementing legislative measures, which comprise all measures taken at the national level to implement existing ihl rules; and developing legislative measures, which come into existence at the international or national level as a response to the specific challenges – including international treaties focusing on specific topics, customary rules, decisions of international tribunals, and national legislation and j­urisprudence. The authors further examine the effect of these measures on ihl, ­arguing that national implementing measures and developing measures taken at the ­international level have resulted in the advancement and strengthening of ihl rules, as well as in an increase in the protection afforded by these rules. By contrast, the authors conclude that developing legislative measures adopted by some States at the national level are inconsistent with the main principles of ihl, and have an inhibiting effect on compliance with ihl rules.

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

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_004

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on winning on the battlefield.1 Striking a balance in such a dynamic context is a demanding task that requires parties to the conflict to be equipped with adequate legal solutions for a particular emergency context. Legislative measures serve as necessary tools for enabling this balancing process. This essay focuses on legislative measures that States use at the national level to honour obligations prescribed in existing ihl treaties, to which they are parties, and those measures taken at international and national level to fill in existing or perceived legal lacunae. Its aim is to reveal the fragmentation of States’ legislative response to international legal requirements, as well as to the reality of modern warfare and challenges that the shifted paradigm of armed conflicts in the current state of international affairs has brought about. This response is examined as a twofold legislative process. The first part of the response manifests itself in States’ legal systems through the implementation of existing conventional and customary ihl rules. Thus, this category of legislative measures encompasses those that derive from obligations under conventional and customary ihl that States agreed to implement in their domestic and international affairs (implementing legislative measures).2 The other part of the process originates in the national legal space and progresses to the international sphere, where transferred national legislative measures influence the development of new ihl rules. This second category encompasses legislative actions that States have undertaken to develop the law, be it for humanitarian concerns, to resolve legal uncertainty, or to protect their national security interests3 (developing legislative measures). A legislative measure is understood in its traditional meaning as an expression of State sovereignty to create law. No equivalent legislative authority to a State exists at the international level, and therefore acts and instruments created internationally are not legislative measures sensu stricto. They are instead sources of international law,4 and transposed to its humanitarian branch, include core ihl treaties (also known as Geneva and The Hague law), as well as other international treaties containing provisions applicable in times of armed conflict, customary rules, fundamental humanitarian principles, and relevant international jurisprudence. Legislative expressions of non-State armed a­ ctors, 1 J. Pictet, ‘The Formation of International Humanitarian Law’, 25(244) irrc (1985), at 20. 2 The icrc database on national implementation of ihl was an immensely useful tool in finding and accessing relevant implementing legislative measures. 3 See Section 4 below. 4 Article 38 of the Statute of the International Court of Justice (1945), 33 unts 993 (entered into force on 24 October 1945). This article describes international treaties, international customary law, general principles of law, judicial decisions, and the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law.

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as equal bearers of rights and duties under ihl, are left out from the current analysis owing to its limited scope. A study into legislative powers of these actors, in particular State-like armed groups with a capacity to adopt and implement comprehensive codes of conduct and run quasi-judicial institutions, would contribute to a more comprehensive understanding of the legislating process in this regard.5 2

Critical Perspective

While all parties to the core ihl instruments have adopted some implementing legislation on ihl, no standardised approach exists among them in the choice of legislative measures to execute such implementation. This is because relevant ihl provisions leave it to States to choose the procedure and appropriate acts to enforce treaty requirements within their national systems. The implementation procedures for international treaties differ between States with monist from those with dualist legal systems.6 In addition, the selection of appropriate legislative measures largely depends on internal factors, such as the political system of a particular State, economic interests, historical, religious, and socio-cultural traditions, as well as on specific requirements of the implementing rule, where applicable. These factors have also occasionally led States’ discretionary right to legislate within their sovereign space towards arbitrary decisions on whether to 5 Such State-like armed groups include those in: Afghanistan, Eastern Ukraine, Iraq, South ­Ossetia, and Syria. See also: M. Sassóli, ‘Implementation of International Humanitarian Law: Current and Inherent Challenges’, 10 yihl (2007), at 65. 6 Monist systems accept that, if a State has freely consented to an international treaty by following established ratification procedures, such treaty automatically becomes part of its ­national law and, as such, is applicable within the State’s jurisdiction. While most provisions in the GCs and APs are self-executing, for those that are not, implementing legislation must be adopted also in monist States in order to give them effect (e.g. criminal legislation on punishing war crimes, rules on the use and protection of the red cross and red crescent emblems, and the rules on fundamental rights for protected persons). Dualist systems, however, perceive international law as a distinct body of law, created among States that requires separate implementing legalisation to domesticate international norms prior to their enforcement before judicial and other national institutions. Once incorporated into the domestic system, States are obliged to align national legislation with the duties arising from an international treaty. This obligation is based on a general principle of international law, as expressed by the pcij, according to which “a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken”. See: Advisory Opinion, Exchange of Greek and Turkish Populations, (ser. B) No. 10, pcij, 21 February 1925, at 20.

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strengthen the existing humanitarian norms with valid legislative solutions or, on the contrary, to depart from their purpose, by interpreting these norms in favour of domestic political and economic interests. Besides apparent national normative policies to this effect, this State-centric paradigm is also reflected in a higher compliance quality of legislative measures that enforce protection rules within a legislator-State’s territory, than those measures that regulate its armed forces’ conduct abroad. Inconsistences in the implementation of ihl are noticeable not only among individual States, but also between groups of States belonging to different regions of the world. Observed from a regional perspective, for instance, most European countries have enacted laws criminalising grave breaches and other serious violations of ihl, while only a few Arab countries have such criminal repression rules in place.7 In sum, while the choice and purpose of legislative measures within a State’s sovereign space can advance the compliance with and the development of ihl, an increasing number of fragmented and isolated legislative processes could also erode the law and decrease its protection. A State-brokered international monitoring mechanism, with the mandate to unify legislative behaviours and provide advice and guidance to relevant actors on best legislative practices could be a solution to this legislative fragmentation. 3

Implementing Legislative Measures

ihl treaties and in particular the GCs8 and their APs9 contain a multi-layered system of obligations that require States to ensure their implementation at the national level. Common Article 1 GCs imposes a universal duty upon States 7 Jordan, Sudan, and the United Arab Emirates have criminalised serious ihl violations domestically. See for instance: Sudan, Criminal Procedure Act (2009); uae, Federal Law No. 12 (2017). 8 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950). 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977), 1125 unts 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (1977), 1125 unts 609 (all entered into force on 7 December 1978).

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to respect and to ensure respect for over 600 provisions of the GCs and their APs in all circumstances, and arguably the entire corpus of ihl.10 Legislative measures are among the most effective tools available to States to fulfil this obligation, and in particular to oblige persons within their control to respect and apply ihl rules.11 Under the umbrella of the duty to “ensure respect”, ihl treaties also contain explicit requirements for States to put in place adequate legislative measures for their application within the national system, as well as in their mutual relations. To ensure better implementation of ihl, most of these measures should be adopted and effectively disseminated in times of peace among all persons concerned, including the armed forces and law enforcement agencies.12 In that regard, States adopt separate laws, or legal amendments to existing legal texts, executive decrees, and military manuals. The adoption of military manuals is especially important for more complex rules such as the rules on the conduct of hostilities, where the terms “military necessity”, “proportionality”, and “precautions” are explained in more detail to be understood and internalised within armed forces.13 3.1 National Legislative Measures Enforcing ihl Rules States usually opt for specialised laws, legislative acts, and executive decrees, to enforce technical provisions, such as those on the protection and definition of protected persons; National Red Cross and Red Crescent and other aid societies 10

11

12

13

Common Article 1 GCs; Articles 1(1), 80(1) api. According to the icrc, Common Article 1, codifying the customary rule pacta sunt servanda, applies to “the entire body of international humanitarian law binding upon a particular State” (referring to the icrc study on customary ihl). See: 2016 icrc Commentary gci, paras. 123, 126. This general obligation of ensuring respect for the execution of GCs and APs, through adoption of adequate measures, is particularly emphasised when States are parties to armed conflict. See: Article 45 gci; Article 46 gcii; Article 80 api. States have an obligation to notify each other through a depositary, or in case of an armed conflict through the protecting powers, about the laws and regulations that they have adopted with the aim to ensure the application of GCs and api. See: Article 48 gci; Article 49 gcii; Article 128 gciii; Article 145 gciv; Article 84 api. Article 1 of The Hague Convention (iv) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning Laws and Customs of War on Land (1907) (hereinafter The Hague Regulations of 1907); Article 47 gci; Article 48 gcii; Article 127 gciii; Article 144 gciv. E.g. Military Manual (2005) of the Netherlands provides examples of indiscriminate attacks. See: J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. ii (2005), at 297–335; the UK Law of Armed Conflict Manual (2004) explains the purpose of advanced warnings to civilian population. See: J.-M. Henckaerts, L. ­Doswald-Beck, Customary International Humanitarian Law, Vol. ii (2005), at 400–413.

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and protected objects;14 protection and use of distinctive emblems, signs, and symbols;15 creation of hospital and safety zones and localities;16 detention and related procedural and judicial guarantees;17 procedures for searching missing persons;18 burial procedures;19 and the creation of entities such as the National Information Bureau.20 Some legislative solutions enforce special protection for specific categories of protected persons, including medical and religious personnel, and women and children. In particular, States have increasingly legislated on the protection afforded to children in armed conflicts by, inter alia, regulating the minimum age requirement for the recruitment into national armed forces, p ­ roviding safeguards for reintegration of child soldiers, and excluding the capital punishment for persons under the age of 18.21 Yet, legislation differs on the scope of such special protection, depending on the international instrument that States have chosen to implement domestically. While some have extended the protection from enlistment and conscription to persons under the age of 18 by implementing the Optional Protocol to the Convention on the Rights of the Child on involvement of children in armed conflict,22 other States have enacted laws prohibiting recruitment and participation in hostilities of children

14 15 16 17

18

19 20 21 22

Articles 24–26 gci; Articles 13, 22–25, 39(2), 42(3) gcii; Articles 4, 17 gciii; Articles 4, 18, 20, 25, 27, 63 gciv; Article 8, 16–18, 24–31, 44, 50, 61–67 and Annex i, 71 api. See for instance: Armenia, ‘Law No. HO-309 on Civil Defence’ (2002). Articles 36, 38–44, 53, 54 gci; Articles 39, 41–45 gcii; Articles 18, 20–22, 56 gciv; Articles 8, 18, 23, 38, 39, 85 api and Annex i; apiii (which concerns the adoption of an additional distinctive emblem composed by a red crystal on white background). Article 23 gci; Article 14 gciv. Articles 12–21, 49–57, 69–71, 79, 82–108 gciii; Articles 31, 32, 37, 41–43, 51, 68–78, 95, 110, 117–126 gciv; Articles 11, 45, 75 api. States should also ensure that domestic legislation is in line with Articles 4–6 apii. See for instance: Australia, ‘Geneva Conventions Act’ (1957); Barbados, ‘Geneva Conventions Act’ (1980). Article 26 gciv; Article 33 api. See for instance: Bosnia and Herzegovina, ‘Law on Missing Persons’ (2004); Colombia, ‘Law on the Creation of a Search Mechanism for Missing Persons’ (2005); Egypt, ‘Missing Persons Law’ (2006); Guatemala, ‘Presidential Decree on the Creation of a Temporary Commission on Missing Persons’ (2006). Article 20 gcii; Article 120 gciii; Articles 129–130 gciv; Article 34 api. Article 122 gciii; Article 136 gciv; see also: Articles 16–17 gci; Article 19 gcii. See for instance: Argentina, ‘Decree creating the National Information Bureau’ (2004); France, ‘Circular Providing for a National Information Bureau Relating to Prisoners of War’ (2010). See for instance: Chad, ‘Presidential Ordinance No. 001/PR/2014 on Child Soldiers’ (2014); El Salvador, ‘Decree No 45 of 6 October 2004 Creating the Inter-institutional Commission of Search for Missing Children as a Consequence of the Armed Conflict’ (2004). E.g. Belarus, ‘Law of the Republic of Belarus no. 223-Z on Introducing Amendments and Additions to the Criminal Code of the Republic of Belarus’ (2007).

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under the age of 15 years, in accordance with the provisions of the Convention on the Rights of the Child and the APs.23 States also use legislative measures to place objects of a particular value to local communities, such as medical and education facilities and cultural property, under enhanced protection applicable in times of armed conflict. Specialised laws, executive decrees, and military manuals are among such measures.24 Those States that have adopted laws on national cultural heritage provide safeguards for cultural property from destruction, alternation, and pillage. These safeguards are achieved through a clear definition of national cultural heritage and detailed implementation of the 1954 The Hague Convention on Cultural Property and its Protocols, as well as other specialised treaties, such as the Convention on the Means of Prohibiting the Illicit Import, Export, and Transfer of Ownership of Cultural Property of 1972.25 These laws regulate the procedures for granting special or enhanced protection under the 1954 Convention or its Second Protocol; the positioning of the distinctive emblem on protected cultural property; and the prohibitions on the use of such property for military purposes (without exception by national armed forces), or on the location of legitimate military targets in its immediate surroundings.26 To enhance this protection, a number of States created national bodies responsible for implementing the obligations arising under the 1954 Hague Convention and its Protocols in armed conflict.27 To limit the harm caused to persons and objects caught in armed violence, States have further imposed restrictions on warring parties in the choice of means and methods, by which they conduct their military operations. This is done through the implementation of ihl instruments prohibiting certain types of weapons. These instruments enshrine the fundamental principles 23 24 25

26

27

Article 38(2) Convention on the Rights of the Child (1954), 1577 unts 3 (entered into force on 2 September 1990); Article 77(2) api; Article 4(3)(c) apii. E.g. US, ‘Child Soldiers Accountability Act’ (2008). E.g. National laws on the use of red cross, red crescent and/or red crystal emblems, regulate the placement of distinctive emblems on places designated to collect and treat the wounded and the sick, affording them special protection from attack. See: Article 19 gciv. Article 2 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), 249 unts 240 (entered into force on 7 August 1956) (hereinafter The Hague Convention of 1954). See also: Articles 27, 56 The Hague Regulations of 1907; Article 53 api; Article 16 apii. Articles 4, 8 The Hague Convention of 1954; Article 11 Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999), 38 ilm 769 (entered into force 9 March 2004) (hereinafter Second Protocol to The Hague Convention of 1954). E.g. Armenia, Azerbaijan, France, and Poland.

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of d­ istinction, proportionality, and precaution, as well as the principle of ­humanity incorporated in the prohibition of causing superfluous injuries or unnecessary suffering.28 Following the St. Petersburg Declaration of 1868, The Hague Declarations of 1899 and 1907, and the Geneva Protocol of 1925, a series of international conventions were also adopted after the Second World War, to prevent the proliferation of modern weapons which are contrary to ihl requirements. These include the trinity of treaties prohibiting weapons of mass destruction: biological weapons,29 chemical weapons,30 and nuclear weapons,31 as well as conventions on certain conventional weapons, anti-­ personnel land mines, and cluster munition. Each of these treaties requires States parties to adopt measures that would ensure the prohibition and prevention of direct actions related to the use, development, production, purchase, retention, stockpiling, transfer of a particular weapon, as well as indirect actions of providing assistance, encouragement or inducement of direct actions.32 In addition, such measures should regulate international verification procedures of compliance with the treaty at the ­national level.33 States have implemented disarmament conventions either by (i) enacting specific legislative measures that combine implementation obligations;34 (ii) taking partial measures of amending existing laws, mostly in relation to 28 29 30 31 32

33 34

Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, 8 July 1996, para. 78. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1972), 1015 unts 163 (entered into force on 26 March 1975) (hereinafter Biological Weapons Convention). Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1993), 1974 unts 45 (entered into force on 29 April 1996) (hereinafter Chemical Weapons Convention or cwc). Treaty on the Prohibition of Nuclear Weapons (opened for signature on 20 September 2017). Article 4 Convention on Biological Weapons; Articles 1, 6 Convention on Cluster Munitions (2008), CCM/77; Articles 1, 9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997), 2056 unts 241 (entered into force on 3 January 1999), (hereinafter Antipersonnel Mine Ban Convention or Ottawa Convention); Article 14 of the Protocol on Prohibition or Restrictions on the Use of Mines, Booby- Traps and Other Devices (as amended on 3 May 1996) (hereinafter Protocol ii to the Convention prohibiting Certain Conventional Weapons of 1980), 2046 unts 93 (entered into force on 3 December 1998). Article 7 cwc; Article 7 Convention on Cluster Munitions. Brazil, ‘Law No. 11.254 on Administrative and Penal Sanctions in the Case of Activities Prohibited by the Convention on Chemical Weapons’ (2005); France, ‘Law on Biological or Toxin Weapons’ (1972); Germany, ‘Act Implementing the Ottawa Convention on antipersonnel landmines’ (1998).

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

36

37 38 39 40 41

E.g. El Salvador, ‘Amendments to the 2005 Penal Code (implementation of Article 9 of the Ottawa Convention)’ (2005); Ethiopia, ‘Proclamation No. 414/2004 to Amend Criminal Code’ (2004); Guinea, ‘Law on the Criminal Code’ (2016) (its Article 848 prohibits chemical, small arms and light weapons, antipersonnel mines and cluster munitions). Out of 102 State parties, 27 have enacted specific legislative measures in accordance with Article 9 Convention on Cluster Munition, 24 are in the process of adopting or amending the existing laws, while 32 assessed that the existing domestic laws fulfil their treaty obligations. See: International Campaign to Ban Landmines–Cluster Munition Coalition, ‘Cluster Munition Monitor 2017’, June 2017. Ibid, at 37. The UK, ‘The Export Control Order (former)’ (2008); New Zealand, ‘Customs Export Prohibition Order’ (2011). Article 14 Arms Trade Treaty (2013), 52 ilm 988 (entered into force 24 December 2014) (hereinafter att). Article 6 att. New Zealand, ‘International Treaty Examination of the Arms Trade Treaty’ – Report of the Foreign Affairs, Defence and Trade Committee, July 2014. To facilitate the att

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Since the majority of ihl treaties require State parties to penalise breaches of their provisions, the criminal repression of ihl violations is one of the most widely legislated issues.42 Over 160 States have adopted various measures, such as criminal codes and criminal procedure codes, military criminal codes, legislative acts, amendments to existing laws, regulations, executive decrees, and orders, to effectively prosecute and punish ihl violations. The GCs and APs i and iii explicitly require that States enact penal sanctions for grave breaches of these treaties.43 In this regard, criminal procedure codes of State parties must also regulate the search of persons suspected to have committed a grave breach, their prosecution on the basis of universal jurisdiction, and, where appropriate, extradition of such persons to a State which would have a prima facie case.44 Similar obligations to adopt legislative actions for successful prosecution and extradition are required under The Hague Convention on Cultural Property and its Second Protocol, as well as certain weapons conventions.45 Various States have also passed legislation that criminalises breaches other than the grave breaches as war crimes, as well as crimes against humanity and genocide. This has been achieved through amendments and legislative acts incorporating relevant provisions of the icc Statute in national criminal law,46 or by enlisting particular offences in domestic criminal codes.47 Some States have adopted a mixed solution, such as Fiji where the Crimes Decree of 2009

42 43

44 45

46 47

i­mplementation in Pacific countries, New Zealand promoted a model law, ‘Arms Trade Treaty: Model Law’. Article 50 gci; Article 51 gcii; Article 130 gciii; Article 147 gciv; Articles 11(4), 85–86 api. See for instance: Geneva Conventions Act of Australia (1957), Barbados (1980), Botswana (1970); Belgium, ‘Law on the Repression of Serious Violations of International Humanitarian Law’ (1999); Cook Islands, ‘Geneva Conventions and Additional Protocols Amendment Act’ (2011) (inter alia, establishing as a grave breach of Protocol Additional iii any “misuse of the third Protocol emblem amounting to perfidious use in the meaning of Article 85 paragraph 3 of Protocol Additional i”); Cyprus, ‘Geneva Conventions Ratification Law of 1966’, and ‘Law on the Ratification of Additional Protocol i to the Geneva Conventions’ (1979). Article 49 gci; Article 50 gcii; Article 128 gciii; Article 145 gciv; Article 84 api. See also: J.-M. Henckaerts, Doswald-Beck, supra note 13, at 568–611. Article 28 The Hague Convention of 1954; Articles 15, 21 Second Protocol to The Hague Convention of 1954. See also: Article 6 Convention on Cluster Munition; Article 9 Ottawa Convention; Article 14 Protocol ii to the Convention prohibiting Certain Conventional Weapons of 1980. E.g. Argentina, Australia, Austria, Bosnia and Herzegovina, Burkina Faso, Cote d’Ivoire, Croatia, Cyprus, Denmark, Finland. E.g. Angola, Armenia, Bangladesh, Belarus, Burundi, Colombia, Congo, Chile, Gambia. Some States, however, have not explicitly included international crimes domestically, e.g. Bolivia, Bahrain, Cameroon, Ecuador. Among these States, some followed a more progressive approach of overcoming a distinction between war crimes committed in

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amended the 1945 Penal Code to enact crimes against humanity and genocide, while grave breaches as war crimes are criminalized under a separate Geneva Conventions Promulgation of 2007 and its amendment of 2009.48 In addition, some States criminalised violations of ihl through adopting specialised laws or revising legislation that emphasised the criminalisation of prevailing violent acts in their particular historical contexts.49 3.2 Implementing Legislative Actions beyond ihl Requirements The scope of legal measures taken to implement the same treaty obligations differs across a number of domestic legal systems. A good example of this inconsistency is found in the comparison between national laws of some States whose armed forces participate in military coalitions jointly with States nonparties and those States that have no such involvement. The participatingStates’ legislative solutions, for instance, tend to alter treaty obligations of weapon conventions to prohibit indirect actions (such as providing assistance in the use, transfer, and stockpiling of cluster munitions or land mines), by allowing exceptions in situations when members of their armed forces are involved in joint military operations with non-State parties, which might be engaged in acts prohibited by the Convention. States that have adopted such solutions include those that regularly deploy their troops in joint operations with the US, a non-signatory State which has previously used cluster munitions in its overseas operations.50 Other States, such as Samoa, on the other hand, went a step further to enhance the prohibition by adopting progressive legal measures that extend the personal scope of application to corporations and investment funds.51

48 49

50

51

i­ nternational armed conflicts and those committed in non-international armed conflicts (e.g. Armenia, Belarus). Fiji, ‘Penal Code, 1945 (as amended by Penal Code (Penalties) (Amendment) Act 2003’ [Act. No. 7 of 2003]); ‘Geneva Conventions Promulgation 2007’; ‘Geneva Conventions (Amendment) Promulgation 2009’. E.g. Argentina, ‘Law on Enforced Disappearance’ (1994); Brazil, ‘Law No. 9.455 on the Crime of Torture’ (1997); Burkina Faso, ‘Law on Prevention and Repression of Torture and Similar Practices’ (2014); Colombia, ‘Law on Genocide, Forced Disappearance, Forced Displacement and Torture, and Making Certain other Provisions’ (2000) and ‘Law on the National Statute on Kidnapping’ (1993). See for instance: Australia, ‘Criminal Code Amendment (Cluster Munitions Prohibitions) Act’ (2012); Canada, ‘Bill C-6, An Act to Implement the Convention on Cluster Munitions’ (2013); France, ‘Act for the Elimination of Cluster Munition’ (2010); UK, ‘Cluster Munitions (Prohibition) Act’ (2010). The US, for instance, used cluster munition in 2003 in Iraq and, in 2009, in a strike in Yemen. See: Landmine and Cluster Munition Monitor, ‘United States – Cluster Munition Ban Policy’ (last updated: 8 August 2016). Samoa, ‘Cluster Munition Prohibition Act’ (2012).

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Similar normative discrepancies are also found in relation to the att assessment standards for national export control, which seem insufficiently ­robust to be able to ensure full compliance with Common Article 1 GCs. The UK has applied a “clear risk” standard in granting arms trade licences to external partners, including Saudi Arabia, despite numerous credible reports that this country allegedly committed serious violations of ihl in the context of the armed conflict in Yemen.52 The UK High Court confirmed the government’s a­ ssessment that there was no clear risk that exported arms to Saudi Arabia would be used for committing serious ihl violations, acknowledging that such decisions are based on a balancing assessment of various “complex and ­competing factors”.53 The Dutch Parliament, however, had a different reaction to the n ­ ational government’s decision to export weapons to Saudi Arabia under the same standard. In 2016, it enacted legislation that banned weapon export to this country, because of allegations of repeated violations of ihl in Yemen.54 The nature and scope of implementing measures depends not only on the foreign policy context, but also on wider political, historical, and socio-­cultural factors within a given society, as mentioned above. This is reflected in the practice of States to legislate components of criminal repression not explicitly referred to in ihl treaties, but which respond to internal political matters or can contribute to national reconciliation in the aftermath of an armed conflict. These include reparations and similar measures for victims of ihl violations;55 legislative acts and amendments implementing criminal justice aspects agreed in a peace process;56 immunities, pardons and amnesties for ihl violations;57 52 53 54

55

56 57

The UK, ‘Consolidated EU and National Arms Export Licensing Criteria’, criterion 2(c) (25 March 2014). Judgment, R (on the application of Campaign Against the Arms Trade) v. The Secretary of State for International Trade and Interveners, Case No. CO/1306/2016, High Court of Justice, 10 July 2017, paras. 209–210. Alleged grave human rights violations in Saudi Arabia were also among the reasons for the ban, Jurist, ‘Dutch Parliament Approves Ban on Arms Export to Saudi Arabia’ (16 March 2016). See also: European Parliament, Res. 2515 on the humanitarian situation in Yemen (25 February 2016). Belgium, ‘An Act to Provide New Measures for Victims of War’ (2003); Colombia, ‘Law No. 1719 on Access to Justice and Other Matters for Victims of Sexual Violence and Especially of Sexual Violence Related to the Armed Conflict’; ‘Law on Attention, Assistance and ­Integral Reparation to the Victims of the Internal Armed Conflict and other Provisions’ (2011). E.g. Colombia, ‘Legislative Act Establishing Legal Instruments of the Transitional Justice within the Framework of Article 22 of the Constitution and other Provisions’ (2012). E.g. Colombia, Argentina, Chad, Congo, Cote d’Ivoire, El Salvador.

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and the creation of special bodies for the investigation and prosecution of ihl violations.58 Non-State Parties’ Contributions to the Protective Scope of ihl Treaties All States, irrespective of their accession status, remain bound by the duty to ensure respect for ihl at all times under Common Article 1 GCs. Beyond this general obligation, however, State parties to ihl treaties, such as the weapon conventions, are required to comply with specific technical duties through their legislative measures, unlike States non-parties. Yet, even if a State decides not to consent to a particular ihl treaty, it can still enact domestic legislation that limits prohibited acts and thus contribute to the object and purpose of that treaty. Canada, for instance, although not a party to the att yet, is in the process of adopting a more rigorous law which would fully implement the assessment criteria as provided in Article 7 att.59 The US also, while not a party to the Conventions on Antipersonnel Landmines and on Cluster Munitions, has previously partially contributed to a disarmament process by adopting an executive directive placing a moratorium on the assistance, transfer, or sale of landmines and cluster munitions, except for cluster munitions that have a 99 percent or higher tested rate and are guaranteed to be used only against military objectives.60 In addition, by imposing legal measures prohibiting acts of production, transfer, and use of mines, ­booby traps, and other explosive devices as envisaged under the 1998 Amended Protocol ii to the ccw, the US overcame the legislative gap of not joining the ­Ottawa Convention to a certain extent.61 3.3

58

59 60

61

E.g. Argentina (national investigative committee), Cambodia (Extraordinary Chambers for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea); Central African Republic (Special Criminal Court); Chad (Special Criminal Court of Justice to try Hissene Habré); Croatia (War Crimes Committee). House of Commons of Canada, Bill C-47, An Act to Amend the Export and Import Permits Act and the Criminal Code (Amendments Permitting the Accession to the Arms Trade Treaty and other Amendments) (31 March 2017). The US, ‘DoD Policy on Cluster Munitions and Unintended Harm to Civilians’ (19 June 2008); ‘Consolidated Appropriations Act’ (2008), 121 stat. 2336, Sec. 646. The same decision also envisaged a plan to remove all the remaining cluster munition from the US arsenal by 2019. This plan, however, has been reversed in December 2017 with the US military’s revised policy on cluster munition by which it has been decided to retain older cluster munition, until it is replaced with more precise munitions in future, without indicated timeframe when such replacement could end. The US, ‘War Crimes Act’ (2006), para. 2401.

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Developing Legislative Measures

While implementing legislative measures are by their nature confined to the State level, developing measures encompass also those legislative acts that influence the formation of ihl rules at the international level. Most of these domestic instruments have been adopted and enacted sporadically and spontaneously, creating fragmentation in the development process in the last half a century after the adoption of the GCs and their APs. These responses mainly manifested themselves at the international level, through the adoption of ihl treaties regulating specific aspects of armed conflicts, the growth of international jurisprudence that expanded and reinforced ihl rules, as well as through the crystallization of certain ihl rules into customary international law. At the national level, responsive actions materialised in legislative measures aimed at interpreting certain ihl notions pursuant to national security policies. 4.1 Developing Legislative Measures at the International Level 4.1.1 “Specialised” ihl Treaties Weapon conventions illustrate the manner in which the two forces of implementation and development of the law work in synergy. The core ihl treaties set basic rules under which parties to the conflict are limited, in their choice of means and methods of warfare, by fundamental ihl principles and, in particular, the prohibition to cause superfluous injury or unnecessary suffering, as mentioned above.62 They thus define a general legal framework which is sufficient to pave the legislative way for future rules on the conduct of hostilities. The law is not, however, fully able to foresee sufficiently in advance the technological developments in the military industry and new methods of warfare that may be devised, so as to be able to envisage all-encompassing solutions at a given point in time.63 To reinforce these rules and to address certain weapons viewed to be of particular concern to the international community, such as weapons of mass ­destruction, States enforced national legislative measures which in turn prompted the adoption of specific international treaties to prohibit or restrict their use. In the context of the nuclear weapons prohibition, such States include Austria, Mongolia, New Zealand, Norway, and the Philippines, which enacted domestic legislation (banning the use in and transfer to their territory of nuclear weapons) long before such a prohibition was formulated at the

62 Article 35 api. 63 Pictet, supra note 1.

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­international level.64 These legislative measures (together with the political will in some States and strong advocacy campaigns led by civil society organisations) had a significant impact on the materialisation and adoption of the Treaty on the Prohibition of Nuclear Weapons in 2017, which reinforced the basic rules of api on the conduct of hostilities in its Preamble.65 Similar legislative measures imposing a comprehensive ban on these weapons are naturally absent in the national legal systems of nuclear weapon States. The States with nuclear capacity, which are parties to api at the same time, even made reservations to this treaty, stating that their rules regulate only conventional weapons and not nuclear weapons.66 Yet, national security interests pressured some nuclear weapon States to at least partially enact the prohibition, by limiting its personal scope to non-State actors through their counter-terrorism legislation.67 Article 36 api also creates a solid foundation to prohibit or limit the use of weapons that would violate fundamental principles of ihl. In particular, it creates the obligation for States to adopt a mechanism for assessing the lawfulness of a weapon or technology, before it is developed or acquired for use by States’ armed forces.68 This rule, as well as the possibility to adopt specific 64 65

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R. van Riet, ‘National Legislative Measures to Further Nuclear Abolition’, World Future Council, March 2012. The transfer of developing national measures into the international legislative space has been supported by the increasing involvement of civil society and its influence on the process leading to the adoption of these treaties. Non-governmental organisations entered the law-making process in the 1990s, with a transnational campaign to ban antipersonnel landmines, when around 1400 of them from over 90 countries participated in the public campaign. It further continued with initiatives that resulted in the adoption of convention on the cluster munition ban. See for instance: Human Rights Watch, ‘International Campaign to Ban Landmines’, 1999. See for instance: The UK, ‘Declaration’ (2 July 2002). See also: The UK, ‘Manual of the Law on Armed Conflict’, jsp 383 (last updated: 2014), para. 5.29.3. A particular reference was made to article 35(3) prohibiting the use of means and methods of warfare which would cause widespread, long-term, and severe damage to the natural environment. Other nato members, which do not possess nuclear weapons, but can deploy and store such weapons under the nato nuclear weapons sharing concept (Belgium, Germany, Italy, and the Netherlands), as well as nato members that are not part of the nuclear weapons sharing concept (Canada and Spain), made the same reservations. See: J. Gaudreau, ‘The Reservations to the Protocols Additional to the Geneva Conventions for the Protection of War Victims’, 85(849) irrc (2003), at 143. The UK Terrorism Act, for example, prohibits the use of nuclear weapon or other nuclear explosive devices, as well as nuclear facilities and sites. See: The UK, ‘The Terrorism Act 2006 (Commencement No. 1) Order’ (2006). The legal requirement stipulated in Article 36 api is that all “new weapons, methods or means of warfare” must be reviewed.

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treaties regulating certain means and methods of warfare, allows States to be more flexible in their approach on this issue and to react even before a particular weapon is used in armed conflicts. This was the case, for example, with Protocol iv to the Convention on Certain Weapons adopted to ban blinding lasers, a weapon that was at the time still in development and has not been used before.69 More recently, a campaign has been launched by several nongovernmental organisations to influence States to pre-emptively ban fully ­autonomous weapons.70 4.1.2 Customary International Law While customary law is not adopted through conventional legislative procedure, it does form an important part of the international legal framework. Customary ihl rules come into existence through interplay between measures and rules at the international and national level. International treaties demand and encourage the creation of national implementing legislation and, in return, these measures re-emerge again at the international level, this time in the form of proof of State practice and opinio iuris that can confirm the existence of international customary rules.71 This boomerang effect of national measures on the development of international law is best seen in the numerous different documents analysed and used for the purpose of the icrc Customary Law Study.72 The significance of customary law to the development and reinforcement of ihl rules is twofold. First, it promotes a wider application of the e­ xisting rules. A number of identified customary rules are identical to the existing ­treaty rules applicable in international armed conflicts, and by recognising them as customary, their application is extended to all States (arguably except 69 70 71 72

L. Doswald-Beck, ‘New Protocol on Blinding Laser Weapons’, 36(312) irrc (1996). E.g. Campaign to stop killer robots (http://www.stopkillerrobots.org/). There have been steps taken in this direction, for example in the European Parliament Resolution of 27 February 2014 on the Use of Armed Drones (2014/2567 rsp), Article 2(d). For more on State practice and opinio iuris and the full process of developing customary rules, see: A. Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (2012), at 57–63. The authors of the Study listed the following sources of State practice that they collected: “military manuals, national legislation, national case-law, instructions to armed and security forces, military communiqués during war, diplomatic protests, opinions of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international organisations and at international conferences and government positions taken with respect to resolutions of international organisations”. See: Henckaerts, Doswald-Beck, supra note 13, at xxxviii.

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­persistent objectors),73 regardless of their treaty ratification status.74 Second, it is recognised that a large number of specific rules previously applicable only in international armed conflicts now also apply in non-international armed conflicts.75 Reactions in National Legislation to the Challenges of Modern Battlefield States have used their legislative powers to interpret broader ihl notions, to operationalise technical legal requirements, including those on the conduct of hostilities, and to fill in legal lacunae mainly present in the limited legal framework applicable to non-international armed conflicts. This came as a response to continuous metamorphoses of contemporary armed conflicts, as reflected in the rapid technological development in the arms industry and the use of new weapon systems in combat, a growing accessibility of these products to a wide range of non-State actors, evolving methods of warfare,76 as well as the mutating nature of non-State armed actors from flexible horizontal networks to State-like armed actors.77 4.2

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If a State objects to the emergence of a new customary rule during its formation and continues to object persistently afterwards, it can be considered as persistent objector and the rule will not be applicable to that State (unless it is considered ius cogens). Once a rule has been identified as customary law, a State cannot decide that the rule does not apply to it. See for instance: ila, ‘Final Report of the Committee on the Formation of Customary (General) International Law – Statement of Principles Applicable to the Formation of General Customary International Law’, London 2000, Principle 15 and Commentary thereto, at 738. J-M. Henckaerts ‘Annex to Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’, 87(857) irrc (2005), at 198. E.g. the basic principles of conduct of hostilities, the rules on specifically protected persons, the rules on the use of means and methods of warfare, and the treatment of persons in the power of a party to a conflict. An important milestone in identifying these customary ihl rules was the publication of the icrc Customary Law Study in 2005, which recognised that a substantial number of ihl rules have also formed as a custom: 161 customary rules were identified to be applicable in international armed conflict, of which 148 rules are recognised as applicable in non- international armed conflict as well. It was recognised that 8 of these rules were “arguably” applicable because “practice generally pointed in that direction but was less extensive”, ibid, at 198–212. These include cyber warfare, asymmetrical warfare, “proxy” warfare, as well as changes in States’ military tactics to deploy in overseas military operations jointly with allies and as members of international organisations. E.g. the Taliban in Afghanistan; the Islamic State of Iraq and the Levant in Syria/Iraq; the Donetsk People’s Republic in Ukraine; the Houthis in Yemen.

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4.2.1 “Gold-plating” ihl Rules The course of international affairs and the emergence of transnational armed groups have shifted the paradigm of armed conflicts, resulting in widening their temporal, geographical, and material scope, as well as in their devastating impact on civilians. The transformed reality of armed conflicts led to a rebalancing in favour of the broader notion of State security and military necessity at the expense of humanitarian principles. In this unbalanced context, there are States that consider that the adoption of additional legislative measures is not required by ihl treaties, but that such measures are necessary to increase the efficiency of their response to security threats and challenges of armed conflicts. The UK Appeals Court referred to such practice of legislating beyond the requirements of an international obligation as “gold-plating”, stating that such practice can be “objectionable”.78 This practice has been particularly used by States engaged in armed conflicts outside of their own territory and in multinational operations lasting for a prolonged period of time.79 Some of these States responded to a legal gap in the protection of persons detained in the context of a non-international armed conflict, by adopting counter-terrorism laws, enacting amendments to existing laws, or relying on jurisprudence of national courts to regulate various aspects of such detention. These measures offer domestic solutions for the legal basis and procedures for detention, and prescribe penal sanctions for mere participation in the armed conflict, illustrating the inherent inequality in the ­nature of parties to non-international armed conflict. In such a legal framework, members of non-State armed groups are denied the belligerent privilege not to be prosecuted for carrying out military operations against government armed forces.80 Instead, their acts often amount to crimes under national law.81 In addition to national legislative measures, States engaged in joint military operations also found a way to regulate the transfer of detainees to the host country and their duties and responsibilities in this regard by entering into bilateral agreements.82 78 79 80 81

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Judgment, R v Gul, the UK Supreme Court, Appeals Chamber, 23 October 2013, para. 53. E.g. The US and other nato States in Afghanistan and Iraq. Article 6(5) apii. Judgment, R v Gul, supra note 78; The US President, ‘Military Order – Detention, Treatment and Trials of Certain Non-citizens in the War against Terrorism’ – Executive Order No. 7463, 66 Fed. Reg. 57833 (2001); and the US, ‘Military Commissions Act’, 10 u.s.c., paras. 948a–950w (2006 and Supp. ii 2009). Several States with contributing troops to the isaf force in Afghanistan signed bilateral agreements on the transfer of detainees with the Ministry of Defence in Afghanistan (Canada, Denmark, Norway, the Netherlands, and the UK).

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It has been noted that some States interpret the existing ihl rules in a way that is not consistent with the fundamental principles of ihl and diverge from the widely accepted meaning of the rules, by incorporating national security policies in their legislative measures.83 The US has been criticized, for example, for expanding the definition of military objective to include “war sustaining” activities, meaning that those objects and activities that are found to generate revenue for enemy’s armed forces (e.g. oil fields, refineries) are considered to be a legitimate military objective.84 However, when interpreting the definition of a military objective, the icrc Commentary explains that “it is not legitimate to launch an attack which only offers potential or indeterminate advantages”.85 It was also argued that Israel has taken the advantage of a certain degree of discretion which the occupying power retains in deciding what constitutes “public order and safety” under Article 43 of the Hague Regulations, and what is considered “absolutely necessary by military operations” under Article 53 gciv, to justify actions and decisions regarding the expropriation and destruction of property belonging to the population in the occupied territory.86 While a certain level of latitude is allowed under ihl, in order to balance different requirements, it also leaves open the possibility of interpreting relevant rules by belligerent parties contrary to their duty to act bona fide and in a manner that can erode the protection guaranteed by these rules. 83

For a critique of the US Law of War Manual, see for instance: O. Hathaway, ‘The Law of War Manual’s Threat to the Principle of Proportionality’, Just Security, 23 June 2016, ­available at: https://www.justsecurity.org/31631/lowm-threat-principle-proportionality/; M. Lederman, ‘Troubling Proportionality and Rule-of-Distinction Provisions in the Law of War Manual’, Just Security, 27 June 2016, available at: https://www.justsecurity.org/31661/ law-war-manual-distinction-proportionality/. 84 While Article 52(2) api allows for targeting of economic objects directly contributing to the military operations of an opposing party, with their “war-sustaining” hypothesis, the US has interpreted this rule to include a wide range of economic objects that are usually considered to be civilian objects. For the US position, See for instance: J.M. O’Connor, ­‘Applying the Law of Targeting to the Modern Battlefield’ (remarks delivered at New York University School of Law), 28 November 2016, available at www.defense.gov/Portals/1/­Documents/ pubs/Applying-the-Law-of-Targeting-to-the-Modern-Battlefield.pdf; R. Goodman, ‘The Obama Administration and Targeting “War-Sustaining” Objects in Non-International Armed Conflict’, 110 Am. J. Int’l L. 663 (2016). For a critique of such an interpretation, see for instance: E. Chertoff, Z. Manfredi, ‘Deadly Ambiguity: ihl’s Prohibition on Targeting Civilian Objects and the Risks of Decentered Interpretation’ (4 July 2017), available at ssrn: https://ssrn.com/abstract=2997274. 85 1987 icrc Commentary api, at 636. 86 For a critical view of the Israeli Supreme Court’s decisions and their interpretation of the law of occupation, see: D. Kretzmer, The Occupation of Justice: The Supreme Court of ­Israel and the Occupied Territories (2002); S. Weill, The Role of National Courts in Applying International Humanitarian Law (2014), at 18–45.

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This practice of embedding national security interests in legislative measures has also increasingly expanded to the area of humanitarian assistance. Despite the prohibition of punishing those who carry out medical activities compatible with medical ethics, as set out in article 16(1) api and recognized as a customary rule in both international and non-international armed conflicts,87 a number of States adopted counter terrorism legislation that includes provisions which result in violation of this rule. For example, anti-terrorism laws adopted in Syria in 2012 stipulate that it is illegal to provide medical aid to persons belonging to the adversary.88 The US has also adopted legislation which prohibits the provision of material support to terrorist organizations, including the provision of certain medically related activities (excluding providing medications itself).89 Pursuant to these provisions, several persons were already prosecuted and sentenced in the US courts for carrying out medical activities.90 4.2.2 The Jurisprudence of National Courts While measures taken by the legislative or executive branch of the government at the national level can result in violations of States’ obligations under ihl, in favour of security interests, the role of the judiciary is to provide a remedy and correct such violations. National case law has an important role in determining, clarifying, and enforcing ihl rules at the national level. This role stems from the ability of courts to conduct judicial review of acts and decisions of the executive branch and provide authoritative instructions that further govern the conduct of State armed forces in situations arising from armed conflict. The Israeli Supreme Court, sitting as the High Court of Justice, for example, has jurisdiction over actions taken by the State or its officials (including military commanders in the Occupied Territory). This review has resulted in extensive and unique jurisprudence on different issues in relation to the occupation.91 87 88 89 90 91

Henckaerts, Doswald-Beck, supra note 13, at 86–88. UN Human Rights Council, Assault on Medical Care in Syria, A/HRC/24/CRP.2, 13 September 2013, para 21. The ‘Antiterrorism and Effective Death Penalty Act’ of 1996 (Pub. L. No. 104-132, 110 Stat. 1214) was amended by the 18 u.s.c. to expand its list of terrorist type offenses. See: D.A. Lewis, N.K. Modirzadeh, G. Blum, ‘Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism’, Harvard Law School Program on International Law and Armed Conflict, September 2015, at 124–141. E.g. Judgment, Ayyub v. Minister of Defence, hcj 606/78, Supreme Court of Israel, 1978; Judgment, Dweikat et al., v. Government of Israel et al., hcj 390/79, Supreme Court of Israel, 1979; Judgment, Jami’at Ascan et al., v. idf Commander in Judea and Samaria et al., hcj 393/82, Supreme Court of Israel, 1983; Judgment, Mara’abe et al. v Prime Minister of Israel et al., hcj 7957/04, Supreme Court of Israel, 2009; etc.

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The US Supreme Court has also had to discuss ihl rules on several occasions, most notably when it decided the Hamdan case, where it held that the military commissions that were set up by the President violated Common Article 3 GCs.92 Judicial review conducted by national courts is not only relevant for a case in question, but it can have wider implications, as it can lead to a change in the laws and policies of a State in order to align them with the applicable ihl rules. However, depending on different circumstances and obstacles, such as security considerations and political constraints used by States to avoid their obligations under ihl, as mentioned above, judicial review does not always or does not immediately result in increased compliance with ihl rules.93 For example, it is noted that, following judicial review in Hamdan, US Congress tried to avoid further judicial review, by passing a new set of laws with the aim to deprive the courts of habeas corpus jurisdiction with respect to non-US citizens who are determined to be enemy combatants.94 Nevertheless, these new rules were challenged before the Supreme Court in 2008, and the Court decided that provisions limiting judicial review of decisions by the executive body regarding the status of persons held at Guantanamo Bay did not provide an adequate substitute for habeas corpus and therefore were unconstitutional.95 5 Conclusion Whether applying de lege lata or aiming towards de lege ferenda, in order to be recognised as a valid treaty implementation tool, each legislative measure taken by a State should remain within the confines of the overall protection regime of ihl. The bare minimum of this protection regime is reflected in the fundamental ihl principles, as embedded in the ihl treaties and recognised as a part of customary international law.96 Depending on whether the specific 92

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The Court found they were not established as regular military courts in the US system and failed to afford minimum judicial guarantees recognized as indispensable by civilized peoples. See: Judgment, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al., No. 05–184, Supreme Court of the United States, 29 June 2006, paras. 69–70. For a critical view of the Israeli Supreme Court’s decisions and their interpretation of the law of occupation, see: Weill, supra note 86; Kretzmer, supra note 86. D.A. Hass, ‘Crafting Military Commissions Post-Hamdan: The Military Commissions Act of 2006’, 82(4) Indiana Law Journal (2007). Judgment, Lakhdar Boumediene et al. v. George W. Bush et al., No. 06-1195, Supreme Court of the United States, 12 June 2008. See: Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, supra note 28, para. 79: “These fundamental rules are to be observed by all States whether or not they

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legislative measure simply implements the existing treaty law or aims to develop it further, the protection regime of ihl remains within its boundaries or it expands. Through the creation of a web of implementing legislative measures in accordance with their obligations under ihl, States can strengthen humanitarian protection during armed conflicts and, more generally, they can increase respect for the law. However, this web of measures at times can become entangled, as States take different approaches in the implementation of treaties. In this regard, the available model laws and ratification kits on specific ihl areas have helped in improving and unifying scattered State implementation practices to a certain extent.97 These tools have in particular facilitated and accelerated the process of incorporating ihl within dualist systems, by providing States with accustomed pre-texts that their national bodies can easily use in legislating procedures. The adoption of different international treaties dealing with ihl related issues has had reinforcing effects on the protection regime of ihl. By ­developing international rules regulating weapons, States further advanced compliance with ihl rules. In particular, since some of these treaties incorporated the rules on conduct of hostilities, such as the principles of distinction and proportionality, and the prohibition of indiscriminate attacks,98 the application of these rules was further extended to States not parties to api.99 Despite the criticism that ihl has become irrelevant and out-dated, a fragmented approach in the regulation of weapons has actually strengthened the law in this field and improved its flexibility in responding to the ever-changing reality of armed conflicts. It also allowed for greater transparency in treaty negotiations, as well as for an inclusion of wider interests of the global community that ultimately

97 98 99

have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, icty, Appeals Chamber, para. 129: “Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition”. See for instance: icrc, ‘Model Law on the Emblems’, 2008; icrc, ‘Guiding Principles/Model Law on the Missing’, 2009. Amended Protocol ii to the ccw contains a number of rules that are identical to the rules in api applicable to conduct of hostilities. For example, while the United States did not ratify api, they did ratify Amended Protocol ii to the ccw, and these rules apply in international and non-international armed conflict.

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resulted in increasing the protection of persons not directly participating in hostilities in both international and non-international armed conflicts. In addition to national legislative measures serving as implementation tools, a proactive approach was taken by some States’ towards the adoption of rules going beyond the basic treaty requirements. This approach has resulted in both positive and negative effects on the ihl protection regime. The positive effect has been the most visible in the field of criminal repression of ihl breaches. By adopting detailed legal provisions in criminal matters, States facilitate continuously increasing national efforts to prosecute perpetrators of ihl violations committed in armed conflicts on their territories or abroad. The jurisdictional grounds include universal, territorial, and personal jurisdiction.100 While the ad hoc tribunals and the icc are important actors through which the international community can punish the perpetrators and deter and prevent the gravest crimes, significant and lasting results in this field can only be achieved through complementarity with national courts. On the contrary, departing from their treaty obligations and enacting legislative measures that are not in accordance with the fundamental ihl principles, States not only violate their international obligations, but also erode the very foundation of ihl. This is the case with legislative measures that are enacted reactively and pursuant to isolated political interests of States. The increasing number of such inconsistent legislative acts has had a weakening effect on compliance with the law. Observed from a global perspective, this reactive legislative approach blurs the line between humanitarian and military needs, and generates greater inequality in the strength and scope of humanitarian protection afforded to individuals and objects caught in armed conflict, which increasingly depends on arbitrary policies and practices of the State concerned instead of the applicable rules of ihl. While the practice of adopting national measures deviating from ihl principles should be abandoned in toto in favour of humanitarian requirements, bona fide developing measures could be a useful tool for responding to the challenges of armed conflicts. To achieve this goal, however, the international community needs to agree on a mechanism mandated to centralize, coordinate, and direct such measures in the right direction – towards a unified and coherent system which strengthens the ihl protection regime. Until then and at a minimum, to avoid the risk of complete arbitrariness and dissonance in the creation of rules, legislators should have the strengthening and advancement of the core ihl principles as their ultimate objective.

100 Human Rights Watch, ‘These are Crimes we are Fleeing: Justice for Syria in Swedish and German Courts’, October 2017.

The Future of the International Humanitarian Fact-Finding Commission: A Possibility to Overcome the Weakness of ihl Compliance Mechanisms? Robert Heinsch* Abstract Article 90 api establishes a permanent International Humanitarian Fact-Finding Commission with the mandate to enquire into serious violations of ihl and to facilitate the path to compliance with ihl through its good offices. However, since the official establishment of the competence of the Commission in 1991, it has only been called upon once, and probably not in a way as envisaged by Article 90 api. This essay will examine whether the Commission can, despite a lack of use in the past, contribute to a more efficient compliance system in ihl in the future. It will elaborate upon the nature of the Commission, and explain the mandate and procedure of this treaty body. Furthermore, this essay will highlight its advantages and challenges, and will finally evaluate the past, present and especially the future of this specific instrument for the enforcement of ihl.

1 Introduction In the last couple of years, there has been a revival of the use of fact-finding commissions in order to verify violations of international (humanitarian) law. This comes somewhat as a surprise, especially against the background of the * Dr. Robert Heinsch, ll.m. is an Associate Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University, and the Director of its KalshovenGieskes Forum on International Humanitarian Law (www.kalshovengieskesforum.com); the author would like to thank his former research assistant, Ms. Manuela Rüegger ll.m. for her invaluable assistance in collecting the necessary material and preparing the first outline, and his PhD fellow, Ms. Sofia Poulopoulou, ll.m. for additional substantial input on the content of this essay. This essay is dedicated to the late Professor Frits Kalshoven, one of the first presidents of the International Humanitarian Fact-Finding Commission. The views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with.

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_005

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growing institutionalisation of the judicial system dealing with grave ­breaches and other serious violations of ihl, as exemplified by the icty, the ictr, the icc, and the recent establishment of the Kosovo Specialist Chambers. ­Compared to these judicial mechanisms, international fact-finding commissions can be described as a rather “soft” way of ensuring compliance with ihl. Originally, the 1949 GCs1 foresaw several mechanisms to ensure that States did not violate ihl. These instruments included the concepts of protecting powers, the enquiry procedure, meetings of High Contracting Parties, and especially the system of grave breaches. The latter placed the responsibility for either prosecuting or extraditing possible war criminals on the State parties to the 1949 GCs. As described in detail elsewhere, the system of graves breaches was not as successful as expected, with only few States implementing the necessary legislation after the ratification of the 1949 GCs. Therefore, a new mechanism, which was supposed to enhance compliance with ihl, was introduced. The signing of the 1977 api2 introduced another possibility for ensuring compliance with ihl, namely the “International (Humanitarian) Fact-Finding Commission” (Commission or ihffc) under Article 90 api. This came at a time when the grave breaches regime, as introduced by the 1949 GCs, had proven that leaving the prosecution of war crimes only to the national jurisdictions of the Member States was not as successful as anticipated. Since establishing an international court or an international monitoring system for ihl violations was not realistic at this time, the idea was that sending a commission of 15 experts of “high moral standing and acknowledged ­impartiality”, in order to “enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violations of the Conventions or of this Protocol”3 and to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”,4 would bring the parties (back) to the path of compliance with ihl. As will be shown in the course of this essay, this approach was not immediately followed 1 Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950). 2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) 1125 unts 3 (entered into force 8 June 1977). 3 Article 90(2)(c)(i) api. 4 Article 90(2)(c)(ii) api.

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by a rapid implementation in practice. Rather, the ihffc under Article 90 api came to be described as a “Sleeping Beauty”.5 Before international fact-finding commissions became more popular in the area of ihl, the regime of grave breaches – although not very successful in the original sense of allowing for prosecutions on a national level – was further developed during the last 25 years. This took place as part of the current international criminal justice system in the form of the systematic prosecution of war crimes. In this regard, the enforcement of ihl seems to have become prima facie more successful in view of the increased number of international and national courts and tribunals, prosecuting war crimes and conducting trials with regard to violations of ihl. However, one has to admit that these war crimes prosecutions only affect the tip of the iceberg. On the one hand, the prosecution of war crimes by definition covers only a limited number of ihl violations, namely the grave breaches of Geneva Law as well as other serious violations, especially of Hague Law provisions. On the other hand, due to the still developing stages of both the international as well as the national criminal justice system, these prosecutions are rather selective and often limited by the restrictive jurisdiction of the international (ad hoc) tribunals. In this regard, one must come to the conclusion that – as in other areas of international law – one of the biggest challenges for ihl today is still to achieve an efficient enforcement and compliance system for its legal regime. While the substantial rules governing both international and non-international armed conflicts have become more and more detailed and sophisticated, it is probably truer today than ever to question whether there is an adequate system ensuring and monitoring compliance with these rules. This is especially valid if one compares the ihl compliance system with the regime governing human rights compliance, which on both the international as well as the regional and national level seems to offer more ways (also for individuals) to seek enforcement of its legal regime. Although Article 90 api provided for a permanent humanitarian fact-­ finding commission, it took until 20 November 1991 for the 20 declarations to be reached in order to set up the commission, and until 18 May 2017 for the ihffc to receive its first mandate.6 In this regard, there were other ­bodies 5 F. Kalshoven, ‘The International Humanitarian Fact-Finding Commission: A Sleeping ­Beauty?’ 4 Humanitäres Völkerrecht – Informationsschriften (2002), at 213–216. 6 ihffc, ‘International Humanitarian Fact-Finding Commission to Lead an ­Independent Forensic Examination in Eastern Ukraine (Luhansk Province)’, 19 May 2017; see also: C. ­Azzarello, M. Niederhauser, ‘The Independent Humanitarian Fact-Finding Commission: Has

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o­ utside the system of the GCs which seem to have taken over the lead in establishing fact-finding commissions in situations where a judicial treatment of possible ihl violations was not possible. Overall, it is sufficient to mention at this point that other fact-finding missions have been established within the UN-system, but that it is questionable whether they have managed to achieve what they were intended for. One example is the Human Rights Council which, since its establishment in 2006, has created quite a number of commissions of inquiry.7 In comparison with the original idea of fact-finding commissions, namely to “find facts”, some commentators associate a strong legal dimension to the commissions established by the Human Rights Council.8 This is also problematic because the investigation of ihl violations does not belong to the core mandate of the Human Rights Council, and therefore the composition of these commissions might not always reflect the necessary ihl specialisation. Therefore, one could conclude that even after the establishment of various other fact-finding commissions, there still should be room for a pivotal role for the ihffc with regard to ensuring compliance with ihl in the current international legal order. This essay will examine whether the ihffc, as envisaged in Article 90 api, can contribute to a more efficient system of compliance with ihl. It will elaborate upon the nature of the ihffc and explain the mandate and procedure of this treaty body. Furthermore, this essay will highlight its advantages and challenges and, finally, it will evaluate the past, present, and especially the future of this specific instrument. 2

Main Problems Surrounding the Mandate of the ihffc

In the following, the four main problems surrounding the most important features and especially the mechanism that triggers the mandate of the ihffc shall be described in order to evaluate the advantages and disadvantages of the Commission.

the “Sleeping Beauty” Awoken?’ Humanitarian Law and P ­ olicy Blog, 9 J­ anuary 2018, a­ vailable at: http://blogs.icrc.org/law-and-policy/2018/01/09/the-independent-humanitarian-fact-find ing-commission-has-the-sleeping-beauty-awoken/. 7 L. van den Herik, ‘An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law’, 13(3) Chinese Journal of International Law (2014), at 507. 8 Ibid.

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Request of an Enquiry Only by a Consenting State/Party to the Conflict The question as to who can request an enquiry is crucial in order to understand why the ihffc has rarely been used since its entry into force in 1991. Article 90(2) api foresees two possibilities concerning the start of proceedings by the ihffc. First, according to subparagraph (a), the High Contracting Parties can submit an ipso facto declaration establishing the competence of the Commission to enquire in relation to any other State which has made the same declaration. As a result, if two States have made an Article 90 Declaration, a right to inquire follows. However, for practical reasons – especially the fact that there is no enforcement unit connected to the ihffc – consent is also required in this situation. Second, according to Article 90(2)(d) api, the Commission “shall institute proceedings at the request of a Party to the conflict only with the consent of the other Party or Parties concerned”. It follows from this system that the competence of the ihffc can either be triggered by a comprehensive declaration which can be made when signing, ratifying, or acceding to api, at any subsequent time, or via ad hoc consent, which allows also for temporary consent for a specific situation. This bears a strong similarity to the system laid down in Article 36 of the icj Statute. Consequently, only those States that commit themselves in advance are obliged to accept the enquiry.9 In contrast to the standing submission to the competence of the Commission, as regulated in subparagraph 2(a), Article 90(2)(d) api provides for an ad hoc request of an enquiry: “[i]n other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned”.10 Under this alternative, the request of the enquiry is restricted to a party to the conflict and subject to the consent of the other party or parties concerned. There is no requirement for the party to the conflict, requesting an enquiry under subparagraph 2(d), to have ratified api.11 With regard to both options, it is important that the drafters of Article 90 api envisaged that the States concerned (i.e. High Contracting Parties in the case of Article 90(2)(a) api) would give their consent before an inquiry by the ihffc could be institutionalised. We will see, however, that the option mentioned in Article 90(2)(d) api of a request of a “Party” (i.e. not necessarily a State) to the conflict, can be used in order to circumvent this traditional 2.1

9 1987 icrc Commentary api, at 1044. 10 Article 90(2)(d) api. 11 1987 icrc Commentary api, at 1046: “[…] This means that any Party to an international armed conflict, even if it is not a Party to the Protocol, may approach the Commission regarding an allegation of a grave breach or serious violation of the Conventions, which adds to the significance of the creation of the Commission”.

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consent requirement, which tried to accommodate the importance of State sovereignty at the time of drafting. As the past 40 years have shown, the ihffc seems not to have really been able to persuade States of its benefits, because, until 18 May 2017, the Commission never received a mandate.12 Even when the Commission finally did, it was not coming from an api Member State, but from an international institution: the osce.13 Instead, as has been mentioned above, independent ad hoc commissions of inquiry have been set up rather than assigning the task to the ihffc. An interesting aspect of these ad hoc commissions is that there have been examples where certain members of the ihffc were called upon to become part of such an ad hoc commission. These “[c]ommissioners [acted] within the mandate of the particular organisation concerned, not as Commission members”.14 2.2 Mandate Only for International Armed Conflicts? While the question as to who can request an enquiry reveals the State-centred approach that was taken when drafting the APs in 1977, the issue of which area of competence the ihffc actually has, touches equally on the aspect of how much the Commission is allowed to interfere with internal matters of sovereign States. According to Article 90(2)(c) api, the ihffc has two main areas of competence: “[t]he Commission shall be competent to: (i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol”; and “(ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”.15 The wording of subparagraph (c) seems to indicate, and support the assumption that, its first branch of competence, namely the enquiry into grave breaches of ihl, is limited to the area of international armed conflict (and thereby omitting non-international armed conflicts which would touch much more upon the sovereignty of the affected State). This becomes clear in view of the fact that the grave breaches regime has been explicitly limited to this type of conflict since its insertion in the 1949 GCs. 12 13 14 15

ihffc, supra note 6. The result of the first official fact-finding commission can be found in a one-page executive summary, published here: http://www.osce.org/home/338361. C. Garraway, ‘The International Humanitarian Fact-Finding Commission’, 34(4) Commonwealth Law Bulletin (2008), at 815. Article 90(2)(c), (d) api.

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However, Kalshoven (and the Commission as such) has always read the j­urisdiction of the ihffc widely and held that “[t]he Commission […] has almost from day one declared itself ready to carry out its functions in situations of internal armed conflict as well”.16 This argument can be made on the basis of the wording of Article 90(2)(c)(i) api, which refers to “other serious violation of the Conventions or of this Protocol”. This could include violations of Common Article 3 to the 1949 GCs, which covers non-international armed conflicts. This interpretation is further supported by the fact that, nowadays, the term “other serious violations” of ihl is equally used with regard to war crimes committed in non-international armed conflicts by, for example, Article 8(2)(e) of the icc Statute.17 However, it may be questioned whether the drafters indeed wanted to confer such a power to the ihffc in 1977, considering that, at the time, the existence of war crimes in non-international armed conflict was denied by the majority of scholars. In this regard, Harwood recently put forward and confirmed a narrow interpretation that the rules on ad hoc jurisdiction and applicable law remain part and parcel of api, which as a whole only applies in iacs. There is also a paucity of state practice to support a possible extension to the ihffc’s jurisdiction on the basis of customary ihl.18 This view seems prima facie to be supported by the fact that Article 90 api does not mention apii19 in the clause on competence of Article 90(2)(c) and (d), which indeed is seen by some authors as supporting the interpretation that the ihffc is not competent in non-international armed conflicts.20 However, the structure of Article 90(2)(a) and (d) api also reveals that the enquiries envisaged to be conducted by the ihffc are very much determined 16 Kalshoven, supra note 5, at 837. 17 Rome Statute of the International Criminal Court (1998) 2187 unts 90 (entry into force 1 July 2002). 18 C. Harwood, ‘Will the “Sleeping Beauty” Awaken? The Kunduz Hospital Attack and the International Humanitarian Fact-Finding Commission’, ejil: Talk!, 15 October 2015, available at: https://www.ejiltalk.org/will-the-sleeping-beauty-awaken-the-kunduz-­hospital -attack-and-the-international-humanitarian-fact-finding-commission/. 19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977) 1125 unts 609 (entry into force 7 December 1978). 20 Condorelli, ‘La Commission Internationale Humanitaire d’Etablissement des Faits: un Outil Obsolète ou un Moyen Utile de Mise en OEuvre du Droit International Humani­ taire?’ 83(842) IRRC (2001), at 397.

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by the consent given by the parties involved in the conflict. Therefore, it seems more than reasonable (and since May 2017 also confirmed by State practice) to concur with Frits Kalshoven when he stated that “the scope of applicable law need not be restricted to ‘the conventions and this Protocol’ and may effectively encompass the entire field of ihl, again, provided the parties accept such an extension”.21 The interpretation that the ihffc can also investigate facts in a non-international armed conflict seems now also to have been endorsed by the recent conclusion of the investigation mission in Eastern Ukraine. Finding the Balance between Fact-Finding, Legal Evaluation, and the Offering of Good Offices Another important aspect to be highlighted is that the ihffc is not a judicial body. The Commission is only supposed to establish facts and to give recommendations, as provided in Article 90(5)(a) api, not to conduct a legal evaluation. A similar approach may be found in Article 13(1) of the Convention on the Elimination of all Forms of Racial Discrimination.22 In this context, it has been observed that the “ihffc actively promotes the fact that its findings stop short of legal statements”, since its competence would have to be significantly expanded if conflict characterisation were to be incorporated.23 This balancing act between fact-finding, on the one hand, and legal characterisation, on the other hand, is probably one of the greatest challenges for the ihffc and might be one of the reasons why States have been reluctant to make use of this institution. There is a thin line between dividing the finding of facts from a legal evaluation, especially when the competence is supposed to look at facts which have resulted in alleged ihl violations. As Boutrouche correctly concluded: “[…] one can assume that it is virtually impossible to exclude all legal considerations from the fact-finding process because of the inherent influence of the law over facts”.24 And indeed, in order to confirm its own competence over “grave ­breaches” and “other serious violations”, the Commission necessarily needs to consider ­legal aspects as well. It might be that the difficulties concerning the 2.3

21 Kalshoven, supra note 5, at 837. 22 As pointed out by E. Kussbach, ‘The International Humanitarian Fact-Finding Commission’, 43 International and Comparative Law Quarterly (1994), at 179. 23 A. Yuile, ‘At the Fault-Lines of Armed Conflict: The 2006 Israel-Hezbollah Conflict and the Framework of International Humanitarian Law’, 16 Australian International Law Journal (2009), at 212. 24 T. Boutruche, ‘Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice’, 16(105) Journal of Conflict & Security Law (2011), at 111.

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­competence  of the ihffc, and especially the requirement of either permanent or ad hoc consent by the parties concerned, can lead to the creation of separate ad hoc fact-finding bodies. As put by Harwood in the context of the Kunduz hospital attack: An alternative approach which would avoid those jurisdictional hurdles, and which might allay the concerns […], would be for the states to agree to establish an international fact-finding commission composed of wellrespected ihl experts, such as those individuals serving as Commissioners of the ihffc, without invoking the formal credentials of that body.25 Further problematic issues concerning the competence of the ihffc include the noteworthy absence of Article 90 Declarations from the US, France, China, Israel, and India, which leaves gaps with regard to important possible actors in the area of ihl. Apart from the lack of declarations from certain military superpowers (some of which have not ratified the APs either), an additional problem with regard to the ihffc in modern conflict situations is the aforementioned ambiguity concerning the question of whether the competence also covers non-international armed conflicts. The possibility of an expansive interpretation extending to non-international armed conflicts could make Member States hesitant to submit situations of non-international armed conflict to the ihffc. This highlights the problem that the Commission will not really be effective as long as the States involved do not give their consent and refer the respective incident to the competence of the Commission.26 A question that has arisen in the past is whether the competence of the Commission to offer good offices, as laid down in Article 90(2)(c)(ii) api, is independent from the enquiry procedure of subparagraph 2(c)(i). The structure of Article 90(2) api seems to speak in favour of the separation of these two competences. Therefore, it has been argued that the offering of its good services is a special competence, which gives the Commission the power to offer its good offices independently from the official request of an enquiry.27 This interpretation falls in line with the approach that has been followed by the Commission itself. It has clarified multiple times that it is able to conduct

25 Harwood, supra note 18. 26 G. Bartolini, ‘Strengthening Compliance with International Humanitarian Law: The Failed Proposal for a Meeting of States on International Humanitarian Law’, 25 The I­ talian Yearbook of International Law (2015), at 205. 27 Kussbach, supra note 22, at 179.

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its good services not only on the initiative of the High Contracting Parties, the parties to the Conflict, but also on its own initiative.28 2.4 Composition, Procedure and Confidentiality of the Reports When a complaint is initiated, the enquiry by the ihffc is to be conducted, unless the parties otherwise agree, by a chamber of seven members. Five members, not nationals of any party to the conflict, should be appointed by the President of the Commission on the basis of equitable geographical representation, after consultation with the parties to the conflict. Two ad hoc members, again not nationals of any party to the conflict, are to be appointed by each side. The chamber has the task to invite the parties to the conflict to assist it in its enquiry and to present evidence. It may seek other evidence as it considers appropriate and may carry out an investigation of the situation on the ground. The chamber should fully disclose all evidence to the parties which have the right to comment on it and challenge it. The Commission itself submits a report on its findings to the parties, along with such recommendations, as it may consider appropriate. The icrc Commentary describes the recommendations that could be issued by the Commission as a “first step towards mediation”.29 The Commission may not report its findings publicly, unless all the parties to the conflict agree.30 In this context, it has been noted that, if a Chamber is unable to secure sufficient evidence, this “might well be embarrassing for the party or parties to the conflict, in that it may show their lack of willingness to co-operate with the Chamber” and that such “an attitude could be interpreted as a sign of bad conscience”.31 However, since the report will mainly be dealt with confidentially, the risk that the parties to the conflict will openly have to admit that they did not supply the Commission with enough access to possible evidence is rather limited. This secrecy is one of the major downfalls undermining the impact that the Commission could have on the prevention of further violations of ihl, since it is hard to imagine that States are going to change their behaviour as a result of a report, if that report is not going to be published. Confidentiality does not allow for an appeal to the public to exert pressure and enforce the respect of the recommendations made. In this connection, even the icrc, otherwise very strict as concerns the confidentiality of its 28 ihffc, ‘Good Offices’, October 2005, at 2–3. 29 1987 icrc Commentary api, at 1050. 30 ihffc, ‘The ihffc in a Few Words’, available at http://www.ihffc.org/index.asp?page= aboutus_general. 31 Kussbach, supra note 22, at 180.

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i­ nterventions, has reserved its right to make public statements in certain cases of violations of ihl. The icrc, in particular, uses this right in the following circumstances: if the violations are grave and have been committed repeatedly, if the confidential interventions were not effective, if publicity serves the interest of the people or the population as a whole, if a delegate of the icrc personally has become a witness of the violation, or if the existence and the scope of violations have been proved.32 The confidentiality of the final report, which has been described as one of the advantages of the ihffc, also entails pitfalls. The obligation of confidentiality on the part of the Commission does not preclude one or both of the parties from publishing the report on their own accord. The consequence of such a (one-sided) publication undoubtedly involves some risks. This could include, for example, the possibility that the respective parties affected do not publish the complete report, but only those parts favourable to them.33 This would obviously constitute legal abuse and would likely have the consequence that the Commission will have to publish the entire report in order to avoid a one-sided interpretation of its findings and recommendations.34 3

The Future of the ihffc

While the establishment of a fact-finding body within the system of ihl might have been a promising initiative when the APs were signed 40 years ago, reality until now has painted a different picture. In the 25 years of the Commission’s existence, it has never been used as originally conceived, namely by State consent. However, it has “almost” been used several times. As Garraway, one of the past Commissioners, has reported: “[…] the Commission has offered its services and its good offices in a number of situations and delicate negotiations have taken place with various parties. However, none of these initiatives have come to fruition although they continue”.35 As mentioned above, the Commission finally received its first mandate in May 2017, when the Commission signed a memorandum of understanding with the osce, which requested the Commission to lead an independent forensic examination in an event which took place in Eastern Ukraine.36 32 Kussbach, supra note 22, at 180–181. 33 Ibid, at 180. 34 Ibid. 35 Garraway, supra note 14, at 815. 36 ihffc, supra note 6; see also: Azzarello, Niederhauser, supra note 6.

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Some of the recent developments in modern conflict situations, including for example the Kunduz province hospital bombing,37 have shown that, despite ample opportunity to give the Commission a mandate, such a result has not been achieved. Especially the fact that the classification of a conflict as non-international originally seemed to preclude the ihffc’s jurisdiction has been seen as a strong obstacle for the future use of the Commission, since the majority of conflicts are of a non-international character nowadays. This would include situations like the one in Afghanistan in which the Kunduz hospital attack appeared. Although the involvement of the Taliban and their respective territorial control could lead to a classification as a non-international armed conflict as regulated by apii, this would nevertheless be problematic. The reason for this is that the type of conflict is not explicitly mentioned in the applicability clause of Article 90 api (in contrast to international armed conflict) and is therefore widely seen as being excluded. Other situations where the ihffc was supposedly considered include Colombia, the Balkans, and Darfur.38 With regard to the latter situation, the “Cassese Commission of Inquiry” was established pursuant to the unsc Resolution 1564 (2004), which avoided the requirement of the consent of the affected State, and circumvented the problem that it was dealing with a non-international armed conflict. The problem of the lack of consent of one of the involved parties to the conflict was also exemplified by the 2006 Lebanon conflict,39 where the lack of Israeli cooperation did not allow detailed inquiries about the manner in which humanitarian issues were taken into account on their side. One of the most pressing problems is that the (visible) results on the ground only present part of the facts and it is often necessary to make resort to confidential intelligence reports that explain the targeting decisions. However, for obvious reasons, States are more than reluctant to provide this information since, for instance, sources could be put at risk and information could be leaked to the enemy. Thus, while the appointment of inquiry commissions by the unsc or the ohchr circumvents the requirement of consent required by Article 90 api, it has another unfortunate side-effect. As Van den Herik explains: “even if identical in name, contemporary human rights commissions of inquiry are fundamentally different from their ancestors. Where traditional commissions of inquiry aimed to conciliate and pacify, contemporary human rights commissions rather condemn and provoke”.40 This difference might especially be 37 Harwood, supra note 18. 38 Garraway, supra note 14, at 814–815. 39 Ibid, at 815. 40 Van den Herik, supra note 7, at 537.

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grounded in the link of these commissions to the human rights system instead of being part and parcel of the ihl treaty mechanism. It seems that, with regard to fact-finding mechanisms, there is a dilemma, no matter from which side one approaches the idea of investigating alleged violations of ihl. Inquiry commissions established under ihrl may encounter harsh criticism from the parties concerned and are not always equipped with the necessary ihl expertise. The ihffc, on the other hand, can only investigate a conflict with the consent of both parties and, even if this condition is achieved, the result will not be published. This begs the question of whether the outcome of the investigation can be used “in order to make diplomatic or judicial decision concerning a party’s legal culpability”.41 Finally, until now, only 76 States have submitted a declaration accepting the competence of the ihffc, which leads to the unfortunate reality that it could not investigate almost 60 percent of countries of the world.42 As has been shown above, the rather strict requirement of State consent prior to starting an investigation could potentially prevent the regular use of the Commission also in the future. However, such a pessimistic outlook does not need to materialise. As the recent use of the Commission by the osce in Eastern Ukraine has demonstrated, there is room for using this institution in situations related to armed conflict, even if a State party to the conflict has not given its consent. This first mandate arose from the following situation.43 On 23 April 2015, an explosion took place in an area in Eastern Ukraine, which severely damaged an armoured vehicle belonging to the osce’s Special Monitoring Mission (smm). One of the passengers was killed, the two others were wounded. On 18 May 2017, a memorandum of understanding was signed between the Secretary General of the osce and the President of the Commission, Thilo Marauhn, and they agreed that the Commission would lead an independent investigation. As a consequence, an Independent Forensic Investigation (ifi) was put together and sent to Eastern Ukraine by the ihffc. The full report of the investigation was only made available to the osce, while the Executive Summary44 of the ifi’s report was published on 7 ­September 2017, one day after the passing of Frits Kalshoven, one of the first presidents of the 41

T.B. Musselmann, ‘Skirmishing for Information: The Flaws of the International Legal System as Evidenced by the Russian-Georgian Conflict of 2008’, 19(317) Transnational Law & Contemporary Problems (2010), at 346. 42 Ibid. 43 For more detailed background information, see: Azzarello, Niederhauser, supra note 6. 44 Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an osce Special Monitoring Mission to Ukraine (smm) Patrol on 23 April 2017, available at http://www.osce.org/home/338361?download=true.

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­Commission. The ifi came to the conclusion that the anti-tank mine was not specifically aimed at this particular osce vehicle on the basis that the road was not on the convoy's normal route and had not been planned in advance.45 However, the report stated that any laying of anti-vehicle mines on that road would have to be considered as a violation of ihl, because of the potentially indiscriminate damage which could be caused by these weapons.46 The interesting question raised by this first mandate of the ihffc is: what was the legal basis for the Commission’s inquiry? Ukraine had accepted the competence of the Commission under Article 90(2)(a) api, and one could assume that the Commission therefore acted under Article 90(2)(c)(i) api, if one presupposes that the request for this does not necessarily need to come from the (State) parties involved, and we agree that this article also covers situations in non-international armed conflicts as discussed above. This, however, seems problematic, as the requirement of Article 90(2)(a) api is that the acceptance of the competence needs to come from a High Contracting Party (i.e. a State entity), and even though Ukraine is part of the osce, it seems doubtful whether this possibility was envisaged by the drafters. This seems to be the reason why Azzarello and Niederhauser conclude that the basis for the Commission’s investigation must have been Article 90(2)(d) api (“in other situations”).47 This, however, seems to overlook the requirement that, according to this provision, all parties concerned need to consent to the inquiry. Thus, it seems much more plausible that the basis for this first mandate of the ihffc is to be found in Article 90(2)(c)(ii) api, namely to facilitate through its good offices an attitude of respect for the GCs and api. It is the author’s opinion that this legal basis for the actions of the Commission will be the most fruitful starting point for future fact-finding missions. Apart from the new approach of having an international organisation prompting the mandate of the Commission, the ihffc could increase its ­focus on its good offices function48 while monitoring potential situations, and then “approach quietly and privately” the parties concerned. Similarly, the ihffc has itself indicated that it will make sure that “the possibility to offer its good offices is not left to ad hoc improvisation”.49 In order to be able to react quickly to upcoming crisis situations, it would indeed make sense that 45 Ibid. 46 Ibid. 47 Azzarello, Niederhauser, supra note 6. 48 Garraway, supra note 14, at 815. 49 ihffc, ‘Report on the Work of the International Humanitarian Commission Fact-Finding Commission’, 29 May 2006, at 18–19.

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the ­Commission will keep “current or nascent conflicts […] systematically […] under r­ eview by an early warning unit to be established within the Secretariat of the Commission”, which would enable the Commission to offer its services swiftly wherever it is appropriate.50 As the cooperation with the osce in May 2017 has shown, it also seems advisable to continue to offer its good offices in cases where members of international organisations are involved in armed conflict or violence. But there are more advantages of the ihffc that could be decisive for the further use of the Commission in future conflict situations. One of the biggest advantages of the Commission, especially compared to the inquiry commissions set up by the Human Rights Council, is its legitimacy. The Commission is a permanent treaty body with international recognition and mandate. The Member States themselves have defined and elaborated its competence and procedure and should therefore support it. Another advantage is its e­ fficiency, since any enquiry should be carried out with a low-key and confidential ­approach. Furthermore, the confidentiality of the report, as provided for in ­Article 90(5)(c) api, in the end has to be seen as an advantage, because it could motivate States to accept the competence of the Commission. Moreover, the fact that the ihffc is a permanent body and not an ad hoc institution must be considered to be an advantage, since it is “much less susceptible to political interference or influence”, if it were to be used on a regular and continuous basis.51 Finally, the combination of having neutral, independent, and diverse Commissioners, together with the ihffc’s detailed rules of p ­ rocedure, should, in theory, guarantee fair and thorough proceedings in which the rights of the parties are respected.52 Also, the inclusion of military experts is usually seen as an important benefit, given the armed conflict circumstances in which the Commission has to operate.53 This advantage must especially be highlighted in the context of the composition of some of the fact-finding commissions which have been established by the Human Rights Council. In ­addition, the Commission is neither supposed to state the law, nor to ­establish individual criminal responsibility (if not so demanded by the parties). This is an advantage as well, since it should attract States to use the Commission in order to find solutions that are not offered by other – especially

50 Ibid. 51 Ibid, at 183. 52 Ibid. 53 Musselmann, supra note 41, at 346.

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judicial – ­institutions.54 In this regard, at least in theory, the ihffc offers a service that is neither covered by the UN, the icrc, or protecting powers.55 Another important idea is to further expand the Commission’s capabilities and infrastructure, which could include more training for the Commissioners, and to raise the profile of the ihffc by more publicity in general. This could include frequent references to its existence during international fora, conferences and meetings. Furthermore, it seems to be crucial to make States aware that a separate declaration is needed for Article 90 api and that ratifying api is not enough.56 The ihffc has also indicated that dissemination activities should stress the specific comparative advantage that the ihffc represents for States, such as the possibility to establish dialogues between the Commission and other institutions, its cooperation with other national ihl commissions, and its commitment to obtain observer status with international institutions that play important roles for the work of the Commission. Similar recommendations have been put forward in the 2010 report of the ihffc,57 which states that “[t]he establishment of a ‘group of friends’ or a like arrangement would be a helpful step in this direction”.58 The fact that the outreach of the Commission to other institutions has partly been successful can be seen by the fact that the European Council of the European Union made a cross-reference to the ihffc in Article 15(a) of its “Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law”.59 Furthermore, it is remarkable that the Council Presidency has urged all UN Member States that have not ratified the APs to do so and to accept the competence of the ihffc.60 Furthermore, if the ihffc was more frequently used by UN institutions, especially by the unsc acting under Chapter vii of the UN Charter, this would prevent the invocation of the missing consent of parties to the conflict due to Article 103 of the UN Charter: “[i]f the Commission initiates an enquiry upon request of the Unites Nations in such a case, the parties concerned could not 54

ihffc, ‘Report on the Work of the ihffc on the Occasion of its 20th Anniversary’, ­February 2011, at 28. 55 D. Fleck, ‘Die Internationale Ermittlungskommission: Probleme und Perspektiven einer neuen Einrichtung des Humanitären Völkerrechts’, in Schottler/Hoffmann (coords.), Die Genfer Zusatzprotokolle: Kommentare und Analysen (1993), at 259. 56 Garraway, supra note 14, at 816. 57 ihffc, supra note 54, at 28–30. 58 Ibid, at 29. 59 European Council, ‘Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law (ihl)’, OJ C303/12, 15 December 2009, at 398. 60 Ibid, at 399.

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object to that initiative on the basis of Article 90”.61 The use of the ihffc by other international institutions would avoid creating costly new institutions on an ad hoc basis, since the Commission as a permanent body already exists for the same purpose.62 In the end, this would be the same argument as the idea that eventually led to the creation of the icc. In this regard, it would also make sense if the unga would send a message to urge States which have not yet done so to submit a declaration under Article 90(2)(a) api.63 4 Conclusion As illustrated in this essay, the ihffc, as envisaged in Article 90 api, was created with great ambition during the Cold War, but, in many ways, could for a long time not live up to the expectation to serve as an effective compliance mechanism within the system of the 1949 GCs. One of the main reasons is the role that State consent plays in the establishment of the Commission and the complex procedure to start enquiries. As raised previously by other commentators, Article 90 api was initially intended to provide for the setting-up of a permanent enquiry mechanism, but it ended up almost as a provision “devoid of practical use”.64 While one could get the impression that the detailed procedure for setting up and engaging the Commission might have prevented States from resorting to it, this would neglect the fact that the procedure to trigger the competence of the ihffc is not so different from the triggering mechanism of the icj, as laid down in Article 36 icj Statute. The uncomfortable truth seems to be that the main obstacle for the success of the ihffc has been the fact that States are not willing to give either advance or ad hoc consent to fact-finding missions when it comes to issues connected to armed conflict and possible violations of ihl. Therefore, the main reason why other fact-finding and inquiry missions have been set up in the last couple of years was that the creation of these commissions were independent from (and sometimes against) the will of sovereign States. As demonstrated by the growing number of international (criminal) courts and tribunals dealing with violations of ihl, the two most successful approaches in setting up an effective justice mechanism was either by an ad 61 Kussbach, supra note 22, at 185. 62 Ibid. 63 Fleck, supra note 55, at 259; Garraway, supra note 14, at 262. 64 A. Mokhtar, ‘Will This Mummification Saga Come to an End? The International Humanitarian Fact-Finding Commission: Article 90 of Protocol 1’, 22(2) Penn State International Law Review (2003), at 309–311.

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

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the ­Commission’s competence. Especially after the successful example of the investigation mission in Eastern Ukraine in spring 2017, it looks as if the “Sleeping Beauty” has awoken. Therefore, the Commission now has the chance to go beyond being dead letter law, as originally ­predicted by the Syrian delegate in the 1977 Diplomatic Conference,67 but rather could find its place in the important area of ensuring compliance with ihl. The ihl ­community should hope that the latter tendency prevails, building upon the success demonstrated by its first official investigation in Eastern Ukraine in May 2017.

67

Ibid, at 309–311.

The Role of United Nations Commissions of Inquiry in the Implementation of ihl: Potential and Challenges Théo Boutruche* Abstract The number of Commissions of Inquiry (CoI or CoIs), especially those established by the UN, has increased significantly over the last years. Such bodies may refer to and apply various norms of ihl. Based on examples derived from the practice of different CoIs, this contribution considers how they may strengthen respect for this body of law. This may be achieved by elucidating allegations of violations, addressing controversial behaviour on the battlefield, clarifying the contents and interpretation of norms, and providing a basis for criminal prosecutions. However, significant challenges stand in the way of realising this potential, including one-sided mandates, the information and evidence available, ihl expertise, and the relationship with International Criminal Law. The value of CoIs should consequently not be overstated.

1 Introduction While the creation of fact-finding bodies in the international realm is not new, the proliferation of such institutions over the past two decades, in particular those created by the UN is striking. Recent years have seen the UN Human Rights Council (unhrc), the unsc, the unsg, and the unga establish factfinding missions and CoIs with different mandates in conflict or post-conflict contexts. At times, the creation of a CoI is even seen as the international community’s sole response to a situation of international concern in the absence of agreement on other measures. Even so, such as in the case of Yemen before the unhrc, the process itself of establishing a CoI or even a watered down option may give rise to a diplomatic struggle. * Théo Boutruche is Instructor at Notre-Dame University, Lebanon. He is also an Independent Consultant in International Humanitarian Law and Human Rights. The views expressed are those of the author alone and do not necessarily reflect the views of any institution the ­author is affiliated with.

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_006

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The mandates of CoIs may vary. Some are strictly limited to establishing facts on disputed incidents. For example, the UN boards of inquiry set up by the unsg, such as the UN Headquarters Board of Inquiry on the 2014 Gaza Conflict, are “directed not to include in [their] report any findings of law”.1 Similarly, the UN Mission to Investigate Allegations of the Use of Chemical Weapons in Syria was strictly mandated to “ascertain the facts related to the allegations of use of chemical weapons”.2 However, UN CoIs are more commonly tasked to address alleged human rights and ihl violations, leading those organs to both ascertain facts and qualify them as violations of relevant norms. For example, the unsc created the International Commission of Inquiry on Darfur in 2004 and the unhrc established fact-finding missions and CoIs to address alleged violations committed during the war in Lebanon in 2006, the Gaza conflict in 2009 and 2014, and the conflicts in Libya and Syria in 2011. Such bodies may also be mandated, as in the latter case, to identify perpetrators. Although rare, some mandates focus only on determining the actors responsible for certain conduct, such as the Organisation for the Prohibition of Chemical Weapons (opcw) – UN Joint Investigative Mechanism (jim) created by the unsc in 2015 and entrusted with identifying those involved in the use of chemical weapons in Syria. The increased resort to CoIs led some scholars to ask whether they constitute a new form of adjudication in the absence of compulsory universal jurisdiction by international judicial bodies.3 With regard to ihl in particular, the role and potential contribution of CoIs in relation to ihl are manifold. First and foremost, CoIs, when carrying out their mandates – and due to the context in which they operate – refer to a wide range of ihl issues and apply relevant ihl norms. This is so even when they are only meant to reach factual findings. In this regard, the language used to describe facts carries some legal implications in situations in which ihl applies. For example, the factual account of the steps taken by the UN Relief and 1 unsg, Summary by the Secretary-General of the Report of the United Nations Headquarters Board of Inquiry into Certain Incidents that Occurred in the Gaza Strip between 8 July 2014 and 26 August 2014, Annex to Letter dated 27 April 2015 from the Secretary-General addressed to the President of the Security Council, S/2015/286, 27 April 2015, para. 4. 2 unsg, Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, A/67/997-S/2013/553, 13 September 2013, at 4, para. 1. 3 D. Akande, H. Tonkin, ‘International Commission of Inquiry: A New Form of Adjudication’, ejil: Talk!, 6 April 2012, available at: https://www.ejiltalk.org/international-commissions-of -inquiry-a-new-form-of-adjudication/.

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Works Agency for Palestine Refugees in the Near East, to communicate and inform the Israeli Military of the gps coordinates of UN premises, as well as the reference to their obligations to take all actions necessary to prevent any damage to UN facilities, hint directly at ihl language on precautions in attack. Unsurprisingly, this is the contribution of CoIs that received the greatest attention to date, in particular when they interpret certain rules of ihl of unsettled meaning and scope, and consequently may also contribute to the progressive interpretation of international law norms.4 This can indirectly help ensure better respect for ihl by further clarifying the norms and making them understandable to parties to a conflict, through their application to particular facts and conduct in armed conflict. However, the increasing resort to CoIs to address alleged ihl violations raises the question of their potential contribution to the implementation of ihl as such. It is topical to note that the question of implementation and the limitations of existing ihl compliance mechanisms constitute one of the key weaknesses of ihl.5 As highlighted by an expert, “insufficient observance of its rules, is probably the greatest current challenge to the continued credibility of [ihl]”.6 This being said, scholars also acknowledge that, unlike other branches of international law, ihl provides more elaborate and specific mechanisms,7 and that some of those function despite their limitations.8 Furthermore, ­Marco Sassòli points out that, while the “credibility gap between the law and reality is growing”, the disconnection between the protection expected from ihl and what ihl delivers is “broader in perception than in reality”.9 This 4 T. Rodenhäuser, ‘Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic’, ejil: Talk!, 13 April, 2013, available at: https://www.ejiltalk.org/progressive-development-of-inter national-human-rights-law-the-reports-of-the-independent-international-commission-of -inquiry-on-the-syrian-arab-republic/. 5 See for example: M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect In War, Vol. i (2006), Chapter 13, at 3; A. Roberts, ‘The Laws of War: Problems of Implementation in Contemporary Conflicts’, 6(1) Duke Journal of Comparative & International Law (1995), at 11–78; T. Pfanner, ‘Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims’, 91(874) irrc (2009), at 279–328. 6 J. Pejić, ‘Strengthening Compliance with ihl: The ICRC-Swiss Initiative’, 98(901) irrc (2016), at 315. 7 F. Kalshoven, Y. Sandoz (eds.), Implementation of International Humanitarian Law Research Papers by Participants in the 1986 Session of the Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law (1989), at xii. 8 M. Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’, 10 yihl (2007), at 45. 9 Ibid, at 67 et seq.

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author, ­however, warns of the ensuing risk of further erosion of respect for ihl. Against this backdrop, it is tempting to assume or take for granted that CoIs contribute to bridging gaps in the implementation of ihl, not least because States recognized fact-finding as a means of ensuring better respect for ihl when they included a fact-finding body, the International Humanitarian FactFinding Commission (ihffc), as part of ihl specific implementation mechanisms. Furthermore, the same way as international human rights protection mechanisms, including regional courts, play an increasing role in addressing the absence of ihl procedural remedies, CoIs could be seen as a way to fill the gap left by the very limited use of enquiry mechanisms under ihl treaties, in particular the ihffc. This piece is neither meant to be exhaustive, nor aims at providing empirical data as a method to establish whether this contribution is merely perceived or real. It only focuses on the most significant aspects of how CoIs can strengthen respect for ihl by using some examples, while also looking at related ­challenges. This is done by referring to existing ihl implementation ­mechanisms and functions as a background, in particular those with the aim of ensuring greater respect for the law in times of war and those meant to repress violations. ­Ultimately, the value of CoIs should not be overstated, not least because the key challenge that undermines ihl specific implementation mechanisms remains relevant for CoIs as well: how to guarantee effective compliance by belligerents in times of war, a period characterised by the lack of trust between the parties to the conflict accompanied by mutual accusations of violations? 2

Fact-Finding as an Integral Component of Existing ihl Implementation Mechanisms

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

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is ­necessary to consider two procedures in particular entrusted with the same broad function as CoIs: the “Enquiry Procedure” under the 1949 GCs10 and the ihffc provided for in Article 90 api. Enquiry refers to the general process of elucidating facts, given that it is the varied perceptions of these facts that often give rise to the dispute in the first place.11 It is, at times, used as a synonym for fact-finding. The notion of enquiry has met resistance from States,12 especially in the field of ihl. This reluctance may be explained by the very purpose of the enquiry, which is related to alleged violations of an ihl treaty that may require establishing the facts as well as drawing legal conclusions. In light of those potentially far-reaching consequences for States, any attempt to create an automatic procedure of enquiry in the 1949 GCs failed, and the mechanism adopted relies on the ad hoc consent of the parties.13 The negotiations on the creation of an ihffc in api during the Diplomatic Conference of 1974–1977 gave rise to similar difficult debates, partly due to efforts to address the weaknesses of the enquiry procedure under the 1949 GCs. The establishment of the ihffc pursuant to Article 90 api was a significant step forward. It is competent to “enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol” and to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”. Unlike the enquiry procedure under the GCs, the ihffc is a permanent body, which was officially constituted in 1991. In that respect, this is a new ihl compliance mechanism, with the potential to fill the existing institutional gap in the field of investigating ihl violations. However, the ihffc may only conduct its work with the consent of the parties involved. Consequently, despite the contribution of the ihffc to the ongoing debate on strengthening compliance with ihl, and notwithstanding a declaration made by some 72 States accepting the competence of the ihffc, as a result of a combination of lack of political 10

Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950). 11 A. Jachec-Neale, ‘Fact-Finding’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (2011), para. 1. 12 1952 icrc Commentary gci, at 375. 13 The enquiry procedure is envisaged by Articles 52 gci, 53 gcii, 132 gciii, 149 gciv as part of the Chapter on Repression of Abuses and Infractions. See: 1952 icrc Commentary gci, at 376–377.

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

Fact-Finding by CoIs as a Means to Implement ihl during Armed Conflicts: An Effective Panacea?

Given the prominent role played by CoIs, it is imperative to discuss whether these organs contribute to the implementation of ihl, while also considering 14

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

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related challenges. This potential is relevant in relation to two types of implementation, namely respect for ihl during armed conflicts and repression of ihl violations through individual criminal responsibility. 3.1 Contributions by CoIs 3.1.1 Elucidating Facts to Rebuke False Claims Fuelling More Violations During or in the aftermath of an armed conflict, all actors claim that violations of ihl have occurred. The primary purpose of fact-finding is establishing “what really happened” and ensuring that the facts are not lost among streams of false accusations. While ascertaining facts about alleged violations does not in itself prevent further violations, it fundamentally contributes to establishing a record of the facts to both highlight the actual behaviour of parties to a conflict and helps, on this basis, determining whether ihl violations took place. It, therefore, avoids unfounded claims, which would not be settled for a prolonged period of time, fuel resentment between communities and belligerents, and lead to acts of vengeance, including further violations of ihl in the case of renewed armed conflict.19 However, this potential contribution should not be overstated in that, even when facts about violations have been convincingly established, parties to a conflict can remain defiant and continue claiming that violations did not happen. Such attitudes will, even so, be more easily challenged if facts are established by an independent authority. In addition, the positions of such parties will have to evolve from contesting that the alleged facts occurred, to arguing that they do not amount to ihl violations, forcing them to provide information of the reason for such claims. Fact-finding in ihl is, as a result, traditionally seen as a means to ensure the implementation of this body of norms.20 In this regard, the ihffc is understood to be mandated to contribute to respect for ihl, although this is not explicitly stated.21 The striking lack of a properly functioning ihl mechanism tasked with performing this purpose constitutes, in and of itself, a strong argument for the added value of CoIs. Nonetheless, it is true that a distinction must be made between, on the one hand, CoIs fulfilling a key role in establishing a 19 20

21

Independent International Fact-Finding Mission on the Conflict in Georgia, ‘Report’, Vol ii, September 2009, para. 430. S. Vité, Les Procédures Internationales d’Établissement des Faits dans La Mise en Oeuvre du Droit International Humanitaire (1999); M. Bothe, ‘Fact-Finding as a Means of Ensuring Respect for International Humanitarian Law’, in W. Heintschel von Heinegg, V. Epping (eds.), International Humanitarian Law Facing New Challenges (2007), at 249. L Condorelli, ‘The International Humanitarian Fact-Finding Commission: an Obsolete Tool or a Useful Measure to Implement International Humanitarian Law?’ 83(842) irrc (2001), at 393.

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record and a factual assessment of alleged violations in a given conflict, and, on the other hand, their contribution in actually changing the behaviour of parties to the conflict on the ground. 3.1.2 Singling Out Controversial Behaviour on the Battlefield The ultimate test for CoIs to contribute to the implementation of ihl lies in their capacity to initiate changes in the controversial behaviour of parties to a conflict. This is, as such, the core issue of ihl implementation as a whole. Despite the challenge in identifying a causal link between the findings of CoIs and actual changes in unlawful conduct during warfare, CoIs do contribute to the identification of patterns and issues in the conduct of warfare that need to be addressed and changed. This ranges from issues pertaining to rules of engagement to practices that either amount to ihl violations or that risk leading to ihl violations. One of the US investigations into the US attack on the Médecins Sans ­Frontières Trauma Centre in Kunduz, Afghanistan, on 3 October 2015, is a case in point. While the investigation was criticised for lack of impartiality and for not considering certain aspects of International Criminal Law,22 this attack provides some interesting perspectives on the role of fact-finding in ­addressing conduct in warfare, apart from the failed attempt to use the ihffc.23 The US Central Command investigation report, based on the findings that the attack “was caused by a combination of human errors, compounded by process and equipment failures”, refers to a series of measures aimed at ­ensuring that such issues would not happen again in the future, including “operational improvements”.24 While it remains to be seen if those ­recommendations will lead to changes on the ground, fact-finding work on allegations of ihl 22

23

24

See for example: J. Horowitz, ‘Was the Kunduz Strike a War Crime?’ Just Security, 5 ­ ctober 2015, available at: https://www.justsecurity.org/26569/kunduz-strike-war-crime/; O P. Margulies, ‘Centcom Report on the Kunduz Hospital Attack: Accounting for a Tragedy of Errors’, Lawfare, 2 May 2016, available at: https://www.lawfareblog.com/centcom-report -kunduz-hospital-attack-accounting-tragedy-errors. On the discussion about the jurisdiction of the ihffc in this case, see: C. Harwood, ‘Will the “Sleeping Beauty” Awaken? The Kunduz Hospital and the International Humanitarian Fact-Finding Commission’, ejil: Talk!, 15 October 2015, available at: https://www.ejiltalk .org/will-the-sleeping-beauty-awaken-the-kunduz-hospital-attack-and-the-international -humanitarian-fact-finding-commission/. US Central Command, ‘Summary of the Airstrike on the msf Trauma ­ Center in Kunduz, A ­ fghanistan on October 3, 2015 – Investigation and Follow-on Actions’, 29 April 2016, available at: http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press -Release-View/Article/904574/april-29-centcom-releases-investigation-into-airstrike -on-doctors-without-borde.

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v­ iolations or controversial incidents can, in principle, help single out questionable behaviour. The increasing use of CoIs offers more opportunities for an impartial assessment of problematic conduct in warfare. For example, the Independent Commission of Inquiry on the Gaza Conflict, in its report, addressed the “roofknock” strikes used by Israel as advance warnings before launching attacks during the 2014 conflict. Interestingly, the Commission focuses not on this type of warning as such, but on how they were not effective for civilians to act upon them and find safety in the context of the Gaza Strip. This was due to the confusion they caused for civilians in such a densely populated area,25 or to the lack of time left between the warning and the actual attack.26 The Commission concluded that the practice of using “roof-knock” strikes should be modified in light of growing evidence that they were not effective during the first days of the offensive.27 The fact-finding conducted in relation to the various aspects of this type of warning, and the related circumstances of their use in that particular conflict, cautiously indicates that this practice is questionable in relation to attackers’ obligations on precautions in ihl. More generally in the field of targeting practices, the contribution of CoIs in raising concerns over controversial conduct by parties to a conflict is even more significant. For example, the Independent International Commission of Inquiry on Syria singled out “double-tap” air strikes, which may be defined as “a second attack on a target/area [that] follows shortly after the first, having the effect of killing and injuring those who came to provide aid to, mourn or remove bodies of the victims of the first attack”.28 This practice may amount to a violation of different ihl norms, such as the obligation to collect and care for the wounded and sick or the prohibition to attack civilian humanitarian relief personnel.29 25 26 27

28 29

UN Human Rights Council, Report of the Detailed Findings of the Independent Commission of Inquiry established pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CRP.4, 22 June 2015, para. 236. Ibid, para. 237. Ibid, para. 242. The Commission noted: “The limited effectiveness of these precautionary measures must have become abundantly clear during the early days of the operation, given that many buildings were completely destroyed together with their inhabitants. The apparent lack of steps taken to re-examine these measures in light of the mounting civilian toll suggests that Israel did not fully comply with its obligation to take all feasible precautions in attack”. UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/34/64, 2 February 2017, at 10, fn. 4. See for example: paras. 39, 43. Ibid, para. 49.

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

30 Akande, Tonkin, supra note 3. 31 Sassòli, supra note 8, at 67. 32 For example, see generally: K.J. Heller, ‘The International Commission of Inquiry on Libya: A Critical Analysis’, in J. Meierhenrich (ed.) International Commissions: The Role of Commissions of Inquiry in the Investigation of International Crimes (2013); S. Ratner, ‘Accountability and the Sri Lankan Civil War’, 106(4) ajil (2012); J. Stewart, ‘The UN Commission of Inquiry on Lebanon: A Legal Appraisal’, 5(5) jicj (2007). 33 Rodenhäuser, supra note 4.

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3.2 Challenges Associated with CoIs 3.2.1 One-Sided Mandates The context of its creation, the type of authority establishing a CoI outside the ihl arena, and the mandate conferred upon it, may hamper a CoI in carrying out its basic fact-finding function. For example, on 1 September 2014, the unhrc convened a special session on “the human rights situation in Iraq in light of abuses committed by the Islamic State in Iraq and the Levant and associated groups”. During this meeting, it mandated the ohchr to: dispatch a mission to Iraq to investigate alleged violations and abuses of international human rights law committed by the so-called Islamic State in Iraq and the Levant and associated terrorist groups, and to establish the facts and circumstances of such abuses and violations, with a view to avoiding impunity and ensuring full accountability […].34 Such a one-sided mandate may be highly questionable when considering that violations were also carried out by other parties to the conflict, in particular pro-government Shia militias outsourced by the Iraqi authorities to fight the “Islamic State”.35 Certainly, the decision to establish an investigative process resulted from the growing concern within the international community over the extent and types of abuses committed by this group in Iraq. Nevertheless, the final ohchr investigative report interestingly went beyond the limitations of its mandate, in part due to the general human rights mandate of this agency, and provided information on violations committed by the “Islamic State”, as well as other parties to the conflict.36 However, this illustrates the recurring issue of selectivity in human rights fact-finding. This is particularly problematic in the area of ihl, in light of the principle of equality of belligerents, according to which ihl applies equally to all parties to an armed conflict and imposes the same obligations on them.37 34

35 36

37

UN Human Rights Council, The Human Rights Situation in Iraq in the light of the abuses committed by the so-called Islamic State in Iraq and the Levant and Associated Groups: Resolution adopted by the Human Rights Council, A/HRC/RES/S-22/1, 3 September 2014, para. 10. See for example: Human Rights Watch, ‘Iraq: Militias Escalate Abuses, Possibly War Crimes – Killings, Kidnappings, Forced Evictions’, 15 February 2015. UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the so-Called Islamic State in Iraq and the Levant and Associated Groups, A/HRC/28/18, 13 March 2015, at 11–14. Article 96(2)(c) api.

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Creating a mechanism tasked with investigating only one party to the conflict may be perceived as dismissing the obligations of the other parties. Such selectivity also arises in relation to the decision to set up a CoI. The lengthy and thorny process leading to the establishment of a form of investigation in relation to Yemen by the unhrc (after some Western States had dropped an initiative for the establishment of a unhrc CoI to investigate alleged violations of ihl in Yemen, during the unhrc’s 30th session in ­September 2015) constitutes a recent example. Consequently, while this is inherent to the intergovernmental nature of the organs at stake, this greatly impacts on the capacity of those CoIs to fully compensate for the absence of an ihl specific fact-finding effective mechanism. 3.2.2 The Information and Evidence Available to CoIs Although not specific to CoIs, certain unique aspects of fact-finding in relation to alleged violations of ihl, as opposed to documenting human rights abuses, pose further challenges. Fact-finding is commonly based on various sources of information or evidence (usually classified in three categories: physical, documentary and testimonial) but, in practice, fact-finding bodies primarily and overwhelmingly rely on testimonies, be it direct-eye witnesses or expert testimonies. In the context of ihl fact-finding, those may prove insufficient to provide the relevant facts needed to make legal determinations as to whether ihl violations were committed, especially in the field of the conduct of hostilities. They, for example, only shed light on a particular aspect of an attack and need not address all relevant circumstances. Most importantly, there is a constant need to take into account two distinct matters. The first one concerns the issue of time. The legality of an attack depends on an ex ante evaluation by the attacker, while the facts are established ex post. The second concerns the actor involved, i.e. the attacker or the defender. This is complicated by the fact that, as mentioned, some mandates are restrictive regarding the parties to a conflict to be assessed by a CoI. In the case of the Commission of Inquiry on Lebanon, the unhrc resolution defining the mandate specifically focuses on the conduct of Israel, excluding other parties to the conflict (notably Hezbollah) from the scope of the mission’s work. The commissioners, mindful of this limitation, specifically addressed this issue in the final report. In more specific terms, they noted that “any independent, impartial and objective investigation into a particular conduct during the course of hostilities must of necessity be with reference to all the belligerents involved” and, thus, “an inquiry into the conformity with international ­humanitarian law of the specific acts of idf [Israeli Defense Forces] in Lebanon requires

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that ­account also be taken of the conduct of the opponent”.38 Interestingly, a similar limitation contained in the unhrc resolution creating the Gaza Factfinding Mission was adjusted in the letter of the unhrc President that slightly redefined the mandate.39 Based on this letter, which the mission considered to be the operative mandate, it “determined that it was required to consider any actions by all parties that might have constituted violations of international human rights law or international humanitarian law”.40 3.2.3 ihl Expertise CoIs have, at times, adopted a more human rights oriented approach when interpreting and applying ihl norms. They have even adopted definitions and positions that either differ from commonly agreed upon concepts under ihl or are not well settled. This was raised, in particular, in the context of the aforementioned ICRC/Swiss Initiative and seen as a challenge for CoIs, due to the lack of “requisite ihl expertise and/or mandate to engage in a qualified examination of the application of ihl norms”.41 A telling example relates to the determination by the Independent International Commission of Inquiry on Syria that the evacuation of the civilian population from Eastern Aleppo “amounts to the war crime of forced displacement” 38

See: UN Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1, A/HRC/3/2, 23 November 2006, para. 16. However, it was also noted that, “taking into consideration the express limitations of its mandate, the Commission is not entitled, even if it had wished, to construe it as equally authorizing the investigation of the actions by Hezbollah in Israel”. 39 UN Human Rights Council, The Grave Violations of Human Rights in the Occupied ­Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip, A/HRC/S-9/1, 12 January 2009, para. 14 states that the mandate is “to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression”. However, the subsequent letter of the hrc president to the Chair of the Mission offers a broader mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009”. See: UN Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 S­ eptember 2009, para. 1. It is reported that, following Mary Robinson’s refusal to head the mission, and after the first objection by Justice Goldstone, both of whom criticized the bias of the mandate, the hrc president widened the mandate’s scope to encompass the conduct of Hamas. See: ‘Goldstone’s UN Inquiry Team arrives in Gaza’, bbc News, 1 June 2009. 40 UN Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009, para. 11. 41 Pejić, supra note 6, at 321.

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since it was made “for strategic reasons” and “not for the security of civilians or imperative military necessity”.42 Such classification was criticised.43 The finding of the Côte d’Ivoire Commission that, since the conflict did not take place on the whole territory of the country, ihl only applied to the parts of the country where a non-international armed conflict was effectively ongoing, constitutes another example.44 This appears to contradict the well-­established jurisprudence of the icty. Specifically, in the Tadić case, the ­Appeals Chamber stressed that “the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities”.45 In this case, the Appeals Chamber rejected the argument of the appellant on the grounds that ihl pertains not only to those areas where actual fighting takes place, but rather to the entire territory of the State involved in armed conflict. Another striking example is the final report of the Libya Commission, which stresses: “international human rights law obligations remain in effect and operate to limit the circumstances when a State actor – even a soldier during internal armed conflict – can employ lethal force”.46 By employing an approach whereby ihrl limits the use of force against legitimate lawful targets under ihl, the Libya Commission adopts a very progressive interpretation of the interplay between ihl and ihrl regarding the use of lethal force. 4

CoIs as the Antechamber of Criminal Responsibility for ihl Violations?

Given the progress made in the field of repressing serious violations of ihl, as a means of implementation through the development of international 42 43

44 45 46

UN Human Rights Council, supra note 28, para. 93. See: K. Ambos, ‘Evacuation of Civilian Populations and Criminal Complicity: A Critical Appraisal of the February 2017 Report of the Syria Commission of Inquiry’, ejil: Talk!, 24 May 2017, available at: https://www.ejiltalk.org/evacuation-of-civilian-populations-and -criminal-complicity-a-critical-appraisal-of-the-february-2017-report-of-the-syria -commission-of-inquiry/; E. Pothelet, ‘The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?’ ejil: Talk!, 14 March 2017, available at: https://www.ejiltalk.org/ the-evacuation-of-eastern-aleppo-humanitarian-obligation-or-war-crime/. UN Human Rights Council, Rapport de la Commission d’Enquête Internationale Indépendante sur la Côte d’Ivoire, A/HRC/17/48, 1 July 2011, para. 89. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, icty, Appeals Chamber, 2 October 1995, para. 70. UN Human Rights Council, Report of the International Commission of Inquiry on Libya, A/HRC/19/68, 8 March 2012, para. 60.

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c­ riminal courts and tribunals, it comes as no surprise that the question of the contribution of CoIs received significant attention in this regard. Their function to serve as a preliminary step to initiate subsequent legal proceedings has been highlighted as a prominent feature.47 However, the institutional and substantive development of International Criminal Law should not be conflated with the assumption that CoIs contribute naturally to this process as an efficient antechamber of criminal judicial proceedings. A more nuanced approach is required. First, limitations pertaining to certain institutions, in particular the icc, remain prominent. For example, despite the role played by the Darfur Commission of Inquiry in bringing cases before the icc, arrest warrants against Al-Bashir and other individuals have not been enforced to date. Consequently, other CoIs, such as the Independent International Commission of Inquiry on Syria, have relied on other fora. It is interesting to note that, due to the deadlock before the unsc, this Commission considered domestic prosecutions for war crimes to overcome that obstacle.48 In that respect, the reliance on n ­ ational courts under the principle of universal jurisdiction to achieve accountability makes use of a traditional ihl implementation mechanism provided for in ihl treaties. The recent veto by Russia before the unsc to a resolution renewing the mandate of the jim, tasked with identifying perpetrators of the use of chemical weapons in Syria, illustrates how the political dimension also impacts CoIs even before considering a formal criminal process.49 Apart from the issue of the forum to achieve accountability, the increasing use of CoIs to identify individual perpetrators also raises methodological and legal issues pertaining to the relationship between ihl and International Criminal Law standards, such as the question of the standards of proof to be used by those bodies.50 For example, a CoI entrusted with a mixed mandate of not only establishing the facts of alleged violations committed by a State and by non-State actors, but also identifying individuals, may have to apply 47

48 49 50

See for example: M. Frulli, ‘UN Fact-Finding Commissions and the Prosecution of War Crimes: An Evolution Towards Justice-Oriented Missions?’; S. Vezzani, ‘Fact-Finding by International Human Rights Institutions and Criminal Prosecution’, in F. Pocar, M. ­Pedrazzi and M. Frulli (eds.) War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (2013), at 331–348, 349–368. Reuters, ‘U.N. Investigators Sharing Syria War Crimes Findings with European Authorities’, 17 March 2015. Reuters, ‘Russia Vetoes Extension of Mission Probing Chemical Weapons Use in Syria’, 24 October 2017. See for example: S. Wilkinson, ‘Standards of Proof in International Humanitarian and Human Rights Fact-Finding and Inquiry Missions’, Geneva Academy of International Humanitarian Law and Human Rights.

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d­ ifferent standards of proof, and not just a mere “balance of probabilities” evidentiary threshold to make its determinations concerning individuals. For example, the International Commission of Inquiry on Darfur had to identify individual perpetrators, and therefore resorted to a combined formula without reaching the higher standard of proof used by criminal tribunals.51 Conversely, an excessive focus on criminal prosecutions as the most important ihl implementation is misleading. As noted by Marco Sassòli, “[this] may also give the impression that all behaviour in armed conflict is either a war crime or lawful”, increasing “frustration and cynicism about ihl and its effectiveness, which in turn facilitates violations”.52 Furthermore, criminal proceedings provide for a much more narrow framework, whereas CoIs operate with much broader and more flexible mandates and procedures. While a dialogue between CoIs and international criminal justice actors is key to ensure synergy and greater effectiveness, the reference and use of notions derived from criminal investigations and criminal law proceedings in the work of CoIs raises a more fundamental question regarding the potential influence of International Criminal Law terms and language over fact-finding methodology. The scope and elements of the “migration” process of International Criminal Law from the courtroom into the fact-finding work of CoIs only recently received attention from scholars, be it in terms of using similar legal frameworks for different purposes53 or in terms of methodology.54 Jacobs and Harwood provide an in-depth analysis of the impact of an International Criminal Law focus on the quality of fact-finding, both “in terms of the quality of procedural aspects of commissions’ work, including through the adoption of evidentiary standards and substantive aspects of fact-finding”.55 While CoIs commonly state that they are not judicial or quasi-judicial bodies, as pointed out by Jacobs and Harwood, such fact-finding bodies use some procedures and terms that correspond to those found in judicial contexts “in the desire to produce credible reports and collect information which may assist subsequent 51

Report of the International Commission of Inquiry on Darfur to the United Nations S­ ecretary-General, 25 January 2005, para. 15. 52 Sassòli, supra note 8, at 54. 53 L. van den Herik, C. Harwood, ‘Commissions of Inquiry and the Charm of International Criminal Law. Between Transactional and Authoritative Approaches’, in P. Alston, S. Knuckey (eds.), The Transformation of Human Rights Fact-Finding (2015), at 233–254. 54 D. Jacobs, C. Harwood, ‘International Criminal Law Outside the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding by International Commissions of Inquiry’, in M. Bergsmo (ed.), Quality Control in Fact-Finding (2013), at 325–326. 55 Ibid, at 327.

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prosecutions”56 such as taking witness testimony under oath and seeking to hear witnesses from different parties to the conflict. The influence of International Criminal Law on fact-finding also has its own limits. For instance, fact-finders’ activities may result in tainting evidence, rendering it unusable by prosecutors or affecting the credibility of witness statements by creating discrepancies of the same account through multiple interviews by various actors.57 These limitations mostly relate to the potential detrimental impact of certain actions or methods on judicial processes. Thus, while CoIs unquestionably contribute to criminal prosecutions for serious ihl violations at the international level and increasingly at the domestic level, with recent cases related to Syria before European courts,58 including by providing leads for investigations, this should not be the sole prism to address the impact of CoIs on ihl implementation. 5 Conclusion In light of the above, CoIs unquestionably contribute to the implementation of ihl, through elucidating allegations of ihl violations, addressing controversial behaviour on the battlefield, and by providing information to serve as a basis for criminal prosecutions for serious ihl violations. However, key challenges remain that should be further integrated in the methodology of the work of CoIs to make this contribution more effective. Furthermore, CoIs have their own limitations and should not undercut the need to strengthen efforts for ihl specific existing enquiry mechanisms to be used, or for new ones to be created. However, in the event that an enquiry procedure under the GCs is instituted, its functioning will undoubtedly be influenced by the emerging practice of fact-finding and inquiry missions created outside the ihl framework.

56 57 58

Ibid, at 334–335. Ibid, at 338. Human Rights Watch, ‘These are the Crimes we are Fleeing’ – Justice for Syria in Swedish and German Courts’, 3 October 2017.

The Intricate Relationship between International Human Rights Law and International Humanitarian Law in the European Court for Human Rights Case Law: An Analysis of the Specific Case of Detention in Non-International Armed Conflicts Damien Scalia and Marie-Laurence Hebert-Dolbec* Abstract The relationship between ihrl and ihl has proven tempestuous and ambiguous, thus allowing bodies responsible for their enforcement to engage in cherry picking. The issue of detention in non-international armed conflicts is not immune from this ­approach. In order to analyse this specific situation, this paper first aims to clarify the mutual influences between these two fields of law. To do so, the authors explore (1) how ihl bodies use ihrl, and (2) how, in turn, human rights bodies use ihl. With a specific focus on European case law, they (3) underline the problematic use of ihl by the ECtHR in the case of detention in non-international armed conflicts. On this basis, they conclude that maximum protection of detainees remains the judges’ main goal.

1 Introduction The relationship between ihl and ihrl is intricate. The links between these two bodies of law are tackled in a composite and discontinuous way. In order to grasp such linkages, authors generally diverge on the basis of three approaches. First, and most traditionally, some consider ihl and ihrl as two completely distinct branches of law, following what will be described here as a

* Damien Scalia is Professor at the Faculty of Law and Criminology, Université Libre de Bruxelles. Marie-Laurence Hebert-Dolbec is f.r.s.-f.n.r.s. Research Fellow and PhD Candidate at the International Law Center, Université Libre de Bruxelles. The views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with.

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_007

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separatist approach.1 Second, others adhere to an integrationist approach, according to which ihl and ihrl form one and the same legal order.2 Finally, an intermediate approach, qualified as complementary, may be identified. From this viewpoint, both bodies of law are applied, ensuring a better protection of individuals.3 Nowadays, the literature leans towards the latter approach and practice appears to do the same. As stated by Heintze, it seems that the co-existence or even merger of international humanitarian law and human rights is much more advanced in practical terms than in legal theory. Some scholars still regret that the detailed debate did not succeed in a common conclusion as to how the normative wealth of both branches of the law can combine to serve the protection of human beings.4 In a similar vein, Frumer underlines an overarching trend: international tribunals and organisations’ practice seems to favour a simultaneous application of ihl and ihrl.5 The icj, inter alia, followed this train of thought in numerous cases.6 For instance, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the icj declared that the protection offered by the iccpr shall continue to apply in times of armed conflict.7 Likewise, the 1 C. Swinarski, Introduction au Droit International Humanitaire (1984), at 16. 2 F. Martin, ‘Le Droit International Humanitaire Devant les Organes de Contrôle des Droits de l’Homme’, 1 Droits Fondamentaux 119 (2001). 3 H.-J. Heintze, ‘Theories on the Relationship between International Humanitarian Law and Human Rights Law’ in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013), at 57–61. 4 Ibid, at 53; S. Sayapin, ‘The International Committee of the Red Cross and International ­Human Rights Law’, 9(1) Hum. Rights Law Rev. 95 (2009), at 96; P. Frumer, ‘Quand Droits de l’Homme et Droit International Humanitaire s’Emmêlent – Un Regard Critique sur l’Arrêt Hassan c. Royaume-Uni (Obs. sous Cour Eur. Dr. H., Gde Ch., Arrêt Hassan c. Royaume-Uni, 16 Septembre 2014)’, 102 Revue Trimestrielle des Droits de l’Homme 481 (2015), at 485–486. 5 Frumer, supra note 4. 6 Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, 8 July 1996, para. 25; Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, 9 July 2004, para. 106; Judgment, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), International Court of Justice, 19 December 2005, para. 216. 7 Legality of the Threat or Use of Nuclear Weapons, supra note 6, para. 25. See also: E. ­Kristjansdottir, ‘Note: The Legality of the Threat or Use of Nuclear Weapons Under Current International Law: The Arguments Behind the World Court’s Advisory Opinion’, 30 N.Y.U. Int’l L. & Pol. 291 (1997–1998).

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ilc recognizes this principle of simultaneous application in two sets of Draft Articles.8 The simultaneous application of ihl and ihrl, however, triggers the question of whether there is a lex specialis and when it applies. An analysis of the practice in this regard does not show a general lex specialis, according to which one branch of law would fully substitute the other. It rather shows an in concreto application, on a case-by-case basis, of the most protective norm for ­human beings regardless of the situation, i.e. whether there is an armed conflict (where ihl would logically apply) or in times of peace (where only ihrl may apply). As argued by Gaggioli, the relationship between human rights and ihl must not be reduced to a mere equation: ‘ihl is always the lex specialis’ or ‘human rights law always provides a better protection than ihl’. The more we look at ­human rights and ihl rules, the more we discover the number and range of their mutual benefits. While analysing the right to life, we discovered, within each of these constituents, an amazing microcosm of interacting rules, which emphasises the panoply of mutual benefits and influences between human rights and ihl.9 The approach developed by Gaggioli is the starting point of the reflection developed in the next pages. The purpose is to explore the relationship between ihrl and ihl in one specific instance: detention in non-international armed conflicts. In such a case, we will show that human rights bodies do not feel compelled to invoke ihl in order to interpret their constitutive conventions. Whilst regional human rights courts, and more especially the ECtHR, consider that ihl can be used as an interpretative tool, in some instances ihl is rather not to be used. As the ultimate goal is to provide a better protection to persons deprived of liberty, ihrl is sometimes more auspicious in this sense. It goes without saying that, even though the two branches of law share some features and, most importantly their main purpose, to protect human beings,10 additional considerations must be taken into account. As a matter of fact, when 8

9 10

ilc, Draft Articles on the Effects of Armed Conflicts on Treaties and Commentaries (2011), art. 7 and Annex. See also: ilc, The Effect of Armed Conflicts on Treaties: an Examination of Practice and Doctrine. Memorandum by the Secretariat, A/CN.4/550, 1 February 2005, para. 32; ilc, Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries (2001), at 74, para. 3. G. Gaggioli, L’Influence Mutuelle entre les Droits de l’Homme et le Droit International Humanitaire à la Lumière du Droit à la Vie (2013), at 529 (our translation). Ibid, at 242.

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dealing with d­ etention in non-international armed conflicts, the discernible trend is for the ECtHR’s judges to favour the regime offering the best protection of individuals over any lex specialis. In order to understand the interaction between ihl and ihrl when it comes to detention in non-international armed conflicts, it should first be recalled how human rights are taken into account overall by ihl bodies. Secondly, the use of ihl by human rights bodies and specifically by the IACmHR and IACtHR as well as the ECtHR will be presented in general. Finally, we will try to explain why the latter body circumvents ihl in favour of ihrl in relation to non-international armed conflicts. 2

The Use of ihrl by Bodies Responsible for ihl Enforcement

An exhaustive analysis of how ihl bodies take ihrl into account is too ambitious for this contribution. Our focus will thus be on international criminal tribunals (i.e. repressive ihl institutions) and on the icrc. The practice of these institutions contains the best examples of the influence of ihrl over ihl. This influence can be qualified as legitimating.11 In other words, ihrl is used to justify developments of ihl. Depending before which international criminal jurisdiction one stands, the icty, ictr, or the icc, ihrl does not have the same status. Article 21(3) icc Statute states that internationally recognized human rights must be applied. However, the statutes and rules of the icty and ictr do not have equivalent provisions. Nevertheless, on many occasions these tribunals have referred to the case law of regional human rights courts or, at the very least, used this branch of international law in their decisions.12 For instance, ihrl was and is still relied on to develop the principles of law and the rights of the accused during the proceedings, and to define crimes and modes of l­iability. In several cases, the icty referred to general principles of law, such as the legality principle13 and the stare decisis principle.14 Likewise,

11 12

13 14

D. Scalia, ‘The Nulla Poena Sine Lege Principle: A Symptomatic Sign of Interactions between Strasbourg and The Hague’, in T. Mariniello, P. Lobba (eds.), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals (2017), at 131–148. E.g. Judgment, Prosecutor v. Tadić, icty, Appeals Chamber, 2 October 1995, paras. 44, 48–50; Judgment, Prosecutor v Furundžija, icty, Trial Chamber, 10 December 1998, para. 183. See also: U. Linderfalk, ‘Cross-Fertilisation in International Law’, 84(3) Nordic Journal of International Law 428 (2015). See also: Scalia, supra note 11, at 131–148. Judgment, Prosecutor v. Blaškić, icty, Appeals Chamber, 29 July 2004, para. 141. Judgment, Prosecutor v. Aleksovski, icty, Appeals Chamber, 24 March 2000, para. 95.

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international criminal tribunals used ihrl to define the right to freedom15 as well as preventive detention rights,16 impartiality,17 fair trial,18 or, before the icc, the right to freely choose counsel.19 Furthermore, international criminal jurisdictions also used ihrl to define the elements of the crimes they adjudicate. In several cases, the icty referred to ihrl in order to define a violation of human dignity or instances of inhumane treatment.20 In Aleksovski, for instance, the Trial Chamber referred to ECtHR case law and to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 to define inhuman treatment and enforce it in the context of international criminal law. In the same vein, the icty turned to ihrl to define torture,21 and to define rape as an act of torture.22 In Furundžija, the bench used expressis verbis the definition of torture contained in the 1984 Convention since neither Article 3 of its Statute nor ihl defined that offence.23 In the same decision, they relied on ihrl to define rape as torture.24 15

16

17 18 19

20 21 22 23

24

Décision Relative à la Requête aux Fins de Mise en Liberté Déposée par l’Accusé Slavko Dokmanoviċ, Prosecutor v. Dokmanoviċ et al., icty, Trial Chamber, 22 October 1997, ­paras. 27–28 and 64–67. In the same vein, the judges turned to human rights (echr and iccpr) in order to define the notion of “law” (para. 60). Decision on Motion for Provisional Release Filed by the Accused Zejnil Delaliċ, Prosecutor v. Delaliċ, icty, Trial Chamber, 25 September 1996, para. 19; Decision on Application for Interim Release, Prosecutor v. Bemba, icc, Pre-Trial Chamber iii, 16 December 2008, para. 31. Decision, Prosecutor v. Delaliċ, icty, Bureau on Motion on Judicial Independence (President McDonald, Vice-President Shahabuddeen, Judge Cassese and Judge Jorda), 4 ­September 1998. Decision on the Prosecution’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, Prosecutor v. Delaliċ, icty, Trial Chamber, 4 February 1998. Reasons for “Decision of the Appeals Chamber on the Defence application ‘Demande de Suspension de Toute Action ou Procédure afin de Permettre la Désignation d’un Nouveau Conseil de la Défense’ filed on 20 February 2007” issued on 23 February 2007, Prosecutor v. Lubanga, icc, Appeals Chamber, 9 March 2007, para. 15. Judgment, Prosecutor v. Delalić, icty, Trial Chamber, 16 November 1998, para. 462; ­Judgment, Prosecutor v. Blagojević, icty, Trial Chamber, 17 January 2005, para. 587. Judgement, Prosecutor v. Krnojelac, icty, Trial Chamber, 15 March 2002, para. 181; Judgment, Prosecutor v. Kvočka et al., icty, Trial Chamber, 2 November 2001, para. 142; ­Judgment, Prosecutor v. Kunarac et al., icty, Trial Chamber, 22 February 2001, para. 466. A. Cassese, ‘L’Influence de la cedh sur l’Activité des Tribunaux Pénaux Internationaux’, in A. Cassese, M. Delmas-Marty (eds.), Crimes Internationaux et Juridictions Internationales (2002), at 177–178. Judgment, Prosecutor v. Furundžija, supra note 12, para. 159. This jurisprudence has been repeatedly reiterated: Judgment, Prosecutor v. Delalić et al., supra note 20, paras. 481–493; icty, Prosecutor v. Kvočka et al., supra note 21, para. 145; Judgment, Prosecutor v. Kunarac et al., supra note 21, para. 437. Prosecutor v. Furundžija, supra note 12, paras. 170–171.

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As has been seen, international criminal tribunals and courts that prosecute ihl violations frequently use ihrl to justify (and legitimate) their approaches and decisions. But they are not alone. The mutual influence of ihrl and ihl may also be observed in the work of the icrc. Indeed, in its study on customary ihl as well as in the new commentaries to the GCs, ihrl is used to give a contemporary interpretation to the rules written in 1949. Since the Teheran Conference, the icrc has increasingly ­appraised ihrl.25 References to ihrl are now common.26 Indeed, while the icrc refused before 1968 to take ihrl into account because they were p ­ olitical rights, “the Committee now aims to protect and promote human rights, calls upon States to respect and promote human rights, notes that some practices or situations violate human rights, praises the UN work in developing human rights in armed conflicts, and acknowledges the general and specific complementarity of human rights and ihl”.27 In this regard, a report linking ihrl and ihl was published during the 31st International Conference of the Red Cross and Red Crescent in 2011. This report highlights that ihl is the lex specialis in times of armed conflicts. More importantly with respect to the present chapter, a specific part of this icrc report – as in many following reports – is dedicated to detention in non-international armed conflicts. Here, the question of the applicability of ihrl is primordial considering the controversy related to the application of ihl in this case. Indeed, the legal basis provided by ihl for detention in non-­international armed conflicts is unclear. Some commentators, such as Hill-Cawthorne, consider that “none of those provisions applicable in noninternational armed conflicts, comprising (principally) common Article 3 and Additional Protocol ii […], provides an explicit legal basis for internment. Nonetheless, ­applicable treaty rules recognize that parties to non-international conflicts will intern, regulating various aspects thereof, including treatment standards for detainees”.28 In other words, according to those authors, Article 3 and apii stand for the recognition and regulation of internment, but are not equivalent to an authorisation.29 25

R. Kolb, ‘Human Rights Law and International Humanitarian Law between 1945 and the Aftermath of the Teheran Conference of 1968’ in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013), at 35 ff. 26 Gaggioli, supra note 9, at 208–211. 27 Ibid. (our translation) 28 L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016), at 69. 29 Ibid, at 74. See also: M. Sassòli, L.M. Olson, ‘The Relationship between International ­Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ 90(871) irrc 599 (2008), at 618.

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Other commentators, however, find that conventional ihl applicable in non-international conflicts confers an implicit legal basis to intern.30 ihl is considered as the lex specialis and ihrl only fills the gaps or reinforces (or legitimates) what is already provided for in ihl. Consequently, for the icrc, the two bodies of law (ihl and ihrl) provide for similar protection with regard to four areas: “[r]ules on the treatment of detainees (in the narrow sense)”, “[r]ules on material conditions of detention”, “[f]air trial rights”, and “[p]rocedural safeguards in internment”.31 In this report, the icrc recognizes that “all of the acts are prohibited under both ihl and human rights law” and that “a common catalogue of standards could even be derived from both bodies of law” for the first and second category, respectively. For the third group of rights, the icrc states that ihl reinforces the relevant human rights provisions as “it allows no derogation from fair trial rights in situations of armed conflict”.32 Simply stated, the analysis provided by the icrc […] highlights that ihl remains the principal body of law to be applied during armed conflicts in the eyes of the icrc; that ihl differs in many ways from human rights (e.g. ihl directly binds upon organised armed groups unlike human rights); that ihl is sometimes at odds with human rights in times of armed conflicts particularly regarding the conduct of hostilities and the legal regime ­applicable to war prisoners and civilian detainees. However, the icrc recognises the importance of human rights as a complementary legal ­regime to ihl. Human rights may fill some gaps, for instance when individuals are targeted (i.e. in case of targeted killings) in non-belligerent States. In those cases, the icrc believes that ihl shall not be applied (so as not to risk a theoretical acceptance of a potentially global battlefield), but that these situations are still covered by customary international ­human rights law.33

30

See for instance: J. Dingwall, ‘Unlawful Confinement as a War Crime: The Jurisprudence of the Yugoslav Tribunal and the Common Core of International Humanitarian Law Applicable to Contemporary Armed Conflicts’, 9(2) Journal of Conflict and Security Law 133 (2004), at 150; G.S. Corn, ‘Enemy Combatants and Access to Habeas Corpus: Questioning the Validity of the Prisoner of War Analogy’, 5(2) Santa Clara Journal of International Law 236 (2007), at 260–261. 31 icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2011), at 15–18. 32 Ibid, at 16. 33 Gaggioli, supra note 9, at 213 (our translation).

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In another report, the icrc considers that: strengthening the legal framework applying to armed conflicts presupposes that complementary legal regimes – such as human rights law – are taken into consideration. The icrc believes that the international law of human rights applies both in times of peace and armed conflict. It is therefore essential that any development of humanitarian law avoids all unnecessary overlap with existing rules of international law, in particular human rights law. The added value of developing humanitarian law relates first to the regulation of non-international armed conflicts. Even though human rights law is applicable in such situations, it does not solve all humanitarian questions in practice, as it is only binding on States.34 Furthermore, a 2013 document specifies the necessity to take ihrl into account regarding detention in non-international armed conflict.35 Noting that ihl only partially regulates this type of deprivation of liberty, the icrc bases its analysis on ihl and ihrl norms. So, while ihl remains the principal focus of its activities,36 the icrc recognizes the importance of ihrl as a complementary legal regime to fill in the gaps in ihl, i.e. on detention in non-international armed conflict.37 3

The Use of ihl by Regional Human Rights Protection Mechanisms

If there is a trend towards the fertilisation of ihl by ihrl, human rights protection mechanisms conversely take ihl into account in their case law. To ­understand this approach, we will focus on the practice of the IACmHR, the IACtHR, and the ECtHR. Inter-American jurisdictions were prompt to consider ihl in their jurisprudence. In comparison, the ECtHR faltered, despite some encouraging positions adopted by the European Commission on Human Rights.38 Consideration of ihl in the ECtHR case law was, in this sense, rather belated and peripheral.

34 35

icrc, Strengthening Legal Protection for Victims of Armed Conflicts (2011), at 5. icrc, Strengthening Legal Protection for Persons deprived of their Liberty in relation to niac, Regional Consultations 2012–2013, Background Paper (2013), at 5. 36 icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2011). 37 Ibid. 38 Martin, supra note 2.

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Regarding the Inter-American situation, Martin explains that the IACmHR and the IACtHR “approached the problem of ihl enforcement in a more frontal way since they had to decide on their own competence to enforce ihl within the scope of article 4 achr which enshrines the right to life”.39 In other words, the Inter-American approach was “daring”.40 Following several references to ihl in its decisions,41 the IACmHR considered itself as competent to enforce ihl42 and has done so repeatedly.43 Nonetheless, as explained by Gaggioli and Martin, since 2000 there have been indications of a changing trend.44 The IACmHR became more conservative and has referred sporadically to ihl in its individual communications. Moreover, plaintiffs alleging violations in non-international armed conflicts no longer refer to ihl.45 This new trend has its roots in the case of Las Palmeras v. Colombia, where the IACtHR states that itself as well as the Commission do not have competence to enforce ihl.46 Even so, the IACtHR has still referred to ihl – without directly enforcing it – in several cases.47 For its part, the ECtHR has steadfastly refused to take ihl into account, even though it would have been useful (and legitimizing) to its reasoning. 39 Ibid, at 130–131 (our translation). 40 Gaggioli, supra note 9, at 169. For an analysis of how the IACtHR takes ihl into account: H. Tigroudja, ‘The Inter-American Court of Human Rights and International Humanitarian Law’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law 466 (2013); V. Gowlland-Debbas, G. Gaggioli, ‘The Relationship between International Human Rights and Humanitarian Law: an Overview’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law 77 (2013); Martin, supra note 2: H.-J. Heintze, ‘On the Relationship between Human Rights Law Protection and International Humanitarian Law’, 86(856) irrc (2004), at 802–805. 41 Report, Ccalloccunto v. Peru, Report No. 37/93, IACmHR, 7 October 1993; Report, Martí de Mejía v. Peru, Report No. 5/96, IACmHR, 1 March 1996; Decision of the Commission as to the Admissibility, Disabled Peoples’ International et al. v. United States, IACmHR, 22 September 1987; Decision of the Commission as to the Admissibility, Salas et al. v. United States, Report No. 31/93, IACmHR, 14 October 1993. 42 Report, Ribon Avila v. Colombia, Report No. 26/97, IACmHR, 30 September 1997. 43 E.g. Report, Bustios Saavedra v. Peru, Report No. 38/97, IACmHR, 16 October 1997; Report, Abella v. Argentina (“la Tablada”), Report No. 55/97, IACmHR, 18 November 1997; ­Report, Santiz Gomez et al. v. Mexico, IACmHR, Report No. 48/97, 18 February 1998; ­Report, Parada Cea et al. v. Salvador, Report No. 1/99, IACmHR, 27 January 1999. 44 Gaggioli, supra note 9, at 171. 45 Ibid. 46 Preliminary Objections, Las Palmeras v. Colombia, IACtHR, 4 February 2000. 47 Merits, Bámaca-Velásquez v. Guatemala, IACtHR, 25 November 2000, para. 207; Merits, Mapiripán Massacre v. Colombia, IACtHR, 15 September 2005, para. 114; Merits, Ituango Massacre v. Colombia, IACtHR, 1 July 2006, paras. 179–180; Merits, Vargas Areco v. Paraguay, IACtHR, 26 September 2006.

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It did so even when applicants invoked ihl violations.48 ihl nonetheless underpins some cases concerning Turkey and Chechnya.49 As Martin states, “ihl remains an ‘ombre chinoise’”.50 However, more recently, the ECtHR has begun to refer more regularly to ihl. In Markovic et al. v. Italy, the Court referred to ihl (more precisely to api) to reject the applicants’ claims for reparations.51 In 2008 and 2010, the ECtHR referred once more to ihl in order to decide whether the principle of legality under Article 7 of the echr could be violated when individuals were domestically prosecuted for international crimes that only existed on the international level at the time of the facts.52 The Court also alluded to ihl in the Varnava et al. v. Turkey case, stating that Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international ­humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict […]. [I]n a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in ­hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the icrc to do so.53 As explained by Frumer, “the Court seemed to establish in this field a conciliatory interpretation principle. The Court however refrained to explain how this

48 Martin, supra note 2; Gaggioli, supra note 9, at 175–176. 49 Judgment, Güleç v. Turkey, ECtHR, 27 July 1998; Ergi v. Turkey, ECtHR, 28 July 1998; Judgment, Isayeva et al. v. Russia, ECtHR, 24 February 2005; Judgment, Abuyeva et al. v. Russia, 2 December 2010; Judgment, Esmukhambetov et al. v. Russia, ECtHR, 29 March 2011; Judgment, Khamzayev et al. v. Russia, ECtHR, 3 May 2011; Judgment, Kerimova et al. v. Russia, ECtHR, 3 May 2011. 50 Martin, supra note 2, at 130 (our translation). 51 Judgment, Markovic et al. v. Italy, ECtHR, Grand Chamber, 14 December 2006, paras. 109, 111. 52 Judgment, Kononov v. Latvia, ECtHR, Former Third Section, 24 July 2008; Judgment, ­Kononov v. Latvia, ECtHR, Grand Chamber, 17 May 2010; Judgment, Korbely v. Hungary, ECtHR, Grand Chamber, 19 September 2008. 53 Judgment, Varnava et al. v. Turkey, ECtHR, Grand Chamber, 18 September 2009, para. 185.

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conciliation between relevant norms of ihl and of the Convention would apply in case of contradictions”.54 It was not until Hassan v. United Kingdom in 2014 – which particularly concerned detention – that the ECtHR formulated a tentative explanation of the relationship between ihl and human rights.55 In the early morning of 23 April 2003, a British military unit went to the residence of Khadim Resaan ­Hassan – a former leader of the Baa’th party and a general of the Al-Quds army – to arrest him.56 The latter had fled and the soldiers instead arrested his brother, Tarek Resaan Hassan.57 According to the British army, Hassan was stationed on the roof of the house armed with an assault rifle.58 He was taken to Camp Bucca, a detention facility administered by the United States, but some parts of which were used by the United Kingdom to detain and interrogate individuals.59 While first considered an enemy prisoner of war, Tarek Hassan was later labelled a civilian following the outcome of a screening process. Military authorities claim that he was released on 2 May 2003,60 but he was found dead on 1 September 2003. At the outset, the Hassan case constituted an opportunity for the ECtHR to confirm that a State party to the Convention may have extraterritorial jurisdiction in an international armed conflict. Extraterritorial jurisdiction, though exceptional, is well established in the ECtHR case law and can occur in two situations. First, when a State effectively controls an area outside its national territory. Second, when agents of a member State exercise their authority over individuals within the framework of operations conducted outside national territory. In the case of Hassan, the judges only considered the authority of British militaries over Tarek Hassan. They concluded that authority and control of member States’ agents over foreign individuals did not have to be absolute or exclusive but should be considered in concreto. More importantly, the judges rejected the United Kingdom’s argument that they should apply a distinction between situations of occupation (where a State’s jurisdiction pursuant to Article 1 of the echr could be established) and situations of active hostilities (where State would rather have to apply ihl).61 The Court stated that the echr and ihl apply in both cases. The Court, which 54 Frumer, supra note 4, at 482–483 (our translation). 55 Judgment, Hassan v. UK, ECtHR, Grand Chamber, 16 September 2014. 56 Ibid, para. 11. 57 Ibid. 58 Ibid. 59 Ibid, paras. 14–17. 60 Ibid, para. 28. 61 Frumer, supra note 4, at 485.

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refused to consider ihl as lex specialis, thus followed the trend of simultaneous application of ihl and ihrl.62 4

The Case of Detention in Armed Conflict before the ECtHR

The issue of the legality of detention in armed conflicts and more particularly of the relevant rules (ihrl or ihl) as assessed by the ECtHR is thorny. Following an analysis of its case law, three different case studies must be analysed: first, detention in international armed conflicts; second, the tentative application of ihl of international armed conflicts to detention in non-international armed conflicts; and, finally, the example of non-international armed conflicts. The first two case studies must be analysed together. On a number of occasions, the ECtHR indeed applied ihl of international armed conflicts, ­whether or not the actual conflict qualified as such. However, in our view, this distinction remains important. We must first take into consideration two recent and fundamental cases: Al-Jedda v. United Kingdom63 and Hassan v. ­United Kingdom.64 Al-Jedda caused a lot of ink to flow.65 In this case, the bench acknowledged that the United Kingdom violated Article 5 echr regarding detention in a situation of occupation. ihl was set aside in favour of ihrl, which offered more protection. The Court decided that ihl does not trigger the derogation mechanism as provided for in Article 5 of the Convention.66 The applicant was detained on imperative grounds of security. In particular, the British authorities suspected him to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against Coalition Forces in the areas around Fallujah and Baghdad; 62 Ibid, at 490. 63 Judgment, Al-Jedda v. UK, ECtHR, Grand Chamber, 7 July 2011. 64 Hassan, supra note 55. 65 G. Gaggioli, supra note 9; J. Pejić, ‘The European Court of Human Rights’ Al-Jedda Judgment: the Oversight of International Humanitarian Law’, 93(883) irrc (2011); N. Hervieu, ‘La Jurisprudence Européenne sur les Opérations Militaires à l’Epreuve du Feu’, 6 La ­Revue des Droits de l’Homme. Revue du Centre de Recherches et d’Etudes sur les Droits Fondamentaux (2014). 66 N. Hervieu, supra note 65.

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and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high-tech detonation equipment into Iraq for use in attacks against Coalition Forces. No criminal charges were brought against him.67 Freed in 2007, the applicant contended to have been detained in violation of Article 5 of the echr, as detention on security reasons is not listed as a ground for derogation. According to the government, the detention was legal since relevant unsc resolutions authorised the multinational force (which the United Kingdom was part of) to take “all necessary measures to contribute to the maintenance of security and stability of Iraq”.68 Detention was not listed as such in Resolution 1546,69 but rather in its annexed letters.70 As stated by Pejić, In the Government’s view, the UK’s obligations under Article 5 of the European Convention were displaced by the legal regime established by Resolution 1546 owing to the operation of Articles 25 and 103 of the UN Charter. Pursuant to the latter, states’ obligations under the Charter prevail over their obligations under any other international agreement in the event of a conflict. The Government argued, based on practice and prevailing international law doctrine, that the language of Article 103 cannot be limited to Security Council resolutions obliging states to act in a particular way, but also extends to decisions authorizing them to do so (as Resolution 1546 and the appended letters had done).71 The ECtHR dismissed the British argument and stated that: The Court has considered whether, in the absence of express provision in Resolution 1546, there was any other legal basis for the applicant’s detention which could operate to disapply the requirements of Article 5 § 1 of the Convention. The Government have argued that the effect of the authorisations in paragraphs 9 and 10 of Resolution 1546 was that the Multinational Force continued to exercise the “specific authorities, responsibilities and obligations” that had vested in the United States of America and the United Kingdom as Occupying Powers under 67 Al-Jedda, supra note 63, para. 11. 68 Hassan, supra note 55, para. 65. 69 UN Security Council Resolution 1546, 8 June 2004. 70 Al-Jedda, supra note 63, para. 88. 71 Pejić, supra note 65, at 840–841.

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i­nternational ­humanitarian law and that these “obligations” included the obligation to use internment where necessary to protect the inhabitants of the occupied territory against acts of violence. Some support for this submission can be derived from the findings of the domestic courts (see, for example, Lord Bingham at paragraph 32 of the House of Lords judgment; see paragraph 20 above). The Court notes in this respect that paragraph 2 of Resolution 1546 clearly stated that the occupation was to end by 30 June 2004. However, even assuming that the effect of Resolution 1546 was to maintain, after the transfer of authority from the cpa to the interim government of Iraq, the position under international humanitarian law which had previously applied, the Court does not find it established that international humanitarian law places an obligation on an Occupying Power to use indefinite internment without trial. Article 43 of the Hague Regulations requires an Occupying Power to take “all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” (see paragraph 42 above). While the International Court of Justice in its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (drc) v. Uganda) interpreted this obligation to include the duty to protect the inhabitants of the occupied territory from violence, including violence by third parties, it did not rule that this placed an obligation on the Occupying Power to use internment; indeed, it also found that Uganda, as an Occupying Power, was under a duty to secure respect for the applicable rules of international human rights law, including the provisions of the International Covenant for the Protection of Civil and Political Rights, to which it was a signatory (see paragraph 50 above). In the Court’s view, it would appear from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort.72 The Court thus concluded that there is no contradiction between the obligations of the United Kingdom stemming from unsc resolutions and those stemming from the echr. Since the United Kingdom did not derogate, Article 5 echr was violated. The solution envisaged by the ECtHR in this case was criticized in the doctrine. Authors considered, contrary to the Court’s reasoning, that there was a normative conflict and that, therefore, ihl should apply. The possibility to detain a civilian outside the scope of Article 5 of the echr 72 Al-Jedda, supra note 63, para. 107.

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should have thus been accepted.73 The Court, however, preferred a protective approach towards the relationship between ihl and ihrl. States may, however, derogate from Article 5 echr pursuant to Article 15 of the Convention.74 We must note here that the ECtHR applied ihl as if it was facing an international armed conflict situation. Still, Even though Al-Jedda was in fact interned when the armed conflict in Iraq was non-international in character, the legal regime applied to his detention by the UK as a result of UN Security Council Resolution 1546 was that prescribed by the Fourth Geneva Convention, an issue that the Court did not contest in para. 107.75 Although this is not relevant to the reasoning developed by the Court, it will be relevant for our discussion below. The other important judgment is the aforementioned case of Hassan v. UK, which proved to be crucial with regard to detention. In the Al-Jedda case, the Court only had to decide whether the obligations stemming from unsc resolutions could constitute a derogation within the meaning of Article 5 echr and it did not have to address the exceptions discussed previously. Conversely, Hassan was “the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law”.76 The Strasbourg Court began by recognizing that “it does not take the view that detention under the powers provided for in the Third and Fourth Geneva Conventions is congruent with any of the categories set out in subparagraphs (a) to (f) [of article 5 echr]”.77 Subsequently, and following its case law in AlJedda, it could easily have once again condemned the United Kingdom as no derogation was lodged under Article 15. The judges decided otherwise. Based on the following (surprising) reasoning, the Court found that: There has been no subsequent agreement between the High Contracting Parties as to the interpretation of Article 5 in situations of international armed conflict. However, in respect of the criterion set out in Article 31 § 3(b) of the Vienna Convention (see paragraph 34 above), the Court has 73 Gaggioli, supra note 9, at 181. 74 Al-Jedda, supra note 63, para. 100; Hervieu, supra note 65, at 40. 75 Pejić, supra note 65, at 843. 76 Hassan, supra note 55, para. 99. 77 Ibid, para. 97.

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­ reviously stated that a consistent practice on the part of the High Conp tracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, §§ 102–103, Series A no. 161 and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, echr 2010). The practice of the High Contracting Parties is not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. As the Court noted in Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 62, echr 2001-XII, although there have been a number of military missions involving Contracting States acting extra-territorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activities. The derogations that have been lodged in respect of Article 5 have concerned additional powers of detention claimed by States to have been rendered necessary as a result of internal conflicts or terrorist threats to the Contracting State (see, for example, Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258-B; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and A. and Others v. the United Kingdom [GC], no. 3455/05, echr 2009; see also paragraphs 40–41 above).78 By adopting this stance, the ECtHR created “a dangerous and unprecedented benchmark: it accepts that a convergent State practice bases and justifies a restrictive interpretation of conventional guarantees”.79 The Court thus interpreted the echr “in harmony with other rules of international law of which it forms part”.80 The Court simultaneously enforced ihl and the echr deciding that the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions.81

78 Ibid, para. 101. 79 Hervieu, supra note 65, at 46. 80 Hassan, supra note 55, para. 102. 81 Ibid, para. 104.

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As the dissenting judges outlined, the Court is, in that respect, “judicially creating a new, unwritten ground for a deprivation of liberty”.82 The ECtHR’s conclusion looks like a slippery slope. It leaves the door open to new derogations from Article 5 echr, which was strictly interpreted hitherto. The Court, however, restated that detention shall be lawful, i.e. it must be consistent “with the rules of international humanitarian law and, most importantly, […] it should be in keeping with the fundamental purpose of Article 5 § 1, which is to protect the individual from arbitrariness”.83 Whilst Article 5(4) echr provides that “[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”, the Court interpreted these conventional elements in light of ihl.84 It considered it to be sufficient that a “competent body” (not a court) “provide[s] sufficient guarantees of impartiality and fair procedure to protect against arbitrariness”.85 The judges accordingly concluded that Article 5 had not been violated by the United Kingdom. The echr may thus still be enforced in international armed conflicts, but ihl is prioritised over ihrl. In other words, the ­Strasbourg Court shelves protection in favour of a damaging pragmatism in dealing with international armed conflicts. What happens in cases of non-international armed conflicts? Since detention in non-international armed conflicts is a rather peculiar situation, it is not clear whether the ECtHR case law provides solutions. If a law enforcement orientation is adopted, it could be concluded that ihrl provides better protection than ihl. As stated by Oswald, “nobody doubts that in particular types of conflicts, as non-international armed conflicts […], human rights norms can be more relevant in terms of politics of detention rather than in terms of legal regulation”.86 Under ihrl, the lawfulness of detention is guaranteed by ­Article 5 of the echr and restrictions are limited. On the other hand, as stated earlier, during non-international armed conflicts, commentators disagree on whether conventional ihl – i.e. Common Article 3 to the GCs and apii – ­provides a clear legal and foreseeable basis for internment.87

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Partly Dissenting Opinion of Judge Spano, Joined by Judges Nicolaou, Bianku and Kalaydjieva, in Hassan, ibid, at 57, para. 18. 83 Hassan, ibid, para. 105. 84 Ibid, para. 106. 85 Ibid. 86 B. Oswald, ‘Controverses Liées à la Détention dans les Opérations Multinationales et l’Apport des Principes de Copenhague’ 95(3–4) irrc (2013), at 182 (our translation). 87 See: supra Section 1.

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To find rules in relation to detention in non-international armed conflict, one must consider customary ihl, which only stipulates “that any detention must not be arbitrary”.88 The other rights regarding detention (as set forth in the echr) are not directly included. Instead, we must look to the icrc Commentary of Common Article 3, which refers to an article written by Pejić.89 In this paper, Pejić refers to ihrl as a basis for, among others, the right to a remedy before an impartial body.90 Moreover, this is confirmed by the Commentary of Common Article 3: At the time of writing, however, the question of which standards and safeguards are required in non-international armed conflict to prevent arbitrariness is still subject to debate and needs further clarification, in part linked to unresolved issues on the interplay between international humanitarian law and international human rights law. In a non-international armed conflict occurring in the territory of a State between State armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and humanitarian law, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. The question of whether humanitarian law provides inherent authority or power to detain is, however, still subject to debate.91 In the Hassan case, the Strasbourg Court confined its reasoning to international armed conflicts. This leaves the protection provided by Article 5 echr in non-international armed conflicts in fine untouched. The Court expressly underlined that: It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.92 88

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Volume i: Rules (2005), Rule 99, at 344. 2016 icrc Commentary gci, para. 719. See also: Hill-­ Cawthorne, supra note 28, at 98. 89 2016 icrc Commentary gci, para. 723, note 667. 90 Pejić, supra note 65. 91 2016 icrc Commentary gci, paras. 725–727. 92 Hassan, supra note 55, para. 104.

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The ECtHR thus confirmed that this same interpretation would not be applicable to non-international armed conflicts. Consequently, during external military operations in non-international armed conflicts, States would not be allowed to reduce Article 5 protection, except if Article 15 is triggered. The Hassan case – even though it can be criticized in a number of ways93 – prevents an excessively frequent use of Article 15 by States, which could result in the development of State practice that would shield individuals from the protection of Article 5. Instead, it maintains the protection provided by Article 5 in non-international armed conflicts. The bench therefore agrees with Al-Jedda, whose reasoning applies to non-international armed conflicts. 5 Conclusion As argued above, the use of the other branch of norms by organs which implement ihl or ihrl is first of all a question of legitimisation in order to ­ensure better protection. The ECtHR applies the same approach when dealing with detention: in non-international armed conflicts, the discernible trend is for the ECtHR’s judges to favour the highest degree of protection of individuals over any lex specialis. Moreover, since the legal basis for detention in non-­ international armed conflict is not clearly based in ihl, the ECtHR uses specifically and almost exclusively ihrl in order to protect detainees, without, however, completely omitting ihl. In the wake of this ECtHR jurisprudence, the British domestic courts were not misled. In the case Serdar Mohammed and other v. Secretary of State for Defence,94 decided on 30 July 2015, the Court of Appeal of England and Wales follows this interpretation and the Hassan case law. The judges decided that: In our view, the reasoning in Hassan can be extended to a situation of a non-international armed conflict such as that with which we are concerned only if in a non-international armed conflict international ­humanitarian law provides a legal basis for detention.95 Noting the silence of ihl on the issue of detention in non-international armed conflicts, the English judges considered “that if humanitarian law does not 93 Hervieu, supra note 65; Frumer, supra note 4. 94 Appeal Judgment, Serdar Mohammed and others v. Ministry of Defence, ewca Civ 843, United Kingdom, England and Wales High Court, 30 July 2015, paras. 164–253. 95 Ibid, para. 13.

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f­orbid detention in case of non-international armed conflict, this does not equal to authorization”.96 Moreover, they stated that the “‘absence of prohibition equals authority’ approach has, however, been much criticised and is considered to be outdated”.97 In other words, the Court of Appeal rejects the argument of an implicit authorisation of conventional humanitarian law (§214 et s.). In the absence of a concurring state practice, the judges refute the existence of a customary rule that would constitute a legal basis to the plaintiff’s detention (§242 et s.). Henceforth, since there is no legal basis to the detention, the latter is contrary to article 5 of the echr.98 This is reminiscent of the ECtHR case law in which questions and facts regarding non-international armed conflicts arose. In these cases, the Strasbourg Court – maybe so as not to offend the States that do not recognise the existence of an armed conflict on their territory – neither referred to ihl nor tried to qualify the armed conflict. The echr was simply applied without further specification.99 Still, the British judges went further and set Article 15 aside. At least, they considered that “even if Article 5 had to be modified to reflect the fact that this detention was in the course of a non-international armed conflict, the minimum procedural safeguards required by international law in such a conflict would not have been met”.100 The ECtHR did not follow the same reasoning in the Hassan case, because the judges did not – as indicated in the introduction – feel compelled to enforce conventional ihl. Hopefully, the English judgment will provide food for thought for the ECtHR in dealing with detention in noninternational armed conflicts.

96

V. Souty, ‘Quelques Réflexions à Propos de l’Arrêt Serdar Mohammed vs Secretary of State [2015] ewca Civ 843’, available at: http://www.fondamentaux.org/2015/08/15/quelques -reflexions-a-propos-de-larret-serdar-mohammed-vs-secretary-of-state-2015-ewca -civ-843/ (our translation). 97 Serdar Mohammed and others v. Ministry of Defence, supra note 94, para. 197. 98 Souty, supra note 96 (our translation). 99 Cf. Turkish and Russian cases. 100 Serdar Mohammed and others v. Ministry of Defence, supra note 94, para. 298.

International Humanitarian Law in the Jurisprudence of International Criminal Tribunals and Courts Alessandra Spadaro* Abstract The creation of the Ad Hoc Tribunals for the former Yugoslavia and Rwanda marked a new beginning in the close relationship between international criminal law and ihl. This essay argues that, notwithstanding the contribution that some judgments rendered by international criminal tribunals and courts have given to the general understanding and perception of ihl, this process has not been free of obstacles. In fact, it will be shown that the way international criminal tribunals and courts have interpreted relevant ihl rules has not always been in line with this body of law’s objectives and content. The author discusses both early and recent jurisprudential developments, with a view to emphasizing some of the most problematic aspects of the interpretation and application of ihl by international criminal courts.

1

Introduction: The Judicial Interpretation of ihl between Cautious Optimism and Arrested Development

Sir Hersch Lauterpacht famously wrote that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”.1 He then called on international lawyers to “continue to expound and to elucidate the various aspects of the law of war […] the only firm hope being that a world may arise in which no such calls will claim [their] zeal”.2 Since the end of the Second World War, the opportunity to expound and to elucidate the content and scope of ihl was seized by the international * Alessandra Spadaro is a PhD Candidate in International Law, Graduate Institute of International and Development Studies. The author would like to thank Professor Paola Gaeta for her inputs and comments on a previous draft. The views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with. 1 H. Lauterpacht, ‘The Problem of the Revision of the Law of War’, 29 bybil (1952), at 382. 2 Ibid.

© koninklijke brill nv, leiden, ���8 | doi:10.1163/9789004342019_008

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c­ riminal tribunals that were established to try and punish crimes of concern to the international community committed during the war. However, it was not until the 1990s, with the creation of the icty and ictr, that the contribution of some judgments, rendered in the context of international criminal trials, started to fundamentally shape the way ihl is generally understood and studied today, as made evident by the numerous references to the case law of these and other international criminal courts in any textbook on the subject. This, however, has come at a cost. As Anderson noted, the criminal aspects of ihl seem to have swallowed the rest of the rules, even though the majority of the rules of ihl do not concern matters of individual criminal responsibility and their violation is not necessarily criminalized.3 Rather than a punitive content, most ihl provisions have in fact a humanitarian character in the literal sense, which is to prevent and mitigate suffering in times of war by regulating the conduct of belligerents.4 The laws of war were primarily created by States to regulate their violent interactions, and only later were they expanded to cover conflicts to which non-State actors participate, while not legitimizing their armed struggle. The pragmatism of ihl lies in providing belligerents with a legitimate yet restrictive framework for achieving their military aims. At the same time, ihl is not a body of law designed to be interpreted in the courtroom, but rather needs to be flexible enough to be understood and realistically applied by soldiers on the battlefield. This might explain why ihl rules are generally vaguely formulated and leave room for different interpretations. On the contrary, criminal provisions, including those criminalizing violations of ihl, must be punctual and strictly formulated. This divergence between criminal and ihl rules explains why it is important not to conflate the application of a criminal provision with the interpretation of the corresponding humanitarian rule, keeping in mind that the former may not always be in line with the purposes of the latter.5 The fact that ihl is directly binding on individuals was recognized in criminal jurisprudence already in the Einsatzgruppen judgment by the US Military Tribunal in Nuremberg, which noted how “[n]ations can act only through human beings”.6 While it is true that violations of ihl are committed by 3 K. Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, 20(2) ejil (2002), at 346–347. 4 Lauterpacht, supra note 1, at 363–364. 5 See for instance: S. Sivakumaran, ‘Re-Envisaging the International Law of Internal Armed Conflict’, 22(1) ejil (2012), at 239; D. Robinson, ‘The Identity Crisis of International Criminal Law’, 21(4) ljil (2008), at 946. 6 Judgment, The United States of America against Otto Ohlendorf et al (The Einsatzgruppen case), Case No. 9, US Military Tribunal ii, Trials of War Criminals before the Nuremberg

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i­ndividuals, who must bear individual responsibility for their actions, armed conflicts are collective phenomena, and such collective character is reflected in the corresponding legal regime: most rules of ihl are directed at belligerents, States and organized armed groups, rather than at individuals.7 The emphasis on the criminality of certain violations of ihl makes the war paradigm shift from the collective to the individual plane.8 The criminal enforcement of ihl rules necessarily results in their individualization, which is “the process through which international rules formed to regulate the behaviour of States and other collective entities recognized as subjects of international law are applied directly to individuals”.9 This is indispensable to ascertain whether the alleged crimes have been committed, and may even have a “cathartic or healing effect” for the affected communities.10 However, the question arises of whether the rules of ihl so interpreted by tribunals whose primary aim is to punish individuals, rather than the exegesis of humanitarian treaties, can and do reflect the reality of the battlefield.11 The regulation of war requires pragmatism: aspirational rules will remain dead letter if belligerents cannot feasibly implement them. Especially since the establishment of the icty and ictr, the mainstream narrative regarding ihl rules, as interpreted by international criminal tribunals and courts, has been one of progress.12 However, the standard against which such development is assessed must be carefully chosen, particularly in ­ ilitary Tribunals under Control Council Law No. 10, Volume IV/1 (October 1946–April M 1949), at 460. 7 Anderson, supra note 3, at 346. 8 Ibid, at 348. 9 P. Gaeta, ‘The Interplay between the Geneva Conventions and International Criminal Law’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015), at 740. 10 A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9(1) ejil (1998), at 9. 11 R. Bartels, ‘Discrepancies between International Humanitarian Law on the Battlefield and in the Courtroom: The Challenges of Applying International Humanitarian Law during International Criminal Trials’, in M. Matthee, B. Toebes, M. Brus (eds.), Armed Conflict and International Law: In Search of the Human Face (2013), at 4. 12 See for instance: C. Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’, in Max Planck Yearbook of United Nations Law, Vol. ii (1998), at 114 et seq; S.C. Breau, ‘The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law’, 34(4) Commonwealth Law Bulletin (2008); S. Darcy, ‘Bridging the Gaps in the Laws of Armed Conflict? International Criminal Tribunals and the Development of Humanitarian Law’, in N. Quénivet, S. Shah-Davis (eds.), International Law and Armed Conflict – Challenges in the 21st Century (2010), at 319.

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light of the nature and aims of ihl. This chapter aims at unearthing the contradictions, downsides, and fallacies in the case law of international criminal courts and tribunals regarding specific rules of ihl. It will leave aside issues such as the role of judicial decisions as sources of international law and of judicial activism.13 It will be shown that, notwithstanding the great importance of the case law of international criminal courts and tribunals, the judicial interpretation of ihl might be a hit-and-miss affair, sometimes resembling arrested development rather than actual progress. This analysis will be conducted in a necessarily piecemeal fashion, by examining some problematic aspects of the case law on the classification of the conflict and related questions, and then by focusing on some recent decisions regarding the concept of direct/active participation in hostilities and intra-party violence. 2

The Definition of Armed Conflict and Related Issues

2.1 Filling the Gaps of Treaty Law Although the term war is still commonly used, legally speaking it has been supplanted by the expression armed conflict since the adoption of the GCs in 1949.14 The definition of this notion, as well as the classification of the armed conflict as either international or non-international, are crucial, as it is well established that some significant differences still exist in the regulation of the two types of conflicts. Nonetheless, the general term armed conflict is not ­defined in the GCs. Common Article 2 GCs contains no definition of international armed conflict (“iac”) and of occupation, nor does Common Article 3 GCs define non- international armed conflict (“niac”).15 The contribution of 13

14

15

On these issues, See for instance: S. Darcy, Judges, Law and War. The Judicial Development of International Humanitarian Law (2014); A. Marston Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, 59(1) Vand. L. Rev. 1 (2006). Geneva Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 unts 31; Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), 75 unts 85; Geneva Convention (iii) Relative to the Treatment of Prisoners of War (1949), 75 unts 135; Geneva Convention (iv) Relative to the Protection of Civilian Persons in Time of War (1949), 75 unts 287 (all entered into force on 21 October 1950). Treaty law provides a lower threshold for niac in Article 1 apii, which is considered valid for Common Article 3 niac as well: “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” do not amount to armed conflicts and are thus not covered by ihl. According to the 2016 icrc Commentary gci, Common Article 3 (footnote 1), the absence of a definition of non-international

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international criminal courts and tribunals, and in particular of the jurisprudence of the icty, to outlining the contours of these notions and filling the treaty law gap has been fundamental, albeit not unproblematic. In the well-known and ground-breaking Decision on Jurisdiction delivered in the Tadić case, the icty Appeals Chamber found that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.16 Despite its brevity, this formula, which refers to iac in the first part and to niac in the second, was met with widespread favour and has since been consistently echoed in scholarship17 and jurisprudence,18 and endorsed by the icrc.19 2.2 Non-international Armed Conflict and Protracted Armed Violence According to the Tadić dictum, the two fundamental and cumulative elements for a niac to exist are (i) the existence of a protracted armed confrontation ­between (ii) a State and an organized armed group or between organized armed groups. The meaning of the second requirement is quite straightforward. While organization is presumed for governmental armed forces, courts have established that this criterion must be assessed on a case-by-case basis with respect to the armed group, having regard, for example, to the existence of a command structure and disciplinary rules, the control of territory, the ability to have ­access to weapons and to plan a concerted military activity, and the ability to armed conflict in Common Article 3 was initially deemed problematic by Portugal, which entered a reservation with respect to Common Article 3 when signing the GCs, and which it only withdrew upon ratification. 16 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. D. Tadić, icty, Appeals Chamber, 2 October 1995, para. 70 (hereinafter Tadić Decision on Jurisdiction). 17 See for instance: L. Moir, ‘The Concept of Non-International Armed Conflict’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015), at 394. 18 See for instance: Judgment, Prosecutor v. Delalić, Mucić, Delić and Landžo (hereinafter referred to as the Čelebići case), icty, Trial Chamber, 16 November 1998, para. 183; Judgment; Prosecutor v. Limaj, Bala and Musliu, icty, Trial Chamber, 30 November 2005, para. 84; Judgment, Prosecutor v. Orić, icty, Trial Chamber, 30 June 2006, para. 254; Judgment, Prosecutor v. Akayesu, ictr, Trial Chamber, 2 September 1998, para. 619; Judgment and Sentence, Prosecutor v. Rutaganda, ictr, Trial Chamber, 6 December 1999, para. 92; Judgment pursuant to Article 74 of the Statute, Prosecutor v. Lubanga Dyilo, icc, Trial Chamber, 14 March 2012, para. 533; Judgment, Prosecutor v. Sesay, Kallon and Gbao, scsl, Trial Chamber i, 2 March 2009, para. 95. 19 2016 icrc Commentary gci, para. 444.

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conclude agreements.20 This prerequisite, however, needs not to be confused with the degree of organization and requirements for apii to apply,21 nor with the degree of organization needed in order to establish the criminal responsibility of superiors for the acts of their subordinates.22 The scope of the first element of the Tadić definition of niac is more ambiguous. Literally, the adjective protracted indicates duration. However, if duration were in fact one of the criteria for the existence of a niac, the issue of how long armed violence must last before the applicability of ihl is triggered would need to be solved. It may be a matter of days, weeks, or months before one could assess the existence of a niac and thus the applicability of relevant ihl rules.23 In turn, this would cause uncertainty as to which operations are covered by ihl, especially at the beginning of a conflict, and is extremely problematic with respect to the criminality of actions committed in the early stages of the hostilities. Nevertheless, the adjective protracted was rarely understood in its literal meaning indicating the extension in time of armed violence.24 Rather, in most cases, this term has been interpreted as referring to the intensity of the hostilities.25 The hostilities’ duration has instead been considered as one of the indicia that the armed confrontation has reached the intensity threshold for the existence of a niac, together with other elements, e.g. the types of weapon used, the involvement of the unsc, and the number of casualties caused by fighting and of troops deployed.26 These factors, which are merely indicative of the intensity of the hostilities, do not need to exist concurrently.27 Moreover, in various cases, it was established that the oscillation of the intensity of the 20 21 22 23 24 25

26 27

Judgment, Prosecutor v. Haradinaj, Balaj and Brahimaj, icty, Trial Chamber i, 3 April 2008, para. 60; Judgment, Prosecutor v. Boškoski and Tarčulovski, icty, Trial Chamber ii, 10 July 2008, para. 195; Judgment, Prosecutor v. Lubanga, supra note 18, para. 537. Judgment, Prosecutor v. Boškoski, supra note 20, para. 197. Judgment, Prosecutor v. Limaj, supra note 18, para. 89. Notably, the IACtHR found that armed confrontations spanning only 30 hours amounted to a niac. See: Judgment, Juan Carlos Abella v. Argentina, IACtHR, 18 November 1997, paras. 154–156. See for instance: Judgment, Prosecutor v. Kordić and Čerkez, icty, Appeals Chamber, 17 December 2004, para. 341 (“serious fighting for an extended period of time”). Judgment, Prosecutor v. Tadić, icty, Trial Chamber, 7 May 1997, para. 562; Judgment, Prosecutor v. Haradinaj, supra note 20, paras. 39, 49; Judgment, Prosecutor v. Boškoski, supra note 20, para. 177. See also: Judgment, Prosecutor v. Brima, Kamara and Kanu, scsl, Trial Chamber ii, 20 June 2007, para. 244. Judgment, Prosecutor v. Boškoski, supra note 20, paras. 177–178. S. Vité, ‘Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations’, 91(873) irrc (2009), at 77.

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armed confrontation does not entail the end of applicability of ihl, which on the contrary continues to apply until a peaceful settlement is achieved.28 The icc Statute’s definition of niac is similar to the Tadić one, although Article 8(2)(f) uses the formulation “protracted armed conflict” in lieu of protracted armed violence. According to some scholars, while this definition does not modify existing ihl thresholds, as it is rather limited to the scope of j­urisdiction of the icc, it creates a new category of niac characterized by a temporal element of protraction.29 Others, however, argue that the threshold of Article 8(2)(f) of the Rome Statute should be considered the same as in Common Article 3 GCs, based on the Tadić definition and the subsequent interpretation of the niac constitutive elements of organization and intensity.30 The latter conclusion seems more convincing, considering that the icc has consistently relied on icty case law and definitions, in order to assess the existence of a niac, without highlighting differences between the concept of niac contained in the Rome Statute and the one under ihl as interpreted by the icty.31 2.3 International Armed Conflict and the Overall Control Test The abovementioned Tadić definition of iac is in line with the interpretation that scholars and the icrc have given to this concept, which entails that a low threshold of violence is needed for relevant ihl rules to apply to armed clashes between States.32 The Tadić case also allowed the icty judges to ­further elaborate on the concept of iac, thanks to the creation of the overall control test, which was used by the icty Appeals Chamber to classify the conflict between the armed forces of the Republika Srpska, which were controlled by the ­Federal Republic of Yugoslavia (fry), and the central authorities of Bosnia and Herzegovina, as an iac.33 28

Tadić Decision on Jurisdiction, supra note 16, para. 70; Judgment, Prosecutor v. Haradinaj, supra note 20, para. 100; Judgment, Prosecutor v. Gotovina, Čermak and Markač, icty, Trial Chamber i, 15 April 2011, para. 1694. 29 Vité, supra note 27, at 82–83. 30 Moir, supra note 17, at 395–396. 31 See for instance: Judgment, Prosecutor v. Lubanga, supra note 18, para. 506; Judgment pursuant to Article 74 of the Statute, Prosecutor v. Katanga, icc, Trial Chamber ii, 7 March 2014, para. 1187. 32 2016 icrc Commentary gci, paras. 218, 236–244; A. Clapham, ‘The Concept of International Armed Conflict’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015), at 12; D. Carron, L’Acte Déclencheur d’un Conflit Armé International (2016), at 233. 33 Judgment, Prosecutor v. Tadić, icty, Appeals Chamber, 15 July 1999, para. 162 (­hereinafter Tadić Appeals Judgment).

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Departing from the effective control test, which had been used by the icj in the Nicaragua case to attribute the conduct of a group or of private individuals to a State, the icty Appeals Chamber held that, based on the principles of the law on State responsibility, the correct standard was instead the overall control test. This test does not require specific instructions to be issued by a State, in order for it to be considered to control and consequently be responsible for the acts carried out by “an organized and hierarchically structured group in armed conflict”.34 Under this test, the responsibility of the State is engaged “whether or not each of [the activities of the armed group] was specifically imposed, requested or directed by the State”.35 However, the icty Appeals Chamber failed to clearly define the contours of the notion of overall control, as well as to elaborate on the ihl obligations of an armed group under the overall control of a State. Additionally, the adoption of the overall control test generated a division that is unlikely to be healed anytime soon between the jurisprudence of the icty and that of the icj. The latter, in the Genocide case, distinguished between two attribution tests under the law of State responsibility: the complete dependence test (for persons, groups of persons, and entities) and the effective control test (for single actions and operations), albeit without ruling out the usefulness of the overall control test for the classification of an armed conflict.36 However, accepting – as the icj seems to suggest – that different tests might exist for the assessment of State responsibility and the classification of a conflict as international, may cause absurd consequences. For instance, a State may at the same time be considered involved in an iac by virtue of its overall control on an armed group, and still not face any consequences under the law of State responsibility for violations of ihl, if the effective control or complete dependence test are not met, thus effectively benefitting from an accountability gap.

34 35 36

Judgment, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), icj, 27 June 1986, para. 115; Tadić Appeals ­Judgment, supra note 33, para. 120. Tadić Appeals Judgment, supra note 33, para. 122. Judgment, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj, 26 February 2007, at 43, paras. 392, 397, 404–406. Notably, the overall control test has been endorsed by the icrc (2016 icrc Commentary gci, para. 273) and has been adopted by the icc (Judgment, Prosecutor v. Lubanga, supra note 18, para. 541; Decision on the Confirmation of Charges, Prosecutor v. Lubanga Dyilo, icc, Pre-Trial Chamber i, 29 January 2007, para. 211).

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2.3.1 Protected Persons under gciv Classifying the conflict as international in the Tadić case, in turn, opened to the application of the grave breaches regime, which only pertains to iac, given that grave breaches are committed against protected persons, a category which does not exist in niac. Civilians qualifying as protected persons are defined in Article 4 gciv as “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. In the Čelebići trial judgment, the icty decided to interpret Article 4 gciv as to cover the broadest category of persons possible, regardless of their nationality.37 In fact, a literal interpretation of Article 4 gciv would make it inapplicable in cases where accused and victims shared the same nationality. In Tadić, the icty Appeals Chamber, emphasizing the importance of substantial relations over formal bonds in inter-ethnic conflicts, reasoned that the gciv’s object, purpose and preparatory works suggest that allegiance to a party to the conflict, rather than nationality, is the adequate standard for the interpretation of the concept of protected persons.38 In a subsequent case, the icty Trial Chamber then specified that, in an inter-ethnic conflict, ethnicity may be regarded as the decisive factor to assess allegiance to a party and thus establish the status of the victims as protected persons.39 The adoption of allegiance in lieu of nationality, as the determining factor for the identification of protected persons under Article 4 gciv in Tadić, would have not been necessary, if one had considered that the victims, who were Bosnian Muslims, were in fact in the hand of de facto organs or agents of the fry, a State of which they were not nationals, because of the overall control that the fry exercised on the Bosnian Serb armed forces.40 However, this would have implied that, if the same atrocities had been committed by the government army of Bosnia and Herzegovina against Bosnian Serb civilians, the latter would not have been considered as protected persons under gciv, because victims and perpetrators were all Bosnian nationals.41 The criterion of

37 38 39 40

Trial Judgment, Čelebići case, supra note 18, paras. 250, 263. Trial Judgment, Prosecutor v. Tadić, supra note 25, paras. 164–166. Judgment, Prosecutor v. Blaškić, icty, Trial Chamber, 3 March 2000, para. 127. M. Sassòli, L. Olson, ‘The Judgment of the icty Appeals Chamber on the Merits in the Tadic Case. New Horizons for International Humanitarian Law?’ 82(839) irrc (2000), at 742–743. 41 Ibid.

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allegiance solves precisely this asymmetry problem, which had already been foreseen in the Tadić Decision on Jurisdiction.42 Reading the allegiance criterion into Article 4 gciv, however, overstretches the rules on treaty interpretation and generates a number of serious practical problems. First, recourse to a teleological interpretation of the term nationals, and to subsidiary means of interpretation, seems at the very least superfluous given the clarity of Article 4 gciv, which, interpreted in good faith based on its ordinary meaning pursuant to Article 31(1) vclt, evidently speaks of citizenship rather than of allegiance.43 Moreover, the drafters of the GCs chose nationality as the standard to identify protected persons, precisely to comply with the recognized principle of international law of non-interference in the relations of a State with its own nationals.44 Albeit this principle has ever since been largely softened by the advent of human rights, this shows that reliance on the preparatory works of the Convention, to support the adoption of the allegiance criterion, is misplaced. Moreover, scholars have noted that allegiance is a volatile notion: it is more difficult to determine than nationality, it should be assessed on a case-by-case basis, and it can change during the conflict.45 It would also be very unwise (if not plainly dangerous) for those in the hands of a State party to a conflict to proclaim their allegiance to a foreign State, in order to be considered protected persons under the gciv.46 Lastly, it is doubtful whether in the circumstances of that case, the accused could have been aware of the protected persons status of his victims, based on such an expansive and unprecedented reading of Article 4 gciv. At the very least, this is an example of ex post facto interpretation and of individualization of a rule that does not necessarily accord with the character of ihl, which is at once protective and pragmatic, nor with the drafters’ intentions.

42 43

Tadić Decision on Jurisdiction, supra note 16, para. 76. M. Sassòli, J. Grignon, ‘Les Limites du Droit International Pénal et de la Justice Pénale International dans la Mise en Œuvre du Droit International Humanitaire’, in A. Biad, P.  ­Tavernier (eds.), Le Droit International Humanitaire Face aux Défis du XXIe siècle (2012), at 150. 44 1958 icrc Commentary gciv, at 46–47. 45 Sassòli, Grignon, supra note 43, at 150. See also: R.R. Baxter, ‘Ius in Bello Interno: The Present and Future Law’, in J. Norton Moore (ed.), Law and Civil War in the Modern World (1974), at 531 (“how can this status by analogy be determined, when allegiance of civilians is sought by both belligerents and cannot be readily ascertained in individual cases? ­Nationality is a fixed status; loyalty or allegiance is quite another thing”). 46 M. Sassòli, ‘Humanitarian Law and International Criminal Law’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), at 119.

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In spite of these criticisms, this interpretation of Article 4 gciv is not completely void of merit, in so far as it aims at expanding the scope of protection of ihl. However, the application of the allegiance criterion, in lieu of the nationality one, should be limited to cases regarding conflicts, akin to the one in the context of which this standard was formulated, i.e. (inter-ethnic) wars by proxy, which are prima facie niac classified as iac, due to the overall control of a foreign State on the armed group participating to the conflict. Unlike what was more recently decided by the eccc, which considered some Cambodians (who were detained and executed by the Communist Party of Kampuchea, ­because of their real or perceived allegiance to Vietnam) as protected persons under gciv,47 for traditional iac, involving two or more States directly engaged in hostilities against each other, the nationality requirement would still need to be met. 2.3.2 Territorial Control by Armed Groups and Occupation by Proxy Another significant change in the way in which ihl has been understood, following the Tadić Decision on Jurisdiction, is the convergence between the regulation of iac and that of niac.48 That decision encouraged a trend of analogy between the rules of iac and niac, and initiated the blurring of the distinction between the two types of conflict. This has also been confirmed by the icrc Study on Customary ihl, which identified between 136 and 141 customary rules (out of a total of 161), as applicable in both types of conflicts.49 One of the areas in which the iac/niac dichotomy persists is the law of ­occupation, which is only applicable in the context of an iac.50 The inapplicability of the law of occupation in niac was correctly acknowledged by the scsl, which distinguished between, on the one hand, the legal regime applicable in iac to belligerent occupation and, on the other hand, the rules of apii applicable in niac, when an armed group controls parts of a State’s territory.51 Surprisingly, in the recent Al Faqi Al Mahdi case, the icc Pre-Trial Chamber 47 48 49

50 51

Judgment, Prosecutor v. Kaing Guek Eav alias Duch, eccc, Trial Chamber, 26 July 2010, para. 426. Tadić Decision on Jurisdiction, supra note 16, paras. 98, 126. M. Sassòli, L.M. Olson, ‘The Relationship between International Humanitarian and Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’, 90(871) irrc (2008), at 602, citing J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005). R. Kolb, S. Vité, Le Droit de l’Occupation Militaire. Perspectives Historiques et Enjeux ­Juridiques Actuel (2009), at 73. See also: Baxter, supra note 45, at 531 (“it is the essence of belligerent occupation that it should be exercised over foreign, enemy territory”). Judgment, Prosecutor v. Sesay, supra note 18, paras. 982–983.

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repeatedly referred to the city of Timbuktu, which was under the control of two armed groups in the context of a niac, as being occupied.52 In the absence of a clear reference to the applicability of the law of occupation, a good faith reading of the Pre-Trial Chamber’s reasoning suggests that the term occupation might have simply been used by the court carelessly and in spite of its clear legal connotations. However, such an inaccuracy in an icc decision is no less troubling or regrettable than implying that military occupation is possible in niac. The fact that occupation can only occur in iac does not rule out the possibility for an armed group to be directly involved in the occupation of a State’s territory. If an armed group is controlled by a State, nothing logically prevents it from being used as a proxy to occupy another State’s territory. However, one should not overlook the fundamental distinction between a State’s overall control of an armed group and the effective control exerted over foreign territory through that same armed group.53 The term effective control, which is not found in treaty law, is considered as the central element of the concept of military occupation and implies that the occupying power must be able to exert authority over the occupied territory.54 As explained by the US Military Tribunal in Nuremberg in the Hostages case, an occupation indicates the exercise of governmental authority to the exclusion of an established government. This presupposes the destruction of the organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied.55 The centrality of this additional element of control was acknowledged by the icty in the Naletilić case, in which the Trial Chamber found that “there is an 52 53 54 55

See: Decision on the Confirmation of Charges, Prosecutor v. Al Faqi Al Mahdi, icc, ­Pre-Trial Chamber i, 24 March 2016, paras. 4, 30, 44–45, 55. Such distinction seems to be implied in: Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Prosecutor v. Rajić, icty, Trial Chamber, 13 September 1996, para. 40. Y. Dinstein, The International Law of Belligerent Occupation (2009), at 43–44; T. Ferraro, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’, 94(885) irrc (2012), at 139–142. Judgment, Hostages Trial – Trial of Wilhelm List and Others, United States Military Tribunal, 8 July 1947–19 February 1948, Law Reports of Trials of War Criminals, Vol. viii (1948), at 55 (hereinafter Hostages case).

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essential distinction between the determination of a State of occupation and that of the existence of an international armed conflict. The application of the overall control test is applicable to the latter. A further degree of control is ­required to establish occupation”.56 The jurisprudence of the icty thus suggests that it is possible for a State to occupy another State’s territory by proxy, provided that overall control of the armed group is coupled with effective authority over the foreign territory.57 However, the contours of occupation by proxy remain blurry, especially with respect to whether the armed group used as proxy is effectively able to comply with the obligations that the law of occupation, traditionally designed to apply to States only, imposes on the occupying power.58 3

Direct/Active Participation in Hostilities and Intra-Party Violence

3.1 Direct and Active Participation in Hostilities: Two of a Kind? The concept of direct participation in hostilities (dph) relates to the fundamental distinction between civilians and combatants under ihl. ihl, in both its Hague Law and Geneva Law declinations, only protects civilians (in so far as they do not take part in hostilities) and combatants who are placed hors de combat and thus no longer take part in hostilities. Thus, it is crucial that the concept of dph is correctly understood and ­applied, and, for the purposes of this essay, it is interesting to see how international criminal courts and tribunals have interpreted (or misinterpreted) this concept, including in some recent decisions.

56 57

58

Judgment, Prosecutor v. Naletilić and Martinović, icty, Trial Chamber, 31 March 2003, para. 214. Occupation by proxy seems to be considered feasible also by the icj, which analysed the issue of whether Uganda was an occupying areas outside Ituri, by virtue of its control over the Congolese rebel groups in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, icj, 19 December 2005, at 168, para. 177. The concept of indirect effective control was also met with approval by the experts who participated in the meetings regarding occupation and other forms of administration of foreign territory organized by the icrc. See: T. Ferraro (ed.), Expert Meeting. Occupation and Other Forms of Administration of Foreign Territory (2012), at 10, 23. See: T. Gal, ‘Unexplored Outcomes of Tadić. Applicability of the Law of Occupation to War by Proxy’, 12 jicj (2014), at 72–75, proposing a graded (or functional) application of the law of occupation to armed groups, depending on their effective ability to comply with the law, as opposed to an all-or-nothing application.

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Various ihl treaty provisions speak of direct or active participation in hostilities without providing a definition thereof.59 The ictr Trial Chamber in Akayesu stated that the two terms are synonyms,60 and the same is maintained by the icrc.61 The icrc has authoritatively defined the notion of dph as ­referring to “specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict” and meeting three cumulative criteria: (i) a threshold of harm likely resulting from the act, (ii) a relationship of direct causation between the act and the expected harm, and (iii) a belligerent nexus between the act and the hostilities.62 According to the icrc, members of an organized armed group belonging to a party to a conflict cease being civilians, and thus lose protection from attack, only for as long as they assume a continuous combat function (ccf).63 Such functional approach, as opposed to a membership-based approach, by virtue of which all members of an armed group would lose protection for the entire duration of their membership in the group, regardless of whether they have a fighting function, is consistent with the principle of distinction under ihl and prevents those who “on a merely spontaneous, sporadic, or unorganized basis, or who assume exclusively political, administrative or other non-combat functions” from being targetable at all times.64 In Strugar, the icty Appeals Chamber correctly found that dph is not limited to combat, but does not encompass all combat-related activities either. The judges distinguished between acts amounting to dph and acts only resulting in indirect participation in hostilities.65 They went on to state that, in order to establish a violation of Common Article 3 GCs, the victims of the alleged offence must not be directly participating in the hostilities, and that dph can be “intermittent and discontinuous”.66 This is an important statement of the law, in line with the icrc’s understanding of dph, and it is unfortunate that other international criminal courts have occasionally departed from this finding. 59

Common Article 3 GCs; Article 43(2) api; Article 51(3) api; Article 67(1)(e) api; Article 77(2) api; Article 4(3)(d) apii; Article 13(3) apii. 60 Judgment, Prosecutor v. Akayesu, supra note 18, para. 629. 61 See: icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in Hostilities (2009), at 43, pointing to the fact that in the equally authentic French text of the GCs and their APs, the phrase “participent directement” is used consistently in lieu of the two different words employed in the English version. 62 Ibid, at 43, 46–64. 63 Ibid, at 70. 64 Ibid, at 34. 65 Judgment, Prosecutor v. Strugar, icty, Appeals Chamber, 17 July 2008, para. 177. 66 Ibid, para. 178.

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

69 70 71

Judgment, Prosecutor v. Brima, supra note 25, para. 737. See for instance: M. Sassòli, ‘Human Shields and International Humanitarian Law’, in A. Fischer-Lescano, H.-P. Gasser, T. Marauhn, N. Ronzitti (eds.), Frieden in Freiheit. Peace in Liberty. Paix en Liberté. Festschrift für Michael Bothe zum 70. Geburtstag (2008), at 571–576, on why being used as human shields does not amount to dph. Judgment, Prosecutor v. Sesay, supra note 18, para. 1723. Judgment, Prosecutor v. Lubanga, supra note 18, para. 628. Ibid, Separate and Dissenting Opinion of Judge Odio Benito, paras. 17–21.

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wide notion in order to punish the use of children in hostilities.72 To obviate this problem, some commentators suggest keeping the ihl and International Criminal Law standards separated, so as to offer child soldiers the widest protection possible.73 3.2 Status Requirement and Intra-Party Protection under ihl The question of the protective reach of ihl recently came under the scrutiny of the icc which had to deal with a jurisdictional challenge in the Ntaganda case. The accused, who among other things is charged with the war crime of rape and sexual slavery of child soldiers under Article 8(2)(e)(vi) icc Statute, challenged the subject-matter jurisdiction of the court, arguing that under ihl war crimes cannot be committed against persons taking active part in the hostilities by other active combatants on the same side of the conflict.74 The decisions on this issue by the Pre-Trial Chamber75 and the Trial Chamber76 were in turn impugned by the defence, and the Appeals Chamber had a final say on this issue in June 2017. It is worth analysing the decision of icc Appeals Chamber is some detail. The issues before the Appeals Chamber were whether the war crimes of rape and sexual slavery under Article 8(2)(b)(xxii) and (e)(vi) icc Statute are subject to a status requirement, i.e. whether they have to be committed against protected persons in the sense of the GCs or against persons taking no active part in hostilities in the sense of Common Article 3 GCs and, thus, whether the n ­ otion of active participation in hostilities is compatible with the

72

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75 76

See: N. Urban, ‘Direct and Active Participation in Hostilities: The Unintended Consequences of the icc’s Decision in Lubanga’, ejil: Talk!, 11 April 2012, available at: https://www.ejiltalk.org/direct-and-active-participation-in-hostilities-the-unintended -consequences-of-the-iccs-decision-in-lubanga/; R. Graf, ‘The International Criminal Court and Child Soldiers: An Appraisal of the Lubanga Judgment’, 10 jicj (2012), at 961. S. Sivakumaran, ‘War Crimes before the Special Court for Sierra Leone: Child Soldiers, Hostages, Peacekeepers and Collective Punishments’, 8 jicj (2010), 1009, at 1019; T. Rodenhauser, ‘Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their “Own Forces”’, 14 jicj (2016), at 181; Graf, supra note 72, at 965. Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, Prosecutor v. Ntaganda, icc, Appeals Chamber, 15 June 2017, para. 4 (hereinafter Ntaganda Appeals Chamber Decision). Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, Prosecutor v. Ntaganda, icc, Pre-Trial Chamber ii, 9 June 2014. Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9, Prosecutor v. Ntaganda, icc, Trial Chamber vi, 4 January 2017.

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­ embership of the child soldiers victims of these crimes in the armed group m of the accused.77 Based on the ordinary meaning, context and drafting history of the relevant provisions, the Appeals Chamber reasoned that no status requirement is ­included in the chapeaux of Article 8(2)(b) and (e) icc Statute and, thus, concluded that victims of the war crimes of rape and sexual slavery under Article 8(2)(b)(xxii) and (e)(vi) need not to be protected persons under the GCs or Common Article 3 GCs.78 Noting that the icc Statute must however be read in manner that is consistent with “the established framework of international law”, the Appeals Chamber turned to the analysis of whether a status requirement exists for the crimes of rape and sexual enslavement under ihl.79 The Appeals Chamber reasoned that under gci and gcii grave breaches can be committed against wounded, sick or shipwrecked members of the armed forces by both enemy forces and their own forces, and that Common Article 3 GCs “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation, requiring only that the persons were taking no active part in hostilities at the material time”.80 However, the wounded, sick, and shipwrecked are hors de combat and are protected under gci and gcii precisely on that ground, including from violence committed by their fellow soldiers. Likewise, Common Article 3 GCs only protects persons taking no active part in hostilities. While this does not exclude that intra-party protection is provided under ihl, this protection, far from being unqualified, is actually subject to a status requirement, which is dependent on whether the victims were actively/directly participating in ­hostilities, an issue which the icc Appeals Chamber failed to analyse.81 The children conscripted in Ntaganda’s armed group and victims of rape and sexual slavery might be considered protected under ihl either as civilians, who occasionally participated in hostilities (and were thus otherwise protected in all other circumstances, including while being subjected to sexual violence), or combatants that, at the relevant times, were hors de combat. One could even argue that the coercive character and harmful consequences of sexual violence themselves put the victims hors de combat.82 77 Ntaganda Appeals Chamber Decision, supra note 74, para. 16. 78 Ibid, paras. 46–51. 79 Ibid, paras. 52–56. 80 Ibid, paras. 59–60. 81 Ibid, para. 69. 82 Rodenhauser, supra note 73, at 191–192.

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While normally persons who are entitled to protection under ihl are also in the power of the adverse party, nothing in Common Article 3 GCs or Article 4 apii prevents a person, who is not or no longer participating in hostilities and is in the power of a party to the conflict, including its own, from being protected.83 The importance of the power aspect might also provide a solution to the arguable gap in protection with respect to child soldiers who have a ccf and are at the same time victims of sexual enslavement (a continuous crime). In fact, they might be targetable by the enemy because of their fighting function, but at the same time be considered hors de combat vis-à-vis the party to the conflict that exercises coercive control over them. A separate, but related, question is whether intra-party violence can amount to a war crime based on the existence of a nexus. In fact, what distinguishes a war crime from an ordinary crime is the existence of a close link between the criminal act and the armed conflict.84 In Kunarac, the icty Appeals Chamber explained that “[t]he armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed”.85 The icty Appeals Chamber also suggested some factors to take into account, among others, in determining the existence of the nexus: “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties”.86 It is thus reasonable to suggest, as some commentators do, that rape of a soldier by a fellow soldier might not always amount to a war crime, due to the lack of a nexus with the armed conflict.87 While in the case of sexual violence 83

84 85 86 87

J.K. Kleffner, ‘Friend or Foe? On the Protective Reach of the Law of Armed Conflict. A Note on the scsl Trial Chamber’s Judgment in the Case of Prosecutor v. Sesay, Kallon and Gbao’, in M. Matthee, B. Toebes, M. Brus (eds.), Armed Conflict and International Law: In Search of the Human Face. Liber Amicorum in Memory of Avril McDonald (2013), at 297–300. Judgment, Čelebići case, supra note 18, para. 193; Ntaganda Appeals Chamber Decision, supra note 74, para. 68. Judgment, Prosecutor v. Kunarac, Kovač and Vuković, icty, Appeals Chamber, 12 June 2002, para 58. Ibid, para. 59. See for instance: A. Cassese et al., Cassese’s International Criminal Law (2013), at 78; G. Gaggioli, ‘Sexual Violence in Armed Conflicts: a Violation of International H ­ umanitarian Law and Human Rights Law’, 96(894) irrc (2014), at 515; Ntaganda Appeals Chamber Decision, supra note 74, para. 68, fn 151.

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perpetrated against child soldiers by members of their own forces the nexus requirement may not be immediately evident, based on the Kunarac factors, its existence must be proved separately from and secondarily to the status of the victims as protected persons under ihl. The fact that in the Ntaganda case the alleged victims of the war crimes of rape and sexual enslavement were also members of the accused’s armed group (with or without a ccf) cannot per se exclude the existence of the nexus requirement either, and the assessment of this element should be carefully reasoned. 4 Conclusion The examples provided in this chapter have shown how the interpretation of ihl in international criminal trials has not always resulted in good outcomes as a matter of law. This is not to say, of course, that all decisions by international criminal tribunals and courts have misconstrued ihl. Rather, this essay has hopefully encouraged the readers to reflect critically on the outcomes of these judgments, including some that have been greatly praised in the past. It is of pivotal importance for both the legitimacy of ihl and the credibility of the courts that enforce it that decisions are sound, realistic, and correctly reasoned. Striking a balance between considerations of humanity and military ones is no easy task, neither in the courtroom nor on the battlefield. At the same time, it is also important for scholars and practitioners not to endorse at any cost the decisions of courts, even when they are flawed. On the contrary, a critical outlook is needed in order to strengthen ihl and to promote its ­correct application. This way, ihl will firmly stay at the vanishing point of international law, rather than vanish altogether.

Section B Entries

∵

Abandoned Explosive Ordnances; see: Explosive Remnants of War Acts Harmful to the Enemy. The specific function of those caring for the wounded, sick, and/or shipwrecked, as well as of the objects dedicated to such care, translates into particular protection under ihl [see: Wounded and Sick; Shipwrecked]. However, if such persons or objects (are used to) commit acts harmful to the enemy outside their humanitarian duties (“act(s) harmful to the enemy”), the rationale for their protection dissipates [art. 21 gci; art. 34(1) gcii; art. 19(1) gciv; arts. 13(1), 65(1) api; art. 11(2) apii]. The possibility of loss of protection forms part of the customary rules of ihl concerning the protection of medical personnel or objects [rules 25, 28, 29 icrc Customary ihl Study]. It is not clear whether an act harmful to the enemy constitutes a distinct basis for the loss of protection of the persons and objects concerned, or whether it is a specific application of the military objective test [see: Military Objectives]. The entrenchment of acts harmful to the enemy in the GCs and APs supports a disjunction between these notions. In this regard, the icrc has stated that “[t]he question of whether such an establishment or unit may be the object of an attack […] depends on it fulfilling the criteria for qualifying as a ‘military objective’” [2016 icrc Commentary gci, para. 1847]. This seems to entail that, after establishing an act harmful to the enemy, it must be separately established that the requirements regarding a military objective have been met. However, the icrc has also considered that “it is hard to conceive of circumstances in which the commission of an ‘act harmful to the enemy’ would not transform the facility in question into a military objective” [2016 icrc Commentary gci, para. 1847]. This may, conversely, mean that the notions overlap. On the basis of the wording of the GCs and APs, the possibility of forfeiting protection on the basis of an act harmful to the enemy applies to: (i) (civilian) fixed establishments and mobile medical units [art. 21 gci; art. 13(1) api; art. 11(2); apii; see: Medical Units and Establishments]; (ii) hospital ships and sick-bays [art. 34(1) gcii; see: Hospital Ships; Sick-Bays]; (iii) civilian hospitals [art. 19 gciv; see: Hospitals]; and (iv) civil defence organizations [art. 65(1) api; see: Civil Defence]. Moreover, although not mentioned in the GCs or APs, medical and religious personnel and medical transports may, pursuant to the same rationale, also be deprived of protection under the same conditions [2016 icrc Commentary gci, paras. 1837 (fn. 2), 1995–1996; see: Medical Personnel; Religious Personnel; Medical Transports]. Separate (but comparable) rules have been created for the protection of medical aircraft and air ­transports

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[arts. 36–37 gci; arts. 39–40 gcii; art. 22 gciv; see: Medical Aircrafts; Medical Transports]. However, it is not entirely clear whether coastal rescue craft are subject to this regime [2017 icrc Commentary gcii, para. 2372; see: Coastal Rescue Craft]. Other than the use of encrypted means of communication by hospital ships [art. 34(2) gcii], the GCs and APs do not define acts harmful to the enemy. However, it is not contested that certain forms of military use or activity may amount to an act harmful to the enemy. Examples include direct participation in hostilities, sheltering able-bodied combatants, and stockpiling weapons [2016 icrc Commentary gci, paras. 1841–1842]. Due to the absence of a definition, the determination concerning an act harmful to the enemy must be made on a case by case basis and may, therefore, involve diverging (and possibly inconsistent) assessments. Whilst acts harmful to the enemy are not defined, the GCs and APs specify scenarios that do not reach the threshold. The most common scenarios regarding (civilian) medical units and establishments, hospital ships, and sick-bays concern: (i) the presence of armed personnel and the use of weapons to maintain order and/or in self-defence or in defence of persons in their care [art. 22(1) gci; art. 35(1) gcii; art. 13(2)(a) api; see also: art. 65(3) api]; and (ii) small arms and ammunition found on wounded, sick, and/or shipwrecked persons and not yet handed over to the proper service [art. 22(3) gci; art. 35(3) gcii; art. 13(2)(c) api; similarly regarding civilian hospitals: art. 19(2) gciv]. Furthermore, the extension of care to wounded, sick, and/or shipwrecked civilians by medical services of a military nature and the nursing of sick and wounded armed forces and/or other combatants in medical institutions of a civilian nature may also not be construed as an act harmful to the enemy [art. 22(5) gci; art. 35(4) gcii; art. 13(2)(d) api; art. 19(2) gciv; similarly regarding civil defence organizations: art. 65(2)(c) api]. More specific scenarios are set forth in the GCs and api, depending on the person or object in question [art. 22(2), (4) gci; art. 35(2), (5) gcii; arts. 13(2)(b), 65(2)(a), (b), (4) api]. According to the icrc, these lists are non-exhaustive [2016 icrc Commentary gci, para. 1860]. Such scenarios have not been defined in relation to non-international armed conflict surpassing the threshold of apii [art. 11(2) apii]. Although the list of scenarios contained in Article 13(2) api may “help the interpretation” of Article 11(2) apii [1987 icrc Commentary apii, para. 4723], it remains uncertain to what extent these scenarios specifically apply in this context. Where it is determined that an act is harmful to the enemy, protection is not inevitably lost. It must, in addition, be established that such an act has been committed outside the humanitarian duties of the person or object concerned. This means that an act that may be qualified as harmful to the enemy

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does not entail a loss of protection if it falls within the humanitarian duties of the person or object concerned. In this regard, the icrc refers to the following examples: “a mobile medical unit accidentally breaks down while it is being moved in accordance with its humanitarian function, and thereby obstructs a crossroads of military importance” and “radiation emitted by X-ray apparatus […] interfere[s] with the transmission or reception of wireless messages at a military location, or with the working of a radar unit” [1987 icrc Commentary api, para. 552]. Furthermore, loss of protection only ensues after due warning has been given and a reasonable time limit to refrain from the activity in question has gone unheeded [art. 21 gci; art. 34(1) gcii; art. 19(1) gciv; arts. 13(1), 65(1) api; art. 11(2) apii]. The form a warning may take and the length of the time limit depends on the circumstances. However, a reasonable time-limit only needs to be provided in appropriate circumstances, since the realities of the battlefield may not allow for such a possibility, such as rapidly approaching enemy forces. There is disagreement as to whether the requirement of a due warning is subject to the same proviso. Whereas the icrc considers that this is not the case (since the reference to “in all appropriate cases” or “whenever appropriate” only appears after the obligation to provide a (due) warning), a number of States maintain that such a warning is not possible in exigent circumstances [2016 icrc Commentary gci, para. 1848]. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

T. Haeck, ‘Loss of Protection’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions: A Commentary (2015). P. de Waard, J. Tarrant, ‘Protection of Military Medical Personnel in Armed Conflicts’, 35(1) University of Western Australia Law Review (2010).

Additional Protocol i. api is the first of three Additional Protocols to the 1949 GCs [see: Geneva Conventions]. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts took place from 1974 to 1977 and aimed at studying the draft of two Additional Protocols prepared by the icrc and intended to supplement the GCs. As a consequence, api and apii [see: Additional Protocol ii] were adopted on 8 June 1977. The intention behind api was to broaden and strengthen ihl applicable to international armed conflicts. As its Preamble states, States parties believed

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it necessary “to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”. api entered into force on 7 December 1978 and 174 States are party to it. Part i contains the “General Provisions” of api. It extends ihl’s scope of application, besides international armed conflicts (as defined in the GCs), to national liberation wars [art. 1(4) api; see: International Armed Conflict]. Part i also refers to the beginning and end of api’s application [art. 3 api] and indicates that the application of the GCs and of api shall not affect the legal status of the parties to the conflict [art. 4 api]. Part ii encompasses the protection for “Wounded, Sick and Shipwrecked”. It reinforces and extends the protection given by gci and gcii by covering wounded, sick, and shipwrecked irrespective of their status [art. 8(a), (b) api; see: Wounded and Sick; Shipwrecked]. Additionally, api prohibits carrying out medical or scientific experiments on the wounded, sick, and shipwrecked who are in the power of the adverse party or who are interned, detained, or deprived of their liberty [art. 11(2)(b) api; see: Medical or Scientific Experiments]. It also prohibits subjecting them to medical procedures in certain circumstances [art. 11(1) api]. Part ii further refers to the protection of civilian medical units and civilian medical personnel in occupied territories [art. 14 api; see: Occupation]. Part iii refers to the “Methods and Means of Warfare” and “Combatant and Prisoner-of-War Status”. Unlike the GCs, api encompasses the prohibitions of perfidy [art. 37 api; see: Perfidy] and of ordering or threatening with no quarter [art. 40 api; see: Quarter]. Likewise, it provides regulations in relation to spies [art. 46 api; see: Spies], and mercenaries [art. 47 api; see: Mercenaries], and defines armed forces and combatants [arts. 43, 44 api; see: Combatants]. A cursory definition of the former was given earlier in Article 3 of the Hague Regulations stating that “the armed forces of the belligerent parties may consist of combatants and non-combatants”. api provides a more detailed definition by stating that the armed forces of a party to a conflict are “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates” [art. 43(1) api]. Specifically in relation to combatants, it further explains that, as members of the armed forces of a party to a conflict, they have the right to participate directly in hostilities. In addition, it indicates that medical and religious personnel are not to be considered combatants although they are members of the armed forces. Part iv deals with the “Civilian Population” by enhancing its protection against the effects of the conduct of hostilities, and reaffirming and strengthening the already existing regulations which address the use of force in ihl.

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Thus, it has introduced, for instance, principles concerning: distinction [arts. 48, 52(2) api; see: Distinction]; proportionality [arts. 51(5)(b), 57(2)(a)(iii) api; see: Proportionality]; and precautionary measures [arts. 57, 58; see: ­Precautions, Active; Precautions, Passive]. Furthermore, unlike the GCs, api provides a definition of civilians and civilian population [art. 50 api; see: Civilians; Civilian Population], military objectives and civilian objects [art. 52 api; see: Civilian Objects; Military Objectives]. Part v deals with the “Execution of the Conventions and of th[e] Protocol”. It contains provisions establishing what are considered to be “grave breaches” [arts. 85(2) to (4) api; see: Grave Breaches] and their repression [art. 85(1) api]. api extends the grave breaches regime of the GCs by adding types of conduct not listed in the GCs. Many of the provisions laid down in api were already considered customary ihl before its adoption, such as those reflecting what is stated in the Hague Regulations [Decision on the Joint Defence Motion to Dismiss the Amended Indictment, Kordić and Čerkez, icty, Trial Chamber, para. 31]. Other provisions have been recognized as such afterwards, as shown by the icrc [e.g. rules 7–14 icrc Customary ihl Study]. The customary nature of some other provisions of api remains under discussion, such as the second sentence of Article 44(3) api, referring to the situation where members of the armed forces of a party to a conflict would be considered combatants even if they do not distinguish themselves from the civilian population [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 2 (2005), pp. 2550–2560]. This provision was one of the main reasons why Israel and the United States did not ratify api, since they considered it as broadening the status of prisoners of war to those who, although not distinguishing themselves, retained their status as combatants when carrying their arms openly. Another reason for non-ratification was that Article 1(4) api extends the definition of international armed conflicts to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination” [see: International Armed Conflict]. States such as Canada, France, and the United Kingdom have ratified api with reservations, some of which relate to Articles 1(4), 43 and 44(3) api. Besides Israel and the United States, other States, such as India, Iran, Pakistan, and Turkey, have not ratified it. Marcela Giraldo – the views expressed are those of the author alone and do not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or the Inter-American Court of Human Rights (the author was a lawyer at the InterAmerican Court of Human Rights at the time of writing the entries)

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Bibliography

F. Pocar, ‘To What Extent is Protocol i Customary International Law?’, 78 International Law Studies (2002). .

Additional Protocol ii. apii is the second of three Additional Protocols to the 1949 GCs [see: Geneva Conventions]. It was adopted at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts on 8 June 1977, together with api [see: ­Additional Protocol i]. Currently, 168 States are party to apii, which entered into force on 7 December 1978. Before the adoption of apii, Common Article 3 GCs was the only ihl provision applicable to non-international armed conflicts [see: Common Article 3], even though the majority of armed conflicts since World War ii have been of a non-international character. Thus, apii aims at extending and reinforcing ihl applicable to such conflicts. As its Preamble states, apii is premised on “the need to ensure a better protection for the victims of [non-international armed conflicts]”. Part i defines the scope of the Protocol. It sets the following requirements: an armed conflict has to take place within the territory of a State party to apii; the armed forces of that State have to be involved; and the dissident armed group opposing them has to be under responsible command and must exercise such control over a part of the territory, so as to enable it to carry out sustained and concerted military operations and to implement apii [art. 1(1) apii; see: Non-International Armed Conflict]. It also excludes situations of internal disturbances and tensions from its scope of application [art. 1(2) apii; see: ­Internal Disturbances and Tensions]. Thus, the definition is narrower than the notion of non-international armed conflict in Common Article 3 GCs, since it introduces a requirement of territorial control and does not apply to non-international armed conflicts conducted between armed groups. Consequently, apii has a higher threshold for its application than Common Article 3 GCs, which has led to a reduced application in practice. Part ii deals with “Human Treatment”. It provides fundamental guarantees to which all individuals who do not take a direct part or who have ceased to take part in hostilities are entitled, whether or not their liberty has been restricted [art. 4 apii]. It refers to additional guarantees for people deprived of their liberty for reasons related to a non-international armed conflict [art. 5 apii; see: Deprivation of Liberty] and encompasses judicial guarantees for criminal prosecution of offences related to a non-international armed conflict [art. 6 apii; see: Fair Trial]. It further states that the broadest possible ­amnesty

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should be granted to those who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to it [art. 6(5) apii; see: Amnesty]. Part iii seeks to protect the wounded, sick and, shipwrecked [arts. 7, 8 apii; see: Wounded and Sick; Shipwrecked]. It also protects religious and medical personnel [arts. 9, 10 apii; see: Medical Personnel; Religious Personnel] and medical units and transport [art. 11 apii; see: Medical Units and Establishments; Medical Transports]. Part iv refers to the “Civilian Population”. Article 13 apii affirms the protection of the civilian population against the dangers arising from military operations, and the prohibition of being the object of attack, unless and for such time as civilians directly participate in hostilities [see: Civilians; Civilian Population; Direct Participation in Hostilities]. It also prohibits the forced movement of civilians [art. 17 apii; see: Deportation or Transfer of Civilians]. This part also encompasses the protection of objects indispensable to the survival of the civilian population [art. 14 apii; see: Attacks against Objects Indispensable to the Survival of the Civilian Population], of works and installations containing dangerous forces [art. 15 apii; see: Attacks against Works or Installations Containing Dangerous Forces], and of cultural objects and places of worship [art. 16 apii; see: Attacks against Historic Monuments, Works of Art and Places of Worship; Hague Convention for the Protection of Cultural Property (1954) and its Protocols]. It, finally, deals with relief societies and relief actions [art. 18 apii; see: Humanitarian Relief; Relief Societies]. The relevance of apii has increased over time. The IACtHR has interpreted the achr in light of apii on several occasions. For example, it distinguished the rule laid down under Article 6(5) apii from the IACtHR’s standard on the prohibition to grant amnesties for gross human rights violations [Judgment, Massacres of El Mozote and Nearby Places v. El Salvador, IACtHR, paras. 283–286]. Likewise, it analyzed the rights to life, children’s rights, and property in non-international armed conflicts in light of the applicable rules of apii [Judgment, Massacre of Santo Domingo v. Colombia, IACtHR, paras. 187, 212, 238, 270]. Furthermore, apii has been invoked in the context of international criminal law [see: International Criminal Law]. For instance, violations of apii may be prosecuted under Article 4 ictr Statute. Further, the icty and the icc have used apii to give content to some of the war crimes in their Statutes [e.g. Judgment, Furundžija, icty, Trial Chamber, para. 166 (regarding rape); Judgment, Lubanga, icc, Trial Chamber i, para. 604 (regarding conscripting, enlisting and using child soldiers to participate actively in hostilities)]. Nevertheless, apii is not as detailed as api. For example, it has only one provision on the conduct of hostilities [art. 13 apii] and lacks provisions on

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matters dealt with in api, such as combatant status [see: Combatants] and the prohibition of perfidy [art. 37 api; see: Perfidy]. Further, it does not encompass provisions in relation to the repression of its breaches and its regulation concerning detention is unclear [art. 5 apii; see: Deprivation of Liberty]. The higher threshold of non-international armed conflict required in apii and its reduced number of provisions, when compared to the law of international armed conflicts, are the result of States’ reluctance to regulate non-­ international armed conflicts. Indeed, during the Diplomatic Conference, a number of States expressed their concerns in relation to the fact that “they did not believe that the draft provided sufficient guarantees for respect due to national sovereignty and for non-interference with internal affairs” and that “some of the rules seemed to be too detailed to be realistic, or to be able ­genuinely to be applied in the specific context of internal armed conflicts” [1987 icrc Commentary apii, p. 1335]. Marcela Giraldo – the views expressed are those of the author alone and do not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or the Inter-American Court of Human Rights (the author was a lawyer at the InterAmerican Court of Human Rights at the time of writing the entries) Bibliography

Y. Dinstein, Non-International Armed Conflicts in International Law (2014). S. Sivakumaran, The Law of Non-International Armed Conflict (2012).

Additional Protocol iii. apiii is the third of three Additional Protocols to the 1949 GCs. apiii was adopted on 8 December 2005. It has 72 States parties and entered into force on 14 January 2007. apiii was adopted in order to create an additional distinctive emblem for use alongside the pre-existing emblems [see: Emblem]. apiii’s Preamble stresses that none of the existing distinctive emblems must be understood as having any “religious, ethnic, racial, regional or political significance”. Nevertheless, in certain contexts, the use of the red cross and the red crescent has been a sensitive issue, given that they were associated with a specific religious, political, or cultural affiliation. Hence, apiii creates the red crystal, which is composed of a red frame in the shape of a square on edge on a white ground, as a more neutral alternative [art. 2(2) apiii]. apiii allows for National Societies to use the red crystal, or a combination of it with any other pre-existing emblem, whether recognized by the GCs or another one effectively used by a State party, and subject to a communication to the other parties and the icrc (e.g. the Red Shield of David) [art. 3(1) apiii]. Insofar as a National Society chooses not to use the red crystal, under

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e­ xceptional circumstances and only to facilitate its work, it may make temporary use of that emblem [art. 3(3) apiii]. The tensions regarding the use of emblems had a detrimental impact on the International Red Cross and Red Crescent Movement. It firstly affected the notion of impartiality and neutrality that characterizes the movement, diminishing the protection afforded to those using the original symbols. It further caused several States to avoid selecting any of the adopted emblems based on arguments pertaining to the “suitability” of the pre-existing ones. This, in turn, became an obstacle for the general objective of the movement, which is attaining universality [see: National Red Cross and Red Crescent Movement]. Similar controversies arose towards the end of the nineteenth century. By 1864, the only emblem adopted during the Geneva Conference to distinguish military medical services, volunteer aid workers, and wounded people was the red cross on a white background, which was the reversal of the Swiss flag. Notwithstanding, the Ottoman Empire declared that it would use the red crescent during the Russia-Turkey war between 1876 and 1878. The red crescent was finally recognized in 1929 as another distinctive emblem. A similar tension existed after World War ii, when Israel proposed the adoption of the Red Shield of David as an emblem. The proposal was set aside by States, which led Israel to accede to the 1949 GCs with a reservation: the use of the Red Star of David as a distinctive emblem [F. Bugnion, ‘The Red Cross and Red Crescent Emblems’, 272 irrc (1989)]. The validity of that reservation was questioned on several occasions. Marcela Giraldo – the views expressed are those of the author alone and do not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or the Inter-American Court of Human Rights (the author was a lawyer at the InterAmerican Court of Human Rights at the time of writing the entries) Bibliography

F. Bugnion, ‘The Red Cross and Red Crescent Emblems’, 272 irrc (1989). icrc, Adoption of an Additional Distinctive Emblem, 88(186) irrc (2006).

Administrative Detention; see: Internment Aerial Warfare. Air and missile operations can occur across the entire operational spectrum of the military, not all of which qualify as “warfare”. Legally speaking, “warfare” comprises only armed conflicts, whether international or non-international [see: International Armed Conflict; Non-International Armed Conflict]. Other situations in which air and missile operations may be used, below the threshold of ihl, may include criminal activities like t­ errorism,

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or internal disturbances and unrests. With the evolution of technology and the tendency of the public opinion to no longer accept the loss of servicemen involved in armed conflicts fought far away from home, air power has become a vital instrument for what has become known as “zero-casualty” wars. Pursuant to this doctrine, war on land should be eliminated or, alternatively, subordinated to air strikes. Examples of this trend are the 1991 Gulf War, the nato air strikes in the Former Yugoslavia in 1999, and, to some extent, the air strikes in Afghanistan in 2001/2002 and in Iraq in 2003. The increasing use of new technologies, including autonomous systems, has further contributed to the criticism, pioneered by human rights movement, that the “remoteness” of the event may give the operators, called upon to apply ihl, an “illusion of diminished responsibility” [see: Autonomous Weapons]. There has been, thus, a major evolution from the nineteenth century, when air power was used primarily for reconnaissance (airships), and the twentieth century, when it was used as a powerful strike force, to its current role. Notwithstanding the technological developments that have accompanied the evolution of aerial warfare – including the use of electronic means of target recognition and evaluation, “smart” munitions, and autonomous systems [A.P. Williams, P.D. Scharre (eds.), Autonomous Systems – Issues for Defence Policymakers (2015)] – and the argument, by some, that ihl is anachronistic, de facto the legal challenges raised by aerial warfare are associated with traditional concepts of the laws of war on land. These include, in particular, the principles of proportionality and distinction in targeting, as addressed by the icty with regard to the 1999 nato bombing campaign against the Federal Republic of Yugoslavia [W.J. Fenrick, ‘Targeting and Proportionality during the nato Bombing Campaign against Yugoslavia’, 12(3) ejil (2001), pp. 489–502; see: Distinction; Proportionality]. Apart from the 1949 GCs and the 1977 APs, few legal instruments deal specifically with aerial warfare: (i) the Hague Declaration (xiv) Prohibiting the Discharge of Projectiles and Explosives from Balloons, signed in The Hague on 18 October 1907, which prohibits the launching of projectiles and explosives from balloons (this was at a time when precise targeting was not possible, due to the existing air technology); and (ii) the (Hague) Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, drafted between December 1922 and February 1923 by the Commission of Jurists (established in 1922 by the Washington Conference on the Limitation of Armament). These are not binding, but have acquired a considerable impact and large parts thereof have customary law status. The issue of the extent to which these conventions apply was debated first in the 1994 San Remo Manual. This covers also the aerial elements of naval warfare and was used as an example by the Group of Experts that was ­convened

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by the Harvard Program on Humanitarian Policy and Conflict Research from 2004 to 2009. The outcome of the Group’s work was the publication, in 2013, of the “Manual on the International Law Applicable to Air and Missile Warfare” (amw Manual). According to the latter, the current challenges posed by the law of air (and missile) warfare do not derive solely from rapidly evolving technologies, but also by the new methods of “warfare” introduced by terrorist movements, such as the use of hijacking aircraft as a weapon [rule 63 (b) amw Manual]. The Black-Letter Rules of the amw Manual refer instead to the product of the collective efforts of the Group of Experts “as to the state of the most salient elements of the existing ihl in 2009”. Roberta Arnold – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W.J. Fenrick, ‘Targeting and Proportionality during the nato Bombing Campaign against Yugoslavia’, 12(3) ejil (2001).

Amnesty. Amnesty has been defined as any legal measure that has the effect of “prospectively barring criminal prosecution and, in some cases, civil actions against certain individuals or categories of individuals in respect of specified criminal conduct committed before the amnesty’s adoption”, or “retroactively nullifying legal liability previously established” [ohchr, Rule of Law Tools for Post-Conflict States, Amnesties (2009), p. 5]. While amnesties may take different forms (e.g. updated executive decree or legislation), amnesty is to be distinguished from pardon, diplomatic or head of State immunity, and, more generally, any other form of impunity with similar effects. Amnesty has long figured in history. International treaties, such as the 1648 Peace of Westphalia or the 1923 Treaty of Lausanne, already contained amnesty provisions or declarations. To date, from the standpoint of treaties, the only references to amnesty are included in Article 6(4) iccpr and, more importantly, in Article 6(5) apii, which provides that “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or d­ etained”. Notably, in 2005, the icrc asserted that “state practice establishes this rule as a norm of customary international law applicable in non-­international armed conflicts”, albeit with a slightly reformulated last phrase that excluded its applicability to “persons suspected of, or accused of or sentenced for war crimes” [rule 159 icrc Customary ihl Study; see: War Crimes].

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While amnesty provisions have proven to be important components in peace agreements, the permissibility of amnesty has raised, and continues to raise, controversy. The amnesty dilemma gained prominence in the 1990s, when the global anti-impunity discourse took hold within the international community. As a result, individual criminal responsibility became firmly rooted in international law and, at the same time, amnesty became to be gradually perceived as at odds with the values of the human rights community [see: Individual Criminal Responsibility]. Although arguments against the permissibility of amnesties have often been complex, the view that an amnesty is incompatible with, and should actually be prohibited under international law, is based on three main arguments. The first, and perhaps most frequently used, argument is that no amnesty should take precedence over the obligation of States to prosecute, try, and punish the perpetrators of serious crimes under international law. A second argument against the legality of amnesties has focused on the rights of victims, particularly the rights to a remedy and reparation, which would be violated in so far as an amnesty would impede their implementation. Finally, under the third line of argumentation, commentators have referred to an emerging norm of customary international law that prohibits amnesties, and argued that the ius cogens and erga omnes nature of the prohibition of certain conduct (such as genocide) renders amnesties for those international crimes and serious human rights violations impermissible. Over the last years, human rights courts as well as international and hybrid tribunals have also had to deal with the issue of amnesty, although their jurisprudence is relatively narrow in number and scope [see: Human Rights Courts and Bodies; Hybrid or Internationalised Tribunals]. For the most part, these bodies have been consistent in affirming that domestic amnesties for serious international crimes and serious violations of ihl or ihrl are incompatible with international law and represent a failure by States to fulfil their international obligations [e.g. Judgment, Gomes Lund v. Brazil, IACtHR, para. 47; Judgment, Marguš v. Croatia, ECtHR Grand Chamber, para. 139; General Comment No. 31 (80), UN Human Rights Committee, UN Doc CCPR/C/21/Rev.1/ Add.13 (2004); Judgment, Furundžija, icty, Trial Chamber, para. 155; Decision on Challenge to Jurisdiction: Lome Accord Amnesty, Kallon and ­Kamara, scsl, Appeals Chamber, para. 82]. Notably, international actors, such as the UN, have endorsed this position in various circumstances [e.g. UN Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, Principle 24 (2005); ohchr, Rule of Law Tools for Post-Conflict State: Amnesties (2009)].

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Against this background, however, State practice has not developed in the same direction. Recent studies show how the practice of granting amnesties, far from reducing as a result of the global anti-impunity movement, has actually increased in popularity in the last years. As a consequence, amnesty laws have continued to be enacted by States, mostly those emerging from armed conflict situations. Yet, as the writing of many leading scholars shows, the status of amnesty in international law seems rather unsettled. On the one hand, to date agreement seems to have been reached with respect to the prohibition of certain types of amnesties (e.g. blanket or unconditional amnesties, encompassing broad categories of beneficiaries and broad categories of crimes). Conversely, amnesties associated with other forms of accountability, such as the establishment of truth commissions, may rather be accepted [see: Truth Commissions]. Moreover, the idea that amnesties should be prohibited in light of an absolute duty to prosecute and punish perpetrators seems a relatively weak argument, considering that the existence of such a general duty remains contested and is, in any case, an obligation of conduct and not of result. Lastly, although the last decades witnessed the emergence of a strong body of international criminal law norms, the paucity of case law addressing amnesty as well as the icc’s silence on the matter seem rather to point to the conclusion that the permissibility of amnesties remains open to interpretation, at least as far as conditional amnesties are concerned (i.e. individual amnesties which are subject to a number of conditions in order to be granted). In conclusion, despite the inclusion of amnesty provisions in international treaties, such as the one provided in Article 6(5) apii, amnesty remains one of the most controversial aspects of contemporary international law. This is ­particularly true in light of the fact that any discussion concerning amnesty is inevitably linked to the need to balance the competing interests of justice and peace, which in the aftermath of an armed conflict are particularly critical and are not to be determined in absolute terms but rather depending on the context. Valentina Cadelo – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

F. Lessa, L. Payne, Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (2012). L. Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (2008).

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I.M. Siatitsa, M. Wierda, ‘Principle 24: Restrictions and other Measures relating to Amnesty’, in F. Haldemann, T. Unger (eds.), The UN Principles to Combat Impunity: A Commentary (2018).

Animals. When looking at whether ihl affords some protection to animals, the starting point is that there is no explicit mention of the words “animal(s)” or “wildlife” in the GCs and the APs, nor in any other major ihl instrument. This is perhaps unsurprising, as ihl revolves around the protection of human beings and objects involved in or otherwise affected by hostilities [see: International Humanitarian Law, General Principles of]. Animals must be therefore included in existing protected categories in order to be safeguarded against the effect of hostilities [J. De Hemptinne, ‘The Protection of Animals During Warfare’, 111 ajil Unbound (2017), pp. 273–276]. The first category one can logically think of is that of civilian objects, which are protected and must not be attacked unless they are used for military purposes [see: Civilian Objects; Military Objectives]. Such interpretation is premised on the consideration that animals are objects, or even property [see: Property, Private]. This understanding, however, vigorously clashes with an increasingly tangible trend under the national legislation of several countries, which consider animals somewhat as sentient creatures and afford them rights. These rights, in turn, correspond to obligations upon human beings and their violation may trigger individual criminal responsibility for offences such as mistreatment of animals, including acts of cruelty and causing their death [A. Peters, ‘Animals Matter in International Law and International Law Matters for Animals’, 111 ajil Unbound (2017), pp. 252–253]. The Italian Court of Cassation stated that in order to qualify as the crime of mistreatment of animals, a conduct need not result in actual injury to or impairment of the animal, but it must simply cause suffering. Thus, emphasis is placed on the subjective feelings of the animal as the victim of the wrongdoing. This is important because, as the Court underlined, it signals that the State considers animals as “living creatures capable of sensing, with pain, behaviors that are not dictated by sympathy, compassion and humility” [Judgment 46291/2003, Italian Court of Cassation, Third Criminal Section]. As an alternative to the classification as civilian objects, animals, in particular wildlife, can be encompassed within the natural environment, which enjoys a degree of protection against the effect of hostilities [arts. 35, 55 api; see: Environment]. To the extent that the environment is constituted by civilian objects, which are protected and may be said to include animals (or at least they do not exclude them explicitly), the latter are protected accordingly.

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Lastly, regardless of whether there is room under ihl for their safeguard, animals remain protected at all times by the applicable national legislation of the State(s) where the armed conflict takes place, whether it is an international or non-international armed conflict. However, the realities of an armed conflict may make it inevitable that some laws and regulations suffer from poor implementation. In an international armed conflict, State authorities or agencies normally devoted to the protection of animals and wildlife (for example park rangers or shelters for abandoned or abused animals) may not be functional due to the hostilities. The same holds true in non-international armed conflict, with the added problem that armed groups exercising control over part of the State territory may still not be capable to enforce laws protecting animals or may simply be unwilling to do so in favor of exploiting the trade of wildlife to fund their war efforts. As the UN pointed out, in some cases resources such as ivory “become the raison d’etre for conflict, replacing the complex social, economic, cultural and ethnic factors as the primary reason to continue to fight” [UN Environment Programme, The Environmental Crime Crisis. Threats to Sustainable Development from Illegal Exploitation and Trade in Wildlife and Forest Resources (2014), p. 49]. At the opposite side of the discussion as to what protection can be afforded to animals, lies the legal reality that animals can also be made object of attack during armed conflict in certain circumstances. First, they can be considered military objectives [see: Military Objectives]. This can be the case, for example, for donkeys, horses or other animals that are employed to transport ammunitions, weapons, and military equipment on behalf of a party to a conflict. In this respect, animals become military objectives not on account of what they do by themselves but by virtue of what humans make them do. In other words, they cannot decide autonomously to join the armed forces of a State or to directly participate in hostilities. Accordingly, highly trained dogs serving with special forces could never be regarded as combatants or civilians taking part in hostilities, yet they can be targeted as military objectives if the requirements of Article 52(2) api are met. The icrc pointed out that the expression “armed forces” “does not allow, for example, the use of animals trained to attack, who are incapable of distinguishing between an able-bodied enemy and an enemy who is ‘hors de combat’” [1987 icrc Commentary api, para. 1672]. Second, animals can become collateral damage in the conduct of hostilities, that is to say incidental loss of civilian objects which is not disproportionate when compared to the military objective that the attacking party targeted [see: Proportionality]. Interestingly, animals may be protected, or their protection may significantly increase, on account of some measures that parties to an armed conflict may

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decide to adopt under ihl [see: Specially Protected Zones]. A clear example is the demilitarized zone that divides the Democratic People’s Republic of Korea and the Republic of Korea. Established in 1953 by way of armistice [see: Armistice], this 250 kilometres long and 4 kilometres wide strip of land has since seen virtually no human activity taking place. This resulted in a pristine environment where fauna and flora flourished [K.-G. Kim, The Demilitarized Zone (dmz) of Korea. Protection, Conservation and Restoration of a Unique ­Ecosystem (2013)]. Although the establishment of this demilitarized zone did not aim at increasing the protection of animals, this is what in practice has occurred. Niccolò Pons – the views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers Bibliography

J. De Hemptinne, ‘The Protection of Animals During Warfare’, 111 ajil Unbound (2017). A. Peters, ‘Animals Matter in International Law and International Law Matters for ­Animals’, 111 ajil Unbound (2017). UN Environment Programme, The Environmental Crime Crisis. Threats to Sustainable Development from Illegal Exploitation and Trade in Wildlife and Forest Resources (2014).

Annexation. In international relations, annexation refers to the seizing of territory of a State by another State and its juridical incorporation into this State. Annexation is not a concept defined by law. It is a colloquial term applying to a factual situation governed by various rules of international law. A distinction must be made between the annexation of empty land and the annexation of foreign territory. The annexation of empty land, i.e. uninhabited territory not subject to sovereignty (terra nullius) was in the past a way to acquire a territory under two conditions. First, the territory must be seized by State agents (not private persons) and it should be effective. For example, in a case concerning the occupation of Eastern Greenland by the Norwegian Government, the pcij has stated that: “[…] a claim to sovereignty […] involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority” [Judgment, Legal Status of Eastern Greenland, pcij, pp. 45–46]. Accordingly, on that occasion, the mere discovery of the island was considered an inchoate title and insufficient to base a title of sovereignty on. Second, the occupation should be peaceful and public. Third States should be aware of this seizure and, if applicable, they may be in a position to

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advance a more valid title of sovereignty than the occupying State. By remaining silent, third States are presumed to recognise the title of sovereignty. In this regard, an arbitrator declared that “no contestation or other action whatever or protest against the exercise of territorial rights by the Netherlands over the Talautse […] Isles (including Palmas) has been recorded. The peaceful character of the display of Netherlands sovereignty for the entire period to which the evidence concerning acts of display relates (1700–1906) must be admitted” [Award, Island of Palmas Case, pca, p. 868; also: Judgment, ­Anglo-Norwegian Fisheries Case (United Kingdom v. Norway), icj, pp. 138–139]. Nowadays, the only existing empty lands are the high seas, the seabed, outer space, and the celestial bodies, but they are res communis and no State may annex them [arts. 89 and 137 UN Convention on the Law of the Sea; art. ii Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies]. Antarctica is not terra nullius since several States have claimed sovereignty over parts of it. However, the States concerned have agreed to demilitarize Antarctica and to confine the mainland to scientific research without renunciation by any State party of rights of or claims to territorial sovereignty [arts. i–iv The Antarctic Treaty]. Ius ad bellum rules forbid States to annex territory of a foreign State [see: Ius ad Bellum]. Thus, the well-known unsc Resolution 242 (1967) ­emphasizes “the inadmissibility of the acquisition of territory by war”. When Israel ­proclaimed “reunified Jerusalem, the eternal capital of the State of Israel”, the unsc “reconfirm[ed] that the acquisition of territory by force [was] inadmissible” and “that all legislative and administrative measures and actions taken by ­Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem ha[d] no legal validity” [unsc Resolution 476 (1980), preamble and para. 3]. Similarly, when Iraq invaded Kuwait and decided that it was its 19th province, the unsc immediately “decide[d] that annexation of Kuwait by Iraq under any form and whatever pretext ha[d] no legal validity and [was] considered null and void” [unsc Resolution 662 (1990), para. 1]. Whilst the forced annexation of all or part of a foreign State violates the most basic rules of international relations and is totally prohibited by international law, ihl provides for a regulatory framework in respect of occupied territories [see: Occupation]. Eric David – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

E. David, Principes de Droit des Conflits Armés (2012), pp. 562 et seq.

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Anti-Personnel Mine Ban Convention (1997). The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Anti-Personnel Mine Ban Convention or apmbc) is the most widely ratified conventional arms disarmament treaty, with 164 States parties and 1 signatory (the Marshall Islands) as at 1 June 2018. It was adopted in 1997, at a specially convened diplomatic conference in Oslo, and entered into force on 1 March 1999. The Convention was based on a draft adapted from the 1992 Chemical Weapons Convention [see: Chemical Weapons Convention (1992)]. Article 1(a)-(b) apmbc prohibits all use within or outside armed conflict, as well as development, production, acquisition, stockpiling, retention, and transfer of anti-personnel mines. Allegations of use by States parties Sudan, Turkey, Ukraine, and Yemen have been made in recent years by the civil society monitoring network, Landmine Monitor [International Campaign to ban Landmines, Landmine Monitor 2015]. Yemen has admitted using anti-personnel mines. Assisting, encouraging, or inducing prohibited activities are also unlawful under the Anti-Personnel Mine Ban Convention [art. 1(c) apmbc]. According to Article 4 apmbc, each State is allowed up to four years, after becoming party to the treaty, to destroy all stocks (aside from the “minimum number absolutely necessary” for the “development of and training in mine detection, mine clearance, or mine destruction techniques” under art. 3(1) apmbc). No extension to the deadline is possible. As at November 2017, Greece and Ukraine were in serious violation of the Convention, having failed to complete destruction of their stockpiles by their four-year deadlines. The Convention requires that States parties clear and destroy all anti-­ personnel mines in mined areas under their jurisdiction or control, within ten years of becoming party. However, it allows affected States to seek and obtain extensions up to ten years at a time to this deadline from the other States parties [art. 5 apmbc]. To date, several dozen have done so. As at October 2016, 37 States parties were confirmed, or strongly suspected to contain anti-personnel mines. Consequently, they had Article 5 apmbc obligations to conduct surveys and, where mines are found, clear and destroy all anti-personnel mines [Mine Action Review, Clearing The Mines 2016 (2016), p. 1]. The Convention calls for States parties “in a position to do so”, to provide support for risk education and victim assistance [art. 6(3) apmbc], but does not explicitly require a State to assist its own mine victims. A verification and compliance mechanism is included in the Convention, which foresees the possibility of non-consensual fact-finding [art. 8 apmbc], but the likelihood of this occurring in practice is very low. Annual meetings of States parties are complemented by five-yearly review conferences. The latest review conference

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(the third) was held in Maputo, Mozambique, in June 2014. No reservations are allowed to the treaty’s provisions [art. 19 apmbc]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Landmine and Cluster Munitions Monitor (http://www.the-monitor.org/en-gb/home .aspx). S. Maslen, The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction – Commentaries on Arms Control Treaties (2006). Mine Action Review (http://www.mineactionreview.org/). UN Office at Geneva, Article 7 database.

Anti-Terrorist Operations. While not a legal term of art, the term anti-terrorist or counter-terrorism operations is commonly used to describe the policies, practices, techniques, and measures that governments use to combat or prevent terrorism [see: Terrorism (International Law)], in particular, but not ­exclusively, at the tactical level. In principle, anti-terrorist operations against individuals suspected of involvement in terrorism or terrorist organizations [see: Terrorist Organizations] are governed by a law enforcement and criminal justice paradigm. Under the law enforcement or criminal justice paradigm, terrorism is treated as a crime that engages domestic law enforcement mechanisms, including in relation to the use of force, detention, or surveillance. The international legal instruments applicable to specific acts of terrorism (such as the 1997 International Convention for the Suppression of Terrorist Bombing), or the regional conventions addressing terrorism per se (such as the 2005 Council of Europe Convention on the Prevention of Terrorism), frame terrorism from a criminal justice and law enforcement perspective, criminalizing specific acts and organizing the repression of such acts, including their transnational dimension. Yet, the label “anti-terrorist operation” is not reserved for or exclusively used in this context. States frequently refer to “anti-terrorist operations” when faced with a domestic insurgency, due to their reluctance to acknowledge that they are involved in a non-international armed conflict and in order to de-­legitimise their opponents. Contemporary examples include the Ukrainian government’s reference to “anti-terrorist operations” in the “Anti-Terrorist Operation Zone” [osce Special Monitoring Mission to Ukraine, Protection of Civilians and their Freedom of Movement in the Donetsk and Luhansk Regions (2015)] or the

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Syrian President’s consistent claim that he is fighting terrorists [G. Baghdadi, ‘Assad: I Will not Stop Fight against “Terrorists”’, cbs News (2011)]. The question of whether such situations amount to a non-international armed conflict, to which ihl applies, is not determined by the labelling of the group as terrorist or the operations as anti-terrorist. Instead, the existence of an armed conflict and the determination of the parties to such an armed conflict depends on the requirements of ihl, to be assessed in light of the relevant facts [see: Non-International Armed Conflict]. However, in parallel to the traditional preference to treat insurgents as terrorists, the armed conflict or war paradigm became increasingly prominent when addressing terrorism with the so-called “war on terror” in the aftermath of the attacks of 11 September 2011. On the one hand, in situations not amounting to an armed conflict, ihl rules and concepts are relied upon to justify the targeted killings of suspected terrorists abroad, as well as administrative detentions outside the regular law enforcement and criminal justice framework [see: Targeted Killing; Deprivation of Liberty; Terrorist Organizations]. On the other hand, large-scale military force is deployed to prevent and combat terrorism, which is illustrated by the 2001 invasion of Afghanistan or the use of force by an international coalition against isil in Iraq and Syria since 2014. At the same time, the adequacy of existing ihl concepts and rules to address a purportedly new kind of armed conflict against terrorist groups with transnational reach was challenged, most prominently in relation to combatant status [see: Combatants]. Blurring the lines between terrorism and armed conflict, as well as the often unreflective mixing of the respective legal regimes governing terrorism and armed conflict, put a significant amount of pressure not only on ihl, but also on ihrl. Sandra Krähenmann – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

A. Bianchi, Y. Naqvi, International Humanitarian Law and Terrorism (2011). H. Duffy, The ‘War on Terror’ and the Framework of International Law (2015). M. Sassòli, Transnational Armed Groups and International Humanitarian Law, Program on Humanitarian Policy and Conflict Research (2006). B. Saul, ‘Terrorism and International Humanitarian Law’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014).

Apartheid. The historical origins of the term apartheid come from the Afrikaans expression for apartness designated to describe the system of racial

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s­ egregation in South Africa. The legal concept of apartheid also originated in this context but, following the wave of decolonization in Africa and Asia in the 1960s and onwards, it has now acquired independent application throughout various branches of international law. Apartheid violates the udhr and is specifically prohibited in the International Convention for the Elimination of All Forms of Racial Discrimination (cerd) and the International Convention on the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention). Apartheid is also a crime against humanity. In 1973, the Apartheid Convention was adopted by the unga and entered into force in 1976. The Convention declared that “apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of […] racial segregation and discrimination […] are crimes violating the principles of international law” [art. i Apartheid Convention]. Although the Apartheid Convention specifically addressed the apartheid system in South Africa, it covers any such policies and practices engaging in various “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them” [art. ii Apartheid Convention]. In 1998, the icc Statute included apartheid as a crime against humanity, which concerns “inhumane acts of a character similar to” the other crimes against humanity in the icc Statute and “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” [art. 7(2)(h) icc Statute]. In addition, “[p]ractices of apartheid” constitute a grave breach of api in international armed conflict, “when committed wilfully and in violation of the Conventions of the Protocol” [art. 85(4)(c) api; see: Grave Breaches]. State practice indicates that the adoption of the practices of apartheid constitutes a crime against humanity and a war crime. Such practices can be incorporated in the customary rule of ihl prohibiting non-discrimination [rule 88 icrc Customary ihl Study; see: Non-Discrimination]. Sunkyung Kim – the views expressed are those of the author alone and do not necessarily reflect the views of the Ninth Circuit Court of Appeals Bibliography

J. Dugard, Human Rights and the South African Legal Order (1978). J. Dugard, J. Reynolds, ‘Apartheid, International Law, and the Occupied Palestinian Territory’, 24(3) ejil (2013). J. Dugard, N. Haysom, G. Marcus, The Last Years of Apartheid: Civil Liberties in South Africa (1992).

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A. Zahar, ‘Apartheid as an International Crime’, in A. Cassese (ed.), Oxford Companion to International Criminal Justice (2009).

Area Bombardment; see: Indiscriminate Attacks Armed Forces. The armed forces of a party to a conflict include “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates” [art. 43(1) api; rule 4 icrc Customary ihl Study]. Members of the armed forces are considered to be combatants and are entitled to prisoner of war status [see: Combatants; Prisoners of War]. This definition applies in international armed conflict, but it may be of relevance in non-international armed conflict for the purposes of the principle of distinction [see: Direct Participation in Hostilities; Distinction]. The requirements of visible distinction from the civilian population and respect for ihl are no longer considered to be constitutive elements of the definition of armed forces under Article 43(1) api. They have instead become individual obligations, the violation of which may entail consequences for the combatant concerned, such as, in particular, the loss of combatant privileges or prosecution for violations of ihl [see: Combatants]. Article 43(1) api includes a requirement of an internal disciplinary system to enforce compliance with ihl (generally supplementing ihl provisions concerning command ­responsibility) [see: Discipline; Command Responsibility], but this aspect does not affect the definition of armed forces for determining prisoner of war status. Any armed group belonging to a party to an armed conflict may fall under the definition of armed forces. It is, therefore, no longer necessary to distinguish between regular and irregular armed forces. However, in some instances, paramilitary or armed law enforcement agencies, such as police forces, gendarmerie, and constabulary have also been formally incorporated into armed forces (e.g. in Argentina, Belgium, France, Germany, the Netherlands, the Philippines, South Korea, and Zimbabwe). Such formal incorporation usually ­requires notification to the other parties to the conflict in light of the principle of distinction, although such notification does not affect the status of the ­persons concerned. Domestic law regulates membership in States’ regular armed forces and in paramilitary or law enforcement agencies incorporated into State armed forces. Upon completion of active duty, a person no longer belongs to regular State armed forces and becomes entitled to the protection conferred on

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civilians [see: Civilians]. Conversely, domestic law usually does not regulate ­membership in irregularly constituted armed forces, such as militias, volunteer corps, or organized resistance movements belonging to a belligerent party. This determination may, however, be made on the basis of criteria applying to organised armed groups in non-international armed conflicts [icrc (N. ­Melzer), Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), p. 25; see: Direct Participation in Hostilities; Armed Groups]. Anastasia Kushleyko – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005), pp. 14–17. icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in ­Hostilities under International Humanitarian Law (2009), pp. 21–25.

Armed Groups. Armed groups or, more formally, organized armed groups, are the military forces of non-State parties to armed conflict. However, the terms “armed groups” and “non-State parties to conflict” tend to be used interchangeably, as the delineation between a non-State party and its armed forces is often fictional. Compare for example the National Democratic Front of the Philippines (ndfp) and the Fuerzas Armadas Revolucionarias de Colombia (farc). The ndfp is the overall political entity, which has responsibility over the New People’s Army (npa), its military wing [ndfp, Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol i of 1977 (1996)]. Here, the ndfp is the party to the conflict, while the npa is the armed group. For the farc, however, there is no structural control by a political wing over the military wing, so the party to the conflict and the armed group are one and the same. Armed groups are also commonly referred to as rebel movements, ­guerrillas, national liberation movements, freedom fighters, and terrorist organisations, etc., although these classifications have no significance under ihl [see: Guerrilla; Freedom Fighters; Terrorist Organizations]. In non-international armed conflict, treaty-based obligations for armed groups first arose under Common Article 3 GCs [see: Non-International Armed Conflict; Common Article 3]. In order to be bound, armed groups must be sufficiently organised and involved in protracted armed violence with government armed forces or other armed groups. apii creates a more detailed set of

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

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

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There is a growing awareness of the need to engage armed groups towards compliance with their ihl obligations and other international standards. The icrc engages armed groups in confidential dialogue and disseminates ihl to their forces in many conflicts throughout the globe. The non-governmental organization Geneva Call has created a series of thematic Deeds of Commitments allowing armed groups to publicly commit to international standards, and submit to a monitoring regime. Thematic areas addressed are anti-­personnel landmines, children and armed conflict, and sexual violence/gender discrimination [see: Landmines; Children; Child Soldiers; Rape and Sexual Violence; Gender Violence; Non-Discrimination]. Jonathan Somer – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is or has been affiliated with Bibliography

J.K. Kleffner, ‘The Applicability of International Humanitarian Law to Organized Armed Groups’, 93(882) irrc (2011). T. Rodenhäuser, Organizing Rebellion, Non-State Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law (2018). M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’, 1(1) jihls (2010).

Armistice. An armistice is agreed upon by belligerent parties if they wish to provisionally put an end to the hostilities. An armistice may be general, suspending the military operations of the belligerent States “everywhere”, but can also be geographically defined or limited to “certain fractions” of the belligerent’s armed forces [art. 37 1907 Hague Regulations]. In addition, it can serve a limited, humanitarian purpose. Article 15 gci, for example, refers to armistices when demanding that they be agreed upon “[w]henever circumstances permit” to allow for “the removal, exchange and transport of the wounded left on the battlefield”. Armistice agreements must be distinguished from ceasefire agreements. The latter are concluded with a view to temporarily suspend hostilities, for example, to allow for humanitarian relief to be delivered. Conversely, the ­former aim at providing an opportunity for making preparations for the termination of an armed conflict. In other words, they are adopted to suspend military operations and thereby “pave the way for peace negotiations”, in order for the

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suspension of operations to become a permanent termination of hostilities [J. Kleffner, ‘Scope of Application’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013), p. 66]. Armistices therefore form the first stage of the conclusion of a peace treaty; a step before the stage of preliminaries of peace or agreements in principle [see: Peace Treaty]. A general armistice may nonetheless be seen as a “general close of military operations” for the purposes of the application of the gciv [art. 6 gciv]. While historically an armistice agreement was not considered to (automatically) end the “state of war”, it has been submitted that this may be the case if the parties to such an agreement intend it to have that effect [R. Baxter, ‘Armistices and other Forms of Suspension of Hostilities’, 149 Recueil des Cours (1976), p. 353]. Furthermore, as few conflicts are treated as giving rise to a formal state of war nowadays, it appears that the difference between armistices and ceasefires, or other forms of suspension of hostilities, “has become increasingly blurred” [Kleffner, p. 65]. Armed conflicts may therefore also end without a formal peace treaty, but rather as the result of an armistice or ceasefire reflecting the mutual consent of the parties to terminate the armed conflict [Kleffner, p. 69]. Finally, it must be noted that armistice agreements qualify as “special agreements” and may therefore not “adversely affect the situation of” protected persons, “nor restrict the rights” conferred upon them by the GCs [art. 6 GCI; art. 6 GCII; art. 6 GCIII; art. 7 gciv; see: Special Agreements]. This is particularly important for prisoners of war who have not yet been repatriated by the time an armistice takes effect [2016 icrc Commentary gci, paras. 957, 985]. Rogier Bartels – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

R. Baxter, ‘Armistices and other Forms of Suspension of Hostilities’, 149 Recueil des Cours (1976). J.K. Kleffner, ‘Scope of Application’, in Fleck, D. (ed.), The Handbook of International Humanitarian Law (2013).

Arms Trade Treaty (2014). The Arms Trade Treaty (att) regulates the international trade of conventional arms. The Treaty’s entry into force on 24 D ­ ecember 2014 followed a gestation that was heavily contested by a number of stakeholders. Critics note the substantial input of arms manufacturing companies in the negotiations. The final drafts presented at two preparatory conferences in

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2012 and 2013 both failed to reach consensus. Then, on 2 April 2013, the unga adopted the final draft of the President of the second conference, in spite of objections from Syria, Iran, and North Korea, and putting aside Russian arguments about the failures to reach consensus. The adopted text of the att is a compromise agreement, seeking to balance human security and humanitarian interests against State security and economic interests (including self-defence and the protection of the legal arms industry). From any stakeholder’s perspective, the entry into force of the att represented a watershed moment, as it binds States parties to consider h ­ umanitarian concerns when regulating arms trade actors. It is the first multilateral i­ nternational treaty to require States parties to prevent the transfer of weapons where there are concerns that the weapons will be used to commit international crimes, including violations of ihl [art. 6(3) att]. States parties must also deny an arms transfer if it would violate other of the State’s ­international o­ bligations, including obligations pursuant to Chapter vii measures of the unsc, in particular arms embargoes [art. 6(1) att (2013); see: Embargo]. The scope of the att extends to eight specified categories of conventional weapons, seven of which derive from the UN Register of Conventional Arms, namely: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles, and missile launchers. The eighth category includes small arms and light weapons [art. 2 att; see: Small Arms and Light Weapons]. The export of ammunitions and munitions, as well as parts and components, are also covered [arts. 3, 4 att]. It should be noted that the specified categories are ad minimum requirements: the att encourages States parties to include the broadest range of conventional arms in their national lists. The Treaty does not address non-conventional weapons, i.e. the nuclear, chemical, and biological weapons prohibited under other international and domestic regimes. Nonetheless, the att may have indirect effects on the nonconventional weapon capabilities of rogue States by regulating the transfer of missiles, parts, and components, which could conceivably be used in the ­development or construction of non-conventional weapons. The att applies to activities that constitute “transfers” within the meaning of the Treaty, namely the export, import, transit, trans-shipment, and brokering of arms [art. 2(2) att]. Provisions are also aimed at tackling the diversion of arms away from the intended end-recipient [art. 11 att]. Notably, the Treaty does not cover cross-border movements of conventional arms by or on behalf of a State party for the State’s own use. A State’s military exercise outside of its borders, or its involvement in peacekeeping missions, are therefore unaffected

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by the Treaty [see UN Office for Disarmament Affairs (unoda), att Implementation Toolkit]. The text has been criticized as void of substance, too vague in its content, or toothless in lacking mechanisms to enforce its substance against breaches. Rather than restricting major arms flows that facilitate breaches of ihl, there is the possibility that the att lends legitimacy to the trade without imposing substantive regulation. Critics point to the limited legal value of broadly-worded provisions, such as the requirement to establish and maintain “a national control system” for exports, which grant States parties a large degree of interpretive space [Preamble, att Principles]. Implementation and enforcement is left largely to the discretion of States parties [art. 5 att]. Some early anecdotal evidence of domestic implementation of the att suggests it may in fact be a source of increased trade liberalization, when compared to preceding domestic export regulations. The provisions contained in Article 6 att can be criticized as too vague, lacking detailed criteria for a State to assess the likelihood of ihl violations. During the negotiations, the icrc advocated for stronger, more detailed benchmarks: the end-users’ record of violating ihl, their attempts to prevent or repress violations, the rule of law characteristics of the State, and record of diversion of arms [icrc, Arms Transfer Decisions: Applying International Humanitarian Law and International Human Rights Law Criteria – A Practical Guide (2016)]. Even so, at the level of substantive international law obligations, the att is an unprecedented development. For centuries, the arms trade has taken place with remarkably little legal regulation or effective oversight, restricted only by municipal export laws that tended not to explicitly recognise ihl criteria, combined with ad hoc arms embargoes by the unsc and other regional bodies such as the EU. The att now faces twin challenges. Firstly, it will always be challenging for States parties to distinguish between arms destined for legitimate security needs and arms that will be used to commit serious violations of ihl. Secondly, the arms trade is enormously lucrative. In implementing the Treaty, many States will be under considerable pressure for regulation to remain as liberal as ever. While the Treaty is rightly heralded as an u ­ nprecedented development, its practical success turns on whether States parties, many of whom have violated unsc embargoes in the past, will pay respect to the spirit of the obligations imposed by the att. Tomas Hamilton – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia

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Bibliography

D. Akande, ‘What is the Meaning of “Consensus” in International Decision Making?’, ejil: Talk! (2013). A. Clapham, S. Casey-Maslen, G. Giacca, S. Parker (eds.), The Arms Trade Treaty: A Commentary (2016).

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

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icty. Thus, for example, Major-General Stanislav Galić, commander of Bosnian Serb forces in and around Sarajevo from September 1992 to August 1994, was charged and convicted of “a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population. The campaign of shelling resulted in thousands of civilians being killed or injured” [Judgment, Galić, icty, Trial Chamber, paras. 15, 763]. In the Milošević case, “modified air-bombs” (air bombs to which Bosnian Serb forces attached rockets and which were then fired from launch pads on the ground) were said to deviate from the intended target by as much as one kilometre [Judgment, D. Milošević, icty, Trial Chamber, paras. 92, 93, 97]. The icty Trial Chamber found that the bombs were “highly inaccurate” and “indiscriminate” weapons [D. Milošević, para. 912]. In contrast, in the later Gotovina case, an icty Trial Chamber concluded that multiple-barrel rocket launchers were not inherently indiscriminate, when used in an urban setting [Judgment, Gotovina et al., icty, Trial Chamber, para. 1897], even though almost one half of the rockets fired could be expected to land between 300 and 900 metres from their target. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

M.E. Haskew, Postwar Artillery 1945-Present – The Essential Weapons Identification Guide (2011). D. Kravetz, ‘The Protection of Civilians in War: The icty’s Galić Case’, 17(3) Leiden Journal of International Law (2004).

Asymmetric Warfare. Asymmetric warfare denotes armed conflict that is characterised by inequality of arms between the parties involved (States or non-State actors) and a tendency by the militarily weaker opponent to resort to unlawful methods of warfare to compensate for its inferior position. Asymmetric warfare may manifest itself on different levels, such as the operational level (including ruses, covert operations, perfidy, terrorism, etc.), the strategic military level (guerrilla warfare, massive retaliation, Blitzkrieg, etc.), and the strategic political level (moral or religious war, the clash of cultures, etc.). It may assume different forms, including asymmetry of power, means, methods, organization, values, and time. Warfare has been traditionally understood to refer to armed conflict between States of roughly equal military strength. The wars of the past primarily

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took place between the troops of national armies that confronted each other in open battle. However, since the end of the Cold War, armed conflicts have become increasingly asymmetric due to poorly organised and equipped armed groups confronting more powerful States [see: Armed Groups]. The overwhelming technological and military superiority of States caused such groups to forego distinguishing themselves and to employ various forms of guerrilla warfare [see: Guerrilla]. As a result, military clashes often occur in densely populated areas nowadays, which does not only put the civilian population at the increased risk of accidental harm, but may also facilitate the direct participation of civilians in hostilities [see: Direct Participation in Hostilities]. Moreover, because of their inability to overcome the enemy during direct confrontation, armed groups are increasingly resorting to means and methods of warfare prohibited by ihl. This may include perfidious conduct [see: Perfidy], conducting indiscriminate attacks [see: Indiscriminate Attacks], or even directly targeting civilians, humanitarian, or medical personnel and their infrastructure [see: Attacks against Civilians and Persons Hors de Combat; Medical Personnel; Humanitarian Assistance]. State armed forces, in turn, are often unable to accurately identify the adversary and run the risk of being attacked by persons who are not distinguishable from the civilian population [see: Combatants; Armed Groups]. Overall, this development has put considerable strain on the concepts of  non-reciprocity and the equality of belligerents [see: Reciprocity; Belligerents, Equality of], as well as the willingness of both State armed forces and non-State armed groups to accept their obligations under ihl. Anastasia Kushleyko – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

R. Geiss, ‘Asymmetric Conflict Structures’, 88(864) irrc (2006). A. Paulus, M. Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict: a Tentative of Conceptualization’, 91(873) irrc (2009). T. Pfanner, ‘Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action’, in 87(857) irrc (2005).

Asphyxiating Gases; see: Geneva Gas Protocol (1925) Assigned Residence. Whilst the law relating to non-international armed conflict is more ambiguous [see: Deprivation of Liberty], the GCs explicitly ­allow for the detention of protected persons (civilians) through internment or

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

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suggests that the internment or assigned residence of protected persons in occupied territories, under Article 78 gciv, should be even more exceptional than in the case of the internment or assigned residence of protected persons within the territory of a party to the conflict, under Article 42 gciv [1958 icrc Commentary gciv, p. 367]. gciv contains a section devoted to the treatment of civilian detainees [arts. 88–131 gciv; see: Deprivation of Liberty, Treatment]. However, with the ­exception of the right to “be treated with humanity” and the right “not be deprived of the rights of fair and regular trial”, certain regulations for the treatment of such detainees may be derogated from pursuant to Article 5 gcvi [see: Derogation]. The internment or assigned residence of civilians in an international armed conflict must cease “as soon as possible after the close of hostilities” [art. 133(1) gciv]. Article 132(1) gciv additionally provides that, during hostilities or occupation, an interned civilian must be released “as soon as the reasons which necessitated his internment no longer exist”. This is reinforced by Article 75(3) api, which includes, as a fundamental guarantee applicable to all persons who are in the power of a party to an international armed conflict, the right to be released “as soon as the circumstances justifying the arrest, detention or ­internment have ceased to exist”. It should be noted that the “unlawful confinement of a protected person” amounts to a grave breach of gciv [art. 147 gciv; see: Grave Breaches]. Unjustifiable delay in the repatriation of civilians also constitutes a grave breach of api [art. 85(4)(b) api]. For civilians who have been convicted and sentenced to imprisonment, or against whom criminal, non-disciplinary, proceedings are pending, Article 133(2) gciv acts as an exception to the obligation under Article 133(1) gciv to release civilian internees after the close of hostilities. Such persons may be detained until the close of pending proceedings and until completion of the  ­sentence. This remains a wide discretionary power in the hands of the ­detaining or occupying power [1958 icrc Commentary gciv, pp. 515–516]. Alex Conte – the views expressed are those of the author alone and do not ­necessarily reflect the views of the International Commission of Jurists Bibliography

R. Goodman, ‘The Detention of Civilians in Armed Conflicts’, 103(1) ajil (2009). J. McLoughlin, G.P. Noone, D.C. Noone, ‘Security Detention, Terrorism, and the Prevention Imperative’, 40(3) Case W. Res. J. Int’l L. (2009). B. Oswald, ‘The Detention of Civilians in Military Operations: Reasons for and ­Challenges to Developing a Special Law of Detention’, 32 Melbourne University Law Review (2008).

Attacks

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Attacks. Under ihl, attacks are defined as “acts of violence against the adversary, whether in offence or in defence” [art. 49(1) api]. Such acts may be carried out at any point during the armed conflict and by any of the parties to it. While potentially confusing, it is essential to distinguish at the outset the notion of attack under ihl from that of “armed attack” under the UN Charter. The latter refers to an act triggering the individual or collective right to self-defence under ius ad bellum. In contrast, the notion of attack, like all aspects of ihl, has no bearing on and is not influenced by the reasons which motivated the armed conflict [see: Ius ad Bellum]. By the same reasoning, the ihl notion of attack is also distinct from the ius ad bellum notions of aggression and use of force, which are assessed separately from an ihl determination of armed conflict. This entry therefore aims to clarify the definition of attack under ihl, as provided in Article 49(1) api. As a first logical point, the qualification of acts of violence excludes from the definition any non-violent act even when directed against the enemy, such as propaganda encouraging popular insurrection or blocking the enemy’s supply routes. In this sense, it is generally considered that the notion of attack is narrower than that of hostilities, since the latter may include acts falling below the threshold of violence, and narrower than the notion of military operations, which may be non-violent. By contrast, all military operations by the armed forces of a party to the conflict that resort to means of warfare are considered as attacks under ihl. An act of violence under ihl must be aimed at weakening the military potential of the enemy and, hence, operations the purpose of which is to destroy, damage or neutralize enemy targets fall under the definition of attack. The question of whether the neutralization of targets amounts to an attack has given rise to heated debates, particularly in relation to cyber warfare [see: Cyber Warfare]. The definition of military objectives, to which attacks shall be strictly limited, encompasses not only total or partial destruction and capture, but also the neutralization of objects [see: Military Objectives]. It therefore implies that violent acts aimed at neutralizing military objectives are indeed attacks [art. 52(2) api]. That being said, the notion of attack does not presume the status of the target. The rules on the conduct of hostilities strictly require that all attacks be carried out in accordance with the principle of distinction [see: Distinction]. Nonetheless, attacks against the civilian population or civilian objects are still attacks, albeit prohibited ones (provided that, for them to be violations of ihl, there is a nexus with the armed conflict). This has been confirmed by extensive case law that has considered attacks against civilians as war crimes, as well as by the icc Elements of Crimes, which interpret ­Article 8(2)(b)(i) icc Statute as requiring that the perpetrator directed an attack against the civilian population as such, or against individual ­civilians not

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taking direct part in hostilities. In that respect, it is worth mentioning that, in the Ntaganda case, icc Pre-Trial Chamber ii included in the definition of the war crime of attacking civilians different types of conduct: “any conduct, including shelling, sniping, murder, rape, pillage, attacks on protected objects and ­destruction of property, may constitute an act of violence for the purpose of the war crime of attacking civilians” [Decision on the Confirmation of Charges, Ntaganda, icc, Pre-Trial Chamber ii, para. 46; see: Attacks against Civilians and Persons Hors de Combat]. Moreover, attacks are acts of violence against the adversary. This qualification ensures a link with the armed conflict: the notion of attack does not cover acts of violence that would normally fall under ordinary crimes or delinquency, even if carried out while taking advantage of the existence of the violent situation inherent to an armed conflict. In addition, as mentioned before, the concept of adversary should be understood in a broad sense, to include the enemy territory and population, as the definition is not restricted to lawful attacks against legitimate targets. Contrary to the colloquial understanding, which often refers to offensive or aggressive acts, the legal notion of attacks under ihl includes both acts of violence carried out in offence or in defence. This reinforces the irrelevance of ius ad bellum, as attacks may be carried out both at the beginning of the conflict and at any point during the course thereof. It is also meant to cover the use of armed force to slow or halt an attack by the enemy, as well as counter-attacks. It should be noted that attacks as defined in api are limited to acts which may affect the civilian population on land, although such acts may be carried out from land, air, or sea. This restriction was extensively discussed during the treaty’s travaux préparatoires, and is meant to avoid any unintentional modification of the bodies of international law governing sea and air warfare [see: Aerial Warfare; Naval Warfare]. Concerning the geographical scope of application, Article 49 api adds that the definition applies to “all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict, but under the control of the adverse Party”. The purpose is to prevent parties to the conflict from denying the applicability of the rules when operating on their own territory. It should be noted, however, that the mention of “under the control of the ­adverse party” does not modify the protection granted to private or public property located in occupied territory, the destruction of which remains ­prohibited by Article 53 gciv [see: Property, Destruction and Appropriation/ Seizure of]. Generally, attacks refer to acts carried out as part of the hostilities between the parties to the conflict and do not cover other uses of force

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that may be part of law enforcement once a party (either the occupying power ­during a situation of occupation or a party to a non-international armed conflict) has secured effective control over a part of the territory. The question of the temporal scope of application was also raised during the Diplomatic Conference that led to the adoption of the APs. The example of mines is often cited to emphasize the fact that attacks also cover acts of violence the effect of which may be delayed in time [see: Landmines]. The placing of a mine, therefore, constitutes an attack “whenever a person is directly endangered by a mine laid” [1987 icrc Commentary api, para. 1881]. In the end, the definition of attack is of crucial importance, as it triggers the application of the rules governing the conduct of hostilities and aiming at protecting the civilian population from the effects of such hostilities [see: Hostilities, Conduct of]. That being said, the wording used in Articles 48 and 57 api implies that even in situations that fall below the threshold of attacks, at least the principles of distinction and precautionary measures should be respected. These two provisions apply to all military operations. Anne Quintin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

N. Melzer, Targeting Killings in International Law (2008), pp. 270–271.

Attacks against Civilians and Persons Hors de Combat. Civilians may not be made the direct object of attack, unless they take direct part in hostilities, and then only for such time as they do so [see: Civilians; Direct Participation in Hostilities]. Similar rules protect persons hors de combat [see: Hors de Combat] and non-combatant members of armed forces [see: Medical Personnel; Religious Personnel]. These rules of ihl are further enforced by international criminal law. Violations thus attract not only the international responsibility of States but also, potentially, individual criminal responsibility [see: State ­Responsibility; Individual Criminal Responsibility]. Although its antecedents can be traced back at least to the Hague Regulations, the modern legal framework which forbids making civilians the direct object of attack emanates primarily from the 1977 APs. Article 51 api not only proscribes making civilians and the civilian population the direct object of a­ ttack in an international armed conflict, but also attacks whose primary ­purpose is to spread terror among the civilian population, indiscriminate ­attacks, and disproportionate attacks [see: Terrorism (ihl); Indiscriminate

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

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the offence to be closely related to attacks upon civilians. Similarly, no proof of death or injury has been required if unlawful attacks are charged as an underlying act of the crime against humanity of persecution [Judgment, Gotovina, icty, Trial Chamber, paras. 1161, 1841]. Attacks against civilians and persons hors de combat must be executed with knowledge and intent, especially with regard to the civilian status of the victim. However, given the ihl rule that civilian status must be presumed when in doubt [art. 50(1) api], it suffices to “show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant” [e.g. Judgment, Karadžić, icty, Trial Chamber, para. 457; Judgment, D. Milošević, icty, Appeals Chamber, para. 60]. This may be proven inferentially [Judgment, Strugar, icty, Appeals Chamber, para. 271]. Notwithstanding the observation that this is primarily the conduct expected of a member of the military [Judgment, Blaškić, icty, Appeals Chamber, para. 111; Kordić and Čerkez, para. 48], in fact it must apply to anyone who assumes the obligations of ihl by participating in hostilities. It is irrelevant whether the attack in question was launched offensively or defensively [e.g. Kordić and Čerkez, para. 47]. Nor is it required that a specific individual is targeted. It is equally an ­offence to target the “civilian population as such”, which can “never be used as a target or as a tactical objective” [Galić (2003), para. 50]. In such instances, it becomes irrelevant whether particular individuals are participating in hostilities, since the presence even of some combatants among a predominantly civilian population does not suffice to deprive it of its civilian character [art. 50(3) api; see: Civilian Population]. Apparently indiscriminate or disproportionate attacks may likewise allow the inference that civilians actually were the direct object of the attack [D. Milošević, para. 66]. As a matter of treaty law, Article 8 icc Statute likewise grants the icc jurisdiction to punish intentionally directing attacks against the civilian population and civilians not taking a direct part in hostilities [art. 8(2)(b)(i), 8(2)(e) (i) icc Statute]. In at least this respect, Article 8 icc Statute appears to be more progressive than customary law, imposing no requirement for an unlawful attack to result in death or injury. The actus reus is merely that the perpetrator “directed” an attack [art. 8(2)(b)(i)-1 icc Elements of Crimes]. As previously discussed, it is possible that customary law may have evolved to apply a similar approach. Finally, and more generally, key challenges remain not only in comprehensively and consistently enforcing the prohibition upon making civilians the d­ irect object of attack (obviously), but also in clarifying the application of these fundamental principles within the ever changing circumstances of

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armed ­conflict. Thus, it seems likely that such cases will be confronted with issues including: the scope of persons who may be directly targeted in non-­ international armed conflicts; the scope for targeting “dual use” objects (including in the context of networked and cyber operations) [see: Military ­Objectives], and the increasing use not only of relatively new technologies [see: Autonomous Weapons], but also older ones, in the form of long range indirect fires and aerial bombardments [see: Bombardment]. Such issues not only underline the legal but also the significant practical difficulties of bringing many “conduct of hostilities” crimes to trial – the evidentiary demands of such cases may be far greater than other types of violation of ihl. Yet, if the clear intent of States to enforce the cardinal principle of distinction is to be achieved, these challenges (among others) must, and can, be overcome. Matthew Cross – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

W.H. Boothby, The Law of Targeting (2012), pp. 70–71, 89–91, 141–190, 281–286, 381–391, 440–442, 489–511, 544–548, 555–556, 560–562. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2010), pp. 89–108, 121–152. P. Ducheine, M.N. Schmitt, F. Osinga (eds.), Targeting: the Challenges of Modern Warfare (2016), pp. 77–100, 121–146, 177–200. W.J. Fenrick, ‘The Prosecution of Unlawful Attack Cases before the icty’, 7 yihl (2004). H. Olasolo, Unlawful Attacks in Combat Situations: From the icty’s Case Law to the Rome Statute (2008), pp. 80–88, 103–152.

Attacks against Historic Monuments, Works of Art and Places of Worship. Historic monuments and buildings dedicated to art or religion (collectively, “cultural property” or “cultural objects”) are protected under the general ihl framework that applies to civilian objects [see: Civilian Objects]. In addition, they benefit from an additional layer of protection, by virtue of their nature as heritage of humankind or of a particular people – a factor distinguishing them from ordinary civilian objects. Broadly speaking, cultural objects enjoy protection from attack, unless they become military objectives [see: Military Objectives]. Accordingly, they can only be attacked if they are used for ­military purposes, and if the attack would meet the requirements of military necessity and proportionality under article 52(2) api [see: Military Necessity; ­Proportionality; Attacks]. Attacks are also subject to precautionary

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measures by the attacker [see: Precautions, Active]. The icrc has recognized the ­belligerents’ obligation to respect cultural property, as detailed above, as a norm of customary ihl applicable in both international and non-international armed conflict [rule 38 icrc Customary ihl Study]. The idea that “works of art”, that are not being used for military purposes, should not be the object of attack is rooted in the first codifications of ihl dating back to the nineteenth century. It was already included in Article 35 of the 1863 Lieber Code, in Article 17 of the 1874 Brussels Declaration, and in Article 34 of the 1880 Oxford Manual (also referring to buildings dedicated to religion). Article 27 of the Hague Regulations of 1899 and 1907 and Article 5 of the 1907 Hague Convention ix oblige belligerents to take the necessary measures to spare “as far as possible” cultural objects that are not being used for military purposes. Furthermore, Article 56 of the 1907 Hague Regulations prohibits in absolute terms the destruction or damage to cultural property in occupied ­territory [see: Occupation]. These provisions reflect customary ­international law. The framework for the protection of cultural property during armed conflict was significantly expanded with the adoption of the 1954 Hague Convention and its Additional Protocols [see: Hague Convention for the Protection of Cultural Property (1954) and its Protocols]. The Convention limits the lawfulness of attacks against cultural property to exceptional situations where the attacking party can invoke “imperative military necessity” [art. 4(2) 1954 Hague Convention]. However, this formulation proved too vague to constitute an effective limitation on attacks on cultural property in practice. The adoption of api, which contains a clearer and narrower definition of military objectives, was a turning point. It clarified that cultural property is generally civilian property, which enjoys immunity from attack. It loses this protection only if and when it becomes a military objective as per the definition in Article 52(2) api. Furthermore, Article 53 api and Article 16 apii reaffirm the prohibition of carrying out “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”. This prohibition is thus limited to intentionally directing acts of hostility at the protected objects, but does not encompass ­collateral ­destruction or damage. Nevertheless, the provisions are meant to complement the o­ bligations set out in Article 27 Hague Regulations and customary international law. Under the APs, cultural property is only protected if it is of ­relevance to humankind; if not, it still benefits from the protection of the 1954 Hague Convention or, failing that, from the general protection afforded to civilian objects. Of note, the APs also refer to spiritual heritage, which is missing in the 1954 Hague Convention.

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The 1999 Additional Protocol to the 1954 Hague Convention strengthens the protection enjoyed by cultural property in a number of respects, notably by imposing more stringent requirements for making it the object of attacks. Specifically, the Protocol provides that cultural property can only be attacked if it has become a military objective and there is no feasible alternative available to obtain a similar military advantage. This clarifies the notion of “imperative military necessity” in Article 4 of the 1954 Convention. The Protocol further details the precautionary and other measures that the attacking party must take before carrying out an attack. Amongst these, the attacker has the burden to verify that the objects attacked are not of a cultural nature [arts. 6–7 1999 Additional Protocol to the 1954 Hague Convention]. Even more stringent requirements apply for attacks on property under enhanced protection, unless “requirements of immediate self-defence” make it possible to waive those obligations [art. 13 1999 Additional Protocol to the 1954 Hague Convention]. Carrying out attacks against historic monuments, works of art, and places of worship is a serious violation of ihl to which individual criminal responsibility attaches, irrespective of the nature of the conflict. For example, the icc Statute provides that intentionally directing attacks against “buildings dedicated to religion, […] art, [and] historic monuments, […] provided they are not military objectives” is a war crime in international and non-international armed conflicts [art. 8(2)(b)(ix), (e)(iv) icc Statute, respectively]. The 1954 Hague Convention already required States parties to impose criminal or disciplinary sanctions on persons responsible for breaches of the ­Convention, but without listing what violations require criminal sanctions. ­Article 85(4)(d) api, which provides that directing acts of hostility against cultural  or  spiritual heritage constitutes a grave breach of the Protocol, giving rise to individual criminal responsibility, is thus a step forward [see: Grave Breaches]. Under the icty Statute, the Tribunal has jurisdiction over the “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” [art. 3(d) icty Statute]. Importantly, the icty Statute requires destruction or damage to cultural property for criminal liability to arise [contra: Judgment, Jokić, icty, Trial Chamber, para. 50]. In contrast, the icc Statute criminalises the simple launching of attacks, irrespective of whether actual damage was caused. Building on the icc Statute, Article 15 of the 1999 Additional Protocol to the 1954 Hague Convention defines making cultural property the object of attack as a serious violation requiring criminal prosecution if committed intentionally. This recognizes the additional immunity and protection granted to cultural property under ihl above that generally granted

Attacks against Non-Defended Localities and Demilitarised Zones 199

to civilian objects. The Al Mahdi Trial Chamber confirmed this interpretation of Article 8 icc Statute and added that the provision makes no distinction as to whether the attack was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group [Judgment, Al Mahdi, icc, Trial Chamber viii, paras. 15–17]. More generally, the prosecution of Al Mahdi before the icc signals that intentionally launching attacks against cultural property is, of itself, and despite some controversies, an act of sufficient gravity to warrant the icc’s intervention. Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, ‘New Rules for the Protection of Cultural Property in Armed Conflict’, 81 irrc (1999). R. O’Keefe, The Protection of Cultural Property in Armed Conflict (2006), pp. 92–235. R. Wolfrum, ‘Cultural Property, Protection in Armed Conflict’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2010).

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

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

Attacks against Non-Defended Localities and Demilitarised Zones 201

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

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Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, ‘Non-Defended Towns’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015). J.P. Lavoyer, ‘International Humanitarian Law, Protected Zones and the Use of Force’, in W. Biermann, M. Vadset (eds.), UN Peacekeeping in Trouble: Lessons Learned from the Former Yugoslavia (1999). N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions: A Commentary (2015), p. 369.

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

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

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thereby reducing it to starvation or forcing it to flee the area [see: Deportation or Transfer of Civilians]. Lastly, paragraph (5) of Article 54 api provides that, in case of imperative military necessity, a belligerent power may attack and even destroy indispensable objects, but only in its own territory. Conversely, it may not carry out such attacks or acts of destruction in any other part of the territory which is or may be under enemy control. This part of the provision is a clear reflection of the reluctance, shown by many States at the Diplomatic Conference of 1974–1977, to limit their available means of defence against the advance of enemy forces [1987 icrc Commentary api, para. 2116]. A notorious example of such total defence tactics dates back to the French invasion of Russia in 1812, when Cossacks were given the order to burn villages, towns and crops, with a view to preventing or slowing down the advance of the Napoleonic troops [on the Russian campaign and war tactics, see: D. Lieven, Russia against Napoleon (2011)]. These scorched earth actions compelled the French forces to rely on a supply system that was incapable of feeding the entire army in the field, thereby subjecting them to extreme conditions and severe famine. In case of belligerent occupation [see: Occupation], on the other hand, the provision is more restrictive, as the occupying power withdrawing from the occupied territory may still carry out those scorched earth strategies, in case military operations render it absolutely necessary, but may not destroy objects which are indispensable for the survival of the civilian population [1987 icrc Commentary api, para. 2121]. As regards non-international armed conflicts, Article 14 apii constitutes a simplified version of Article 54 api. Its relevant provision is, however, of utmost importance in these scenarios, as apii does not contain any general rule concerning protection of civilian objects, unlike api [see: Civilian Objects]. A question arises here as to whether or not the protection envisaged in Article 14 apii only applies to those indispensable objects that are located in the areas controlled by the enemy, or whether it also extends to the objects situated in those parts of the territory that are still under the State’s authority [1987 icrc Commentary apii, para. 4808]. The reason for such controversy is that in international armed conflicts States retain freedom of action in the territory under their effective control and may thus attack and even destroy everything on their side [art. 54(5) api]. To the contrary, as situations covered by apii are normally more precarious, objects in the possession of one party may rapidly fall in the hands of the other party [1987 icrc Commentary apii, paras. 4809–4811]. It might therefore be contended that, in non-international armed conflict, indispensable objects may never become military targets.

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Federica Pira, Niccolò Pons – the views expressed are those of the authors alone and do not necessarily reflect the views of the Kosovo Specialist Chambers or any other institution the authors are affiliated with Bibliography

A. Cassese, ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law’, 3(1–2) ucla Pac. Basin Law J. (1984). D. Marcus, ‘Famine Crimes in International Law’, 97(2) ajil (2003). J. Pejić, ‘The Right to Food in Situations of Armed Conflict: The Legal Framework’, 83(843) irrc (2001).

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

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

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The provisions in api and apii constituted progressive development at the time of their adoption. Indeed, the novelty of granting absolute protection to works and installations containing dangerous forces which are military objectives under the conditions provided for in api led some States parties to enter reservations, notably France and the United Kingdom [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005), Vol. 2, p. 815]. There is insufficient evidence that Article 56 api or Article 15 apii have evolved into customary law since. Indeed, Rule 42 icrc Customary ihl Study stipulates a less strict obligation of parties to international and non-international armed conflicts, namely that “[p]articular care must be taken if works and installations containing dangerous forces […] and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population” [Henckaerts, Doswald-Beck, Vol. 1, p. 139]. Jann K. Kleffner – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005), Vol. 1, pp. 139–142; Vol. 2, pp. 814–843.

Attacks not Directed at a Specific Military Objective; see: Indiscriminate Attacks Attacks which Employ a Method or Means of Combat the Effects of which Cannot be Limited; see: Indiscriminate Attacks Attacks which Employ a Method or Means of Combat which Cannot be ­Directed at a Specific Military Objective; see: Indiscriminate Attacks Aut Dedere Aut Iudicare; see: Grave Breaches Autonomous Weapons. There is not an internationally agreed definition of ­autonomous weapons. This is in large part due to autonomy being a relative concept, the understanding of which varies across disciplines, including ­science, engineering, and philosophy. But it is also because a definition would almost certainly encompass weapon systems that have been in use for decades, an inconvenient truth for both proponents of an autonomous weapons ban, as well as the militaries already employing them. This entry utilizes autonomy to

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

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The wide range of autonomous weapons renders categorical assessments of ihl compliance impossible. Some current systems may be permissibly employed despite little ability to distinguish between lawful and unlawful targets [see: Distinction]. The lawfulness of such systems depends on their being used in remote areas devoid of civilian personnel and objects. This is why current autonomous weapons are used in the middle of the ocean and at high ­altitude. And the environment in which the greatest development of autonomous weapons is occurring is underwater, where there is a similar lack of civilians. But it is important to recognize that IHL imposes obligations on people, not on inanimate objects like a weapons system. Technological advances and militaries increasing reliance on delegating more tasks to machines and computers raise the very real possibility, if not likelihood, that autonomous weapons will be deployed in operating environments containing civilians, notably on land and in urban areas. The humans employing land based anti-personnel autonomous weapons would have to make the legal determination that their use complies with the principle of distinction and is not expected to result in incidental harm that is excessive to the concrete and direct military advantage expected to be gained [see: Proportionality]. Moreover, as weapon systems become increasingly autonomous, would that alter the application of traditional accountability norms? Such systems do not exist, and may never. However, technology is progressing at a faster pace than both law and ethics, leading some to suggest a moratorium on autonomous weapon development. Indeed, current social science research indicates that humans are increasingly uncomfortable with machines conducting moral decision-making through algorithmic cost benefit analysis. Currently, machines are vastly superior to humans in quantitative analysis, repetitive actions, and sorting at least some forms of data, while ­humans ­remain better at qualitative judgment and reasoning. This suggests that while there are circumstances in which lethal targeting is better left to humans, there may be other instances whereby the use of autonomous weapons might lead to fewer civilian casualties. It is possible that some ­future autonomous ­weapons may be unable to comply with ihl, which is why some groups are seeking ­regulation. But it is also possible that future autono­ mous weapons may be able to not only comply with ihl, but to do so to a greater degree than humans. If that is the case, not only would ihl permit such weapons, the law would r­equire that militaries consider their employment. Chris Jenks – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

N. Bhuta, S. Beck, R. Geiss, H.-Y. Liu, C. Kress (eds.), Autonomous Weapons Systems: Law, Ethics, Policy (2016). R. Crotof, ‘The Killer Robots Are Here: Legal and Policy Implication’, 36(5) Cardozo L. Rev. (2015). M.N. Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics’, Harvard National Security Journal (2013). P. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (2009). M. Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’, 47(5) Vand. J. Transnat’l L. (2014).

Bacteriological Weapons; see: Biological Weapons Convention (1972); Geneva Gas Protocol (1925) Belligerency. In a general sense, belligerency refers to a state of war between two or more States. Historically, a State of Belligerency referred to a situation in a civil war, whereby the laws of war are applied by the contending parties, and where the insurgency has acquired the attributes of an inter-State war and has been recognized de jure or de facto by either the established government, or by third parties, or by both. In order to qualify as a State of Belligerency, an insurrection had to have reached a stage whereby it had a functioning government, had raised armed forces under responsible command which (by and large) respected and applied the laws of war, and which controlled a significant portion of ­territory. Recognition of belligerency by the established government could either be through an official act or result from de facto application of the laws of war, for example, through the imposition of a naval blockade before the coast of the rebellious party, as was the case in the American Civil War. In such ­situations, the exercise of belligerent rights led to a situation whereby the laws of war were applied without recognizing the rebellious party as a s­ overeign State [K. Hall, The Oxford Guide to United States Supreme Court Decisions (2001), p. 246]. In situations where a third State’s interests were affected by a civil war, it could recognize the exercise of belligerent rights in order to s­ afeguard those interests by, for example, claiming the rights of neutrality. However, this definition is now primarily of historical significance. The practice of recognizing belligerency in civil wars fell into disuse in the course of the twentieth century due to a number of factors. One of these was the ­reluctance

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on the part of parent States to confer any degree of legitimacy upon a rebellious entity. The second reason is the influence of political considerations relating to the expression of approval or disapproval of a rebel movement by third States. The latter stood in the way of open recognition of belligerency in the Spanish Civil War by States which opposed the political alignment of General Franco, while the States which supported his rebellion (Nazi Germany and Italy), instead of recognizing belligerency, which would have required neutrality on their part, recognized General Franco’s Nationalist regime as the government of Spain and openly intervened militarily on his behalf [L. Moir, The Law of Internal Armed Conflict (2004), pp. 20–21]. Since the end of World War ii, the practice of recognizing belligerency has been replaced by developing the regime of ihl that applies in non-international armed conflicts [see: Non-International Armed Conflict]. Terry Gill – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

K. Hall, The Oxford Guide to United States Supreme Court Decisions (2001), p. 246. L. Moir, The Law of Internal Armed Conflict (2004), pp. 20–21.

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

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in the absence of a recognition of belligerency. International organizations ­possessing a sufficient degree of international legal personality can also, in principle, qualify as belligerents, although in general such organizations have been reluctant to claim such status for political reasons and exercise belligerent rights as an organization [see: International Organizations]. The primary consequence of possessing belligerent status is that the relevant regime of ihl (international or non-international armed conflict) will apply as a matter of treaty or customary law to all actions, undertaken in the context of the armed conflict, which are directed against the opposing party or parties. The applicability of ihl to such acts includes the right to engage in hostilities against the opposing party or parties and the duty to respect all applicable rules in the conduct of hostilities and in the treatment of persons and objects that enjoy protection under ihl. It also includes the duty to enforce compliance with applicable ihl by persons acting on behalf of the belligerent party and in territory under its control. This implies that a belligerent party, or an individual acting on behalf of a belligerent, can be held to account for failure to respect and uphold ihl [see: State Responsibility; Individual Criminal Responsibility]. Terry Gill – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.K. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). D. Kritsiotis, ‘War and Armed Conflict: the Parameters of Enquiry’, in R. Liivoja, T. ­McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (2016).

Belligerents, Equality of. The notion of equality of belligerents denotes the fact that ihl applies fully and equally to all parties to an armed conflict. This equality is directly linked to one of the cardinal principles of ihl as set out in, inter alia, the Preamble to api, which reaffirms the equal application of ihl to all parties, irrespective of the causes of the conflict or the motives of the parties [see: Ius Ad Bellum]. It can hardly be too strongly emphasized how important and fundamental this principle is. The whole purpose of ihl is to regulate and mitigate as far as possible the conduct of hostilities and to provide protection to all persons who are protected from attack, to combatants rendered hors de combat as a consequence of wounds, sickness, shipwreck, distress evacuation of an aircraft or

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surrender, or to any who find themselves in the power of the adversary through detention or occupation. If the principle of equal application and the concomitant notion of equality of belligerents is not observed, it severely undermines the whole basic purpose of ihl. It is a principle of long standing and, despite the fact that attitudes about the justifiability of engaging in war have changed radically since its emergence in the eighteenth century as a rule of customary law, it remains a cornerstone of contemporary ihl. Nevertheless, it is probably true that the principle fits less comfortably in relation to non-international armed conflicts, than it does at the inter-State level [see: Non-International Armed Conflict]. States are sovereign and equal entities and there has long been no doubt that international law applies equally to them. In contrast, international law did not apply to non-State entities until quite recently. Nor were internal conflicts subject to the law of war except in cases of recognition of belligerency until after World War ii [see: Belligerency]. In recent years, the development of ihl has brought the two regimes of armed conflict much closer in terms of substantive coverage and protection. However, it cannot be ignored that alongside ihl, non-international armed conflicts are also subject to domestic law, and the acts of insurrectional or rebel movements are generally criminalized under that law, which is difficult to reconcile with the notion of equality of belligerents from a more practical perspective. Moreover, some experts have pointed out the gap between what can be expected from a State, in terms of respecting and upholding ihl, and what can be realistically expected from many, if not all, armed groups [see e.g. M. Sassòli, ‘Critically Examining Equality of Belligerents in Non-International Armed Conflicts’, hpcr Blog, 22 March 2012]. While both these factors cannot be ignored, it is nevertheless generally considered that they should not be seen as rendering the principle nugatory or impossible to apply in non-international armed conflicts. The arguments for its application in terms of promoting and enhancing the protection offered by ihl are as cogent in non-international armed conflicts as in traditional interState wars. Moreover, if ihl is (reasonably) observed by all parties, this can go a long way toward making a peace settlement between parties to a noninternational conflict more likely and more durable if such an agreement is reached. If so, a government can determine to grant amnesty or refrain from prosecution for violations of national law, but there are significant obstacles of both a legal and non-legal nature to granting blanket amnesty for serious violations of international law [see: Amnesty]. Terry Gill – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

M. Sassòli, ‘Critically Examining Equality of Belligerents in Non-International Armed Conflicts’, hpcr Blog, 22 March 2012.

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

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e­ ffectively ­restricted the prohibition to one of no first use. Today, however, it is uncontested that the use of biological weapons is prohibited in all armed conflicts under customary ihl, and that their intentional use amounts to a war crime [rules 73 and 156 icrc Customary ihl Study]. The icc Statute was amended to include these war crimes in the context of international and non-international armed conflict in 2017 [art. 8(2)(b)(xxvii), 8(2)(e)(xvi) icc Statute]. States are required to “destroy or divert to peaceful purposes” all biological weapons prior to becoming party to the Convention [art. ii bwc]. States adhering to the Convention shall not either transfer or in any way assist, ­encourage, or induce anyone else to acquire or retain biological weapons [art. iii bwc]. States parties are required to take all necessary national measures to implement the Convention domestically [art. iv bwc]. It is claimed that, despite adhering to the Convention, the Soviet Union established a biological warfare project that, at its height, employed more than 50,000 people in various research and production centres. These centres ­produced tons of anthrax bacilli and smallpox virus, some for use in intercontinental ballistic missiles, and engineered multidrug-resistant bacteria, including plague. In 1979, an accidental release of anthrax from a weapons facility in Sverdlovsk killed at least 66 people. In 1992, Russian President Boris Yeltsin admitted to the accident. In addition to earlier use by States, non-State actors have disseminated toxins. In 1995, members of the Aum Shinrikyo cult released anthrax in the Tokyo subway killing 13 and injuring thousands. In 2001, anthrax was sent by mail to US media and government offices: five people died as a result. A first review conference of the Convention was held in Geneva in March 1980, in accordance with Article xii of the Convention. The second review conference in 1986 agreed on a set of confidence-building measures. These were expanded by the third review conference in 1991. These measures included an undertaking to submit annual reports on national biological defence research and development programmes and on past involvement in offensive or defensive biological research and development. The fifth review conference in 2002 decided that meetings of States parties should be organised annually, a practice that has continued ever since [Fifth Review Conference, Final Document (2002), para. 18a]. The sixth review conference decided to establish an Implementation Support Unit for the Convention within the Geneva branch of the UN Office for Disarmament Affairs. The eighth review conference, held in Geneva in November 2016, affirmed “the determination of States Parties to condemn any use of biological agents or toxins other than for peaceful purposes by anyone at any time” [Eighth Review Conference, Final Declaration (2016), sub-para. v].

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The biggest challenge facing the bwc is the lack of a meaningful oversight mechanism akin to the Organisation for the Prohibition of Chemical Weapons. Following the failure to agree on a verification protocol in 2001, States parties decided to hold annual meetings of experts to discuss the way forward. But these are unlikely to lead to agreement any time soon given the need for consensus among the States parties and in the face of US opposition to verification, largely on the basis of the dual-use nature of the biosciences. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

F. Frischknecht, ‘The History of Biological Warfare’, 4(1) embo Reports (2003). E. Hooker, ‘Biological Warfare’, Emedicine Health. O. Meier, ‘Don’t Neglect the Biological Weapons Convention’, The Blog of the Arms Control Association. G. Pearson, ‘Time for Structural Changes to Make the Biological and Toxin Weapons  Convention more Effective’, 1(1) Global Security: Health, Science and Policy (2016).

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

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

N. Klein, Maritime Security and the Law of the Sea (2013).

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Bombardment. Bombardment is traditionally understood as a method of warfare that targets an adversary’s land, sea, or air bases indiscriminately and with heavy weaponry. Not until the nineteenth century did States attempt to regulate bombardment, notably with the Declaration of Brussels of 1874 and then in the Hague Convention ix of 1907. The terminology of bombardment has now been integrated into the concept of “attack” in contemporary legal instruments, particularly Article 49(1) api, which embraces all “acts of violence against the adversary” [see: Attacks]. Of particular relevance, Article 51(5)(a) api notes that an indiscriminate attack includes “an attack by bombardment by any methods or means, which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area, containing a similar concentration of civilians or civilian objects (emphasis added)” [see: Indiscriminate Attacks]. What is noteworthy about this provision is that it creates a presumption that attacks via bombardment are indiscriminate and, thus, prohibited, as a matter of international law. Conversely, it is conceivable that targeting an area by bombardment is lawful, provided that the whole area contains a number of military objectives that can only feasibly be attacked together. In the final analysis, though, the legality of a bombardment will turn on an assessment of the usual considerations in api pertaining to the protection of civilian populations and objects, including the principles of distinction, precautions, proportionality, and the imperative to strictly limit attacks to military objectives [see: Distinction; Precautions, Active; Proportionality; Military Objectives]. Although api applies during international armed conflicts, the principles regulating bombardment may also be distilled from Article 13 apii pertaining to non-international armed conflicts, which provides for the general protection of civilians from being made the object of attack. Furthermore, Article 13(2) apii repeats verbatim the text of Article 51(2) api, including the phrase that “[a]cts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited” [see: Terrorism (ihl)]. It can, therefore, be said that bombardment with the primary purpose of spreading terror is prohibited in both international and non-international armed conflicts. Warfare by means of bombardment is also necessarily limited by conventions that restrict the use of certain weapons where an indiscriminate attack will necessarily arise. Michael Ramsden – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

F. Kalshoven, ‘Bombardment: From “Brussels 1874” to “Sarajevo 2003”’, in J. Doria (ed.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (2009). M. Roscini, ‘Targeting and Contemporary Aerial Bombardment’, 54 International and Comparative Law Quarterly (2005), p. 411.

Booby-Traps. Under Article 2(4) Protocol ii ccw, a booby-trap is defined as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object, or performs an apparently safe act” [see: Convention on ­Certain Conventional Weapons (1980)]. Rules governing or restricting the use of booby-traps stem from the general purpose of the ccw, which is to restrict the use of specific types of weapons which are considered to cause unnecessary or unjustifiable suffering to combatants or affect civilians indiscriminately. More specifically, the main concern with the use of booby-traps is that they may be inadvertently activated by and cause injury or death to innocent civilians. Protocol ii ccw is also known as the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. The amended ­version of Protocol ii ccw was adopted on 3 May 1996, following the First Review Conference on the ccw. This amended version sought to strengthen the original Protocol ii ccw as regards the scope of its application and substantive prohibitions. With respect to booby-traps, the amended Protocol ii ccw contained more specific provisions restricting the use of such weapons in areas with a high concentration of civilians [art. 7(2), 7(3) Protocol ii ccw; see also: rule 80 icrc Customary ihl Study]. Article 7(1) Protocol ii ccw prohibits the use of booby-traps which are “attached to or associated with” objects which have a special protection under ihl. More specifically, the booby-traps cannot be “attached to or associated with: (a) internationally recognised protective emblems, signs or signals; (b) sick, wounded or dead persons; (c) burial or cremation sites or graves; (d) medical facilities, medical equipment, medical supplies or medical transports; (e) children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children; (f) food or drink; (g) kitchen utensils or appliances (with an exception for military ­establishments, locations or supply depots); (h) objects clearly of a religious nature; (i) historic monuments, works of art or places of worship; and (j) animals or their

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

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UN forces are absolutely prohibited from the use of booby-traps [unsg, Bulletin: Observance by United Nation Forces of International Humanitarian Law (1999), Section 6.2]. While the focus of international debate and attention has often been on the use and control of landmines, there have been examples where there has been discussion of booby-traps. For example, a Special Rapporteur for the UN Commission of Human Rights, in a report on human rights in Afghanistan, described the use of booby-traps disguised as toys, pens, cakes, and soap which caused serious injuries to children [UN Commission on Human Rights, Report on the Situation of Humans Rights in Afghanistan (1986), paras. 88–91]. In 1996, the unsc called on the military authorities on both sides of the armed conflict in Cyprus to clear all booby-trapped areas inside the buffer zone without further delay as requested by the UN Peacekeeping Force in Cyprus [unsc Resolution 1062 (1996)]. Despite the legal restrictions on the use of booby-traps, they continue to be employed in the context of armed conflicts, including in Syria, where there have been reports that Islamic State’s forces widely planted booby-traps before withdrawing from built-up urban areas which continue to pose a threat to civilians and combatants alike. Harshan Athureliya – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

W. Boothby, Weapons and the Law of Armed Conflict (2016), Chapter 13. Review Conference of the States parties to the ccw, Final Report (1996).

Brussels Declaration (1874); see: Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907) Camouflage. Colloquially, camouflage is the disguising of military personnel, equipment and installations, by painting or covering them to make them blend in with their surroundings [Oxford Dictionary]. As part of ruses of war permitted by international law [see: Ruses of War], camouflage is an act intended to confuse or mislead the enemy [art. 37 api]. The icrc states in this regard that “[a] combatant who takes part in an attack, or in a military operation preparatory to an attack, can use camouflage and make himself virtually invisible against a natural or man-made background, but he may not feign a civilian status and hide amongst a crowd” [1987 icrc Commentary api, p. 438; see: Perfidy]. Although it was not included in the final text of apii, its draft Article 21(2) affirmed that camouflage was within

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those acts intended to mislead the adversary, or to induce him or her to act recklessly [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law – Vol. ii (2005), p. 1245]. States have continuously affirmed the legality of camouflaging as a permitted ruse of war, which has been reflected in several State military manuals, such as those of Argentina, Australia, Canada, Croatia, France, Israel, the United Kingdom, and the United States. Generally, the aim of camouflage is to make a combatant or military objects, such as tanks or artillery pieces, appear to be a civilian object, such as f­ oliage or as a building. It has been claimed that an effective ­camouflage “lulls enemy soldiers into a false sense of security from attack, because it makes them believe – wrongly – that they are surrounded solely by civilian objects even when they are within the military object’s field of fire” [K. Heller, ­‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’ 91 International Law Studies (2015), p. 520]. The icrc ­Customary ihl Study affirmed the customary character of ruses of war in both international and non-international armed conflicts [rule 57 icrc Customary ihl Study]. There has been some interesting analysis on the differences between the use of camouflage by soldiers (to appear to be a civilian) and objects (such as a tank appearing to be a civilian building). As observed by a commentator “only the former invites the adversary to believe that ‘he is entitled to, or is obliged to accord, protection’ under ihl” [Heller, p. 523]. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call Bibliography

J. K. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’ 91 International Law Studies 517 (2015).

Capture Card. The capture card is a manifestation of a prisoner of war’s ­entitlement timeously to inform his or her family of his or her capture [see: ­Prisoners of War]. Its purpose is, thus, humanitarian. Enshrined in Articles 70–71 gciii, the entitlement was previously recognised in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War, relevant provisions of which were based upon the Hague Conventions of 1899 and 1907 [see: Hague Law] and lessons learned in World War i. gciii itself draws furthermore on the lessons of World War ii. Article 70 gciii requires that a detaining power enable every prisoner of war to write a card “immediately upon capture”, or in any event “not later than one week” after arrival at a camp. Detention in a mere transit camp cannot

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serve to extend this time limit. The card can be addressed either directly to the prisoner of war’s family or to the Central Prisoners of War Information Agency [art. 123 gciii; see: Central Tracing Agency]. The rapid expedition of the capture card is inherent to its conception. It must be dispatched as quickly as possible and cannot be delayed. Annex iv to gciii provides a model capture card. Its size and layout are designed so as to: (a) minimise the administrative burden placed on the detaining power; (b) elicit all necessary information from the prisoner of war in order to be efficient and effective; and (c) expedite the delivery of the card. This model is not compulsory, but the card must be similar. While some of the information is necessary (name(s), date and place of birth, and rank), a prisoner of war is not required to complete all fields on the card. Indeed, Article 70 gciii itself enables a prisoner of war to complete and send a capture card, it does not impose an obligation, and a prisoner of war may decline to do so. The detaining power is, however, obliged to make capture cards available, and to send them once completed. The model capture card annexed to gciii reflects that it must be completed by each prisoner of war upon capture and each time his address is changed (by reason of transfer to a hospital or to another camp). The icrc maintains that a detaining power may furthermore be obliged to enable prisoners of war to complete new cards in cases of ill health. The entitlement to complete and send a capture card is without prejudice to a prisoner of war’s entitlement to send and receive letters and cards in accordance with Article 71 gciii. However, limitations may be imposed on the latter category [see: Internment; Deprivation of Liberty, Treatment]. The purpose of the capture card is illustrated by the icrc’s 1983 Memorandum to the belligerents of the Iran-Iraq War, in which the icrc referred to the capture card system as “[o]ne of the essential provisions” of gciii, and noted that it had “registered only 30,000 prisoners of war, leaving 15,000 to 20,000 families in the agony of uncertainty, which is precisely what the imperative provisions of the Conventions are designed to avoid” (emphasis added). Chris Black – the views expressed are those of the author alone and do not necessarily reflect the views of the Special Tribunal for Lebanon Bibliography

icrc, Memorandum from the International Committee of the Red Cross to the States Parties to the Geneva Conventions of August 12, 1949 concerning the Conflict ­between Islamic Republic of Iran and Republic of Iraq (1983). S. Weil, ‘Relations with the Outside World’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).

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Casualties, Search for. Under ihl, the expression “search for casualties” ­refers to the obligation to look for those members of the armed forces who are wounded, sick, or dead [see: Wounded and Sick; Dead Persons]. The duty to collect the wounded and sick can be traced back to Article 6(1) of the 1864 Geneva Convention, which was expanded upon in the 1906, 1929 and 1949 Geneva Conventions. It was then adapted to maritime warfare in 1899, by virtue of the Hague Convention (iii), which was superseded in 1907 by Article 25 of the Hague Convention x [2016 icrc Commentary gci, para. 1479]. The obligation to search for casualties is now contained in Article 15 gci, which reinforces the provision of Article 12 gci (stating the general obligation to protect the sick and wounded under all circumstances). According to the norm, “[a]t all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled”. Similar obligations can be found in Article 18 gcii, Articles 16 and 17 gciv, Article 10 api, and Article 8 apii [see also: rules 109–113 icrc Customary ihl Study]. Article 15(1) gci imposes an obligation to take steps “particularly after an engagement”, i.e. after any kind of combat activity that may result in persons being wounded, sick, or killed. The measures to be taken must be reasonable in consideration of the circumstances (e.g. security issues and availability of medical personnel). This holds especially true during engagement. This is why Article 15 gci states that one has to act without delay, that is, as soon as the circumstances permit to do so. Like Article 12 gci, Article 15 gci applies only during international armed conflict and only to the wounded and sick (and dead) who are members of the armed forces or otherwise entitled to prisoner-of-war status. However, the ­obligation to search for and collect the wounded and sick, including civilians, is now considered to be part of customary ihl, applicable in both international and non-international armed conflict [rule 109 icrc Customary ihl Study; for a different view, see: J.P. Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, 11 yihl (2008)]. The same holds true for the duty to search for, collect and evacuate the dead, to prevent them from being despoiled, and to dispose of them in a ­respectful manner [2016 icrc Commentary gci, paras. 1477–1478]. This specific obligation was first codified in Common Article 3 GCs and then extended with ­Article 8 apii. It is now considered to be part of customary ihl, applicable in both international and non-international armed conflicts [rules 112, 113, 115

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icrc Customary ihl Study]. This rule applies without adverse distinction, i.e. regardless to which party the dead belong and whether they have taken a direct part in hostilities or not. The application of this rule can be extended to civilians on the basis of Article 16 gciv – which applies to the whole of the populations of the countries in conflict – and Article 8 apii, which does not specify any distinction [rule 112 icrc Customary IH Study]. It is worth mentioning that the duty to search for casualties applies during the entire armed conflict. According to the jurisprudence of the icj on the application of the Genocide Convention, this duty arises at the instant that the State learns of, or should normally have learned of, the existence of a serious risk [Judgment, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj, para. 431]. Lastly, the responsibility to search lies with the parties to the conflict, which in turn delegate its execution to the armed forces. Those lacking the means to evacuate the wounded and sick should rely on external help, for instance on impartial humanitarian organisations, like the icrc [2016 icrc Commentary gci, paras 1486–1491; see: International Committee of the Red Cross]. Roberta Arnold – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.P. Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, 11 yihl (2008).

Central Tracing Agency. The Central Tracing Agency (cta) is a Geneva-based division of the icrc, established to collect information with respect to prisoners of war and interned civilian persons, and to transmit it to their country of origin [see: Prisoners of War; Civilians; Deprivation of Liberty]. The cta also acts as a technical adviser to governments and the National Red Cross and Red Crescent Societies (National Societies) on matters pertaining to restoring family links [icrc, Resolution 16, 25th International Conference of the Red Cross (1986); see: Missing Persons; International Red Cross and Red Crescent Movement]. The cta was founded in Basel pursuant to a resolution adopted at the B ­ erlin Conference of 1869. However, neither the creation nor the mandate of the cta was based on any rule of international law [G. Djurović, The Central Tracing Agency of the icrc: Activities of the icrc for the Alleviation of the Mental Suffering of War Victims (1986), p. 27]. Subsequently, the cta assisted war

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v­ ictims in various conflicts, such as the Russo-Turkish war (1877), the Balkan wars (1912–1913), and World War i (1914–1918), at times exceeding its mandate by not only assisting civilians and the wounded and sick, but also the ablebodied [Djurović, pp. 33, 35, 54, 245]. The 1929 Geneva Convention on Prisoners of War provided a legal basis for a “Central Agency of information”, but only in relation to Prisoners of War and not civilians [art. 79]. As soon as World War ii erupted, the Central Prisoners of War Agency, the predecessor of the current cta, officially opened. It was set up on the basis of the 1929 Convention to relieve victims’ mental distress and, although it lacked a solid legal ground for its activities on behalf of civilians, it provided assistance in this regard as well. The 1949 GCs created the long-awaited legal framework. First, it was stated that the creation of a cta is obligatory in armed conflict, regardless of the participation of the icrc [art. 123 gciii; art. 140 gciv]. This implicitly means that, as a matter of law, belligerents are free to turn down the offer of the icrc, provided that a substitute agency is created in a neutral country. In practice, however, the icrc has always carried out this role, given its unique experience [Djurović, p. 2]. Additionally, unlike the previous Geneva Conventions, the Agency’s assistance to civilians was recognized for the first time. The GCs further improved the regulations of the 1929 Convention concerning the Agency’s services pertaining to prisoners of war. In 1960, however, the Agency adopted its current name, the cta. This change indicated that the organization also took account of new categories of persons, such as the victims of armed conflicts of non-international character, as well as those of natural disasters [icrc, icrc Central Tracing Agency: Half a Century of Restoring Family Links (2010)]. The cta found itself also involved in activities in relation to internal disturbances and tensions that are not covered by ihl [see: Internal Disturbances and Tensions]. In such extra-conventional situations, the cta may still offer its services, grounded on the icrc’s right of humanitarian initiative and its position as a neutral intermediary actor [common art. 3(2) GCs; see: International Committee of the Red Cross]. Yet, the consent of States is indispensable in such situations. Today, the cta, as a department of the icrc, is accorded permanent status in api [arts. 33(3), 78(3) api]. It performs various activities, with the assistance of the National Societies. For instance, people who are uncertain about the fate of their relatives due to a situation of emergency may file a tracing request. Once they have been found, the cta helps separated family members collect the necessary documentation for traveling so that they may be reunited [F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2013), p. 39]. Finally, it should be noted that the success of cta is in large part due to a distinctive rule of conduct of the icrc: discretion. Since day one, the Agency

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has made it clear that the information it handles is only accessible to the victims and their families. What is more, in cases where such transmission might be detrimental to the persons concerned, no information is passed on at all. This rule is particularly significant in the event of non-international conflict or internal disturbances and tensions [Djurović, p. 247]. Omar Mekky – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2013). G. Djurović, The Central Tracing Agency of the icrc (1986). icrc, icrc Central Tracing Agency: Half a Century of Restoring Family Links (2010). icrc, History of the Central Tracing Agency of the icrc (2002).

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

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asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” falling under the jurisdiction of the icc [rules 74, 156 icrc Customary ihl Study; arts. 8(2)(b)(xviii) and (e)(xiv) ICC Statute]. Some use of chemical agents by the State outside the conduct of hostilities in an armed conflict may, however, be lawful. Thus, the cwc explicitly prohibits use of riot control agents as a method of warfare [art. I(5) cwc], but allows chemical agents to be used in law enforcement, including for domestic riot control purposes [art. II(9)(d) cwc], “as long as the types and quantities are consistent with such purposes” [art. II(1)(a) cwc]. When these Convention rules are respected, riot control agents are not to be considered chemical weapons. Chemical weapons are identified in the Convention as “toxic chemicals”, which are defined as: “[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” and which “includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere” [art. II(2) cwc]. As the Organisation for the Prohibition of Chemical Weapons (opcw) notes, the toxic chemicals that have been used as chemical weapons, or have been developed for use as chemical weapons, can be categorised as choking, blister, blood, or nerve agents. The most widely known agents are as follows: choking agents – chlorine and phosgene, blister agents (or vesicants) – ­mustard and lewisite, blood agents – hydrogen cyanide, nerve agents – sarin, soman, vx [opcw, Brief Description of Chemical Weapons]. As part of the disarmament obligations under the Convention, States parties are required to destroy all chemical weapons they own or possess, or which are located in any place under their jurisdiction or control, or which they abandoned on the territory of another State party [arts. I(2)-(3) cwc]. Under the terms of the Convention, all States parties were required to have destroyed all of their stockpiles of chemical weapons by 2007 or, for those granted extensions, no later than 2012. The United States failed to meet this deadline, having destroyed only 90% of its total stockpile by April 2012. In March 2015, it began destroying 2,611 tons of World War ii-era mustard agent in southern Colorado, its largest remaining stockpile of chemical weapons. A year later, it was projected that destruction would be completed by the summer of 2020. The work was being conducted with the help of remotely controlled robots. Russia, too, failed to meet its final treaty deadline for stockpile destruction. In late October 2017, however, it announced that it had completed destruction. Responsibility for oversight of the implementation of the Convention was given to the opcw, specially created for the purpose. Despite the opcw’s ­involvement in Syria, though, following that State’s accession to the cwc in

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October 2013, chemical weapons have been used on many occasions during the different armed conflicts that were ongoing as of writing. In March 2016, it was claimed that some 1500 people had been killed by chemical attacks during the five years of armed conflict. The report by the Syrian-American Medical Society documented 161 chemical attacks in Syria on the basis of testimony from doctors operating in the areas that had borne the brunt of chemical attacks, leading to the deaths of 1491 people and injuries to 14581 others. More than a third of the attacks used chlorine gas [K. Shaheen, Almost 1,500 Killed in Chemical Weapons Attacks in Syria, The Guardian (2016)]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W. Krutzsch, E. Myjer, R. Trapp, The Chemical Weapons Convention: A Commentary, (2014).

Child Soldiers. Child soldiers is a generic term without any legal definition. Various provisions of treaty and customary international law prohibit the recruitment of children and/or their use in hostilities by parties to international armed conflict and non-international armed conflict. The prohibition is complex, as these provisions refer to different standards and even (in one case) distinguish between States and armed groups. Age restrictions range from 15 to 18 years and, along with other standards, vary depending on the applicable instrument, the type of entity (State or non-State), and/or the form of liability (entity or individual). A number of related international policy instruments also exist. Generally, standards are more stringent in non-international armed conflict than international armed conflict, and for armed groups than States. Neither the 1949 GCs nor their predecessors address child soldiering. The first prohibition appears in the 1977 APs [art. 77(2) api; art. 4(3)(c) apii]. Then, in a partially successful attempt to raise the age standard, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (opac) was adopted in 2000 [see: Convention on the Rights of the Child (1989) and its Protocols]. Furthermore, international criminal liability is codified under the Rome Statute [art. 8(b)(xxvi), 8(e)(vii) icc Statute]. The age standard of 15 applies under both APs and the Rome Statute. The opac employs a differentiated system wherein armed groups [see: Armed Groups] are addressed separately from States and subjected to an absolute age limit of 18 years [art. 4 opac]. For States, age limits depend on the prohibited

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act. The age limit for direct participation in hostilities by members of a State’s armed forces and compulsory recruitment is 18 years [art. 1 opac]. For voluntary recruitment, State parties must raise the minimum age of recruitment beyond 15, and deposit a binding declaration stating its minimum age [art. 3 opac]. This has generally been interpreted as a minimum age of voluntary recruitment at 16. According to the icrc, while there is no uniform State practice on minimum age for recruitment and use of children, it is at least 15 years of age [rules 136, 137 icrc Customary ihl Study]. The scope of the prohibition on use of children in hostilities also varies from use [art. 4 opac (regarding armed groups)] to participation [4(3)(c) apii; rules 136, 137 icrc Customary ihl Study], to direct participation [77(2) api, art. 1 opac (regarding States)] to active participation [art. 8(b)(xxvi), 8(e)(vii) icc Statute]. Some commentators have been concerned that a wide interpretation of the scope of the prohibition may lead to an equally wide interpretation of what constitutes direct/active participation in hostilities for targeting purposes [see: Direct Participation in Hostilities]. The unintended consequence would be that, while more children are protected against use in hostilities, they are then by definition also legitimate military objectives. A solution, as applied by the icc with respect to “active participation”, is to recognize that these are two distinct determinations even though the terminology may be effectively the same. The icc Appeals Chamber in Lubanga abandoned the risk-based definition of the trial court, where the determining factor was whether the support provided by the child “exposed him or her to real danger as a potential target” [Judgment, Lubanga, icc, Trial Chamber i (2012), para. 628]. Rather, the Appeals Chamber found that active participation requires a link between the activity and the hostilities, and should be determined on a case by case basis, guided by examples enumerated in the icrc Commentaries to the APs, and the Preparatory Committee’s Draft Statute [Judgment, Lubanga, icc, Appeals Chamber (2014), paras. 333–335]. The prohibition on recruitment covers both formal and informal initiation, the latter being particularly relevant to non-State parties that do not have formal mechanisms of recruitment. Prohibited recruitment need not only be for participation in hostilities, but it does require a link to military activity, such that “recruitment’ into political or humanitarian wings of an armed group as such would not be proscribed [Child Soldiers International, A Law unto Themselves? Confronting the Recruitment of Children by Armed Groups (2016), p. 13]. As such, armed forces or groups that claim to be merely protecting children who come to them, in the absence of other options, may comply with international standards by ensuring such children are not linked to ­military activities. In most cases, both voluntary and forced recruitment is p ­ rohibited (noting that many question the notion of volition in such circumstances).

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However, as seen above, a State party to opac (as opposed to armed groups) may voluntarily recruit children above the age of its declaration, conditioned on a number of safeguards [art. 3(2), 3(3) opac]. Furthermore, State parties to Convention 182 of the International Labour Organization (ilo) must secure the prohibition and elimination of forced recruitment of persons under 18 for use in armed conflict [art. 3(a) ilo Convention 182]. While the Rome Statute uses the terms conscripting and enlisting, these have been interpreted as equivalent to recruitment, which is used in most other instruments [Lubanga (2012), para. 607]. There are also differences in the duty of care. In international armed conflict, States must only take “feasible measures” to ensure that children do not take a direct part in hostilities [art. 77(2) api], while armed groups must not use children under any circumstances [art. 4(3)(c) apii]. Yet this also compares apples and oranges, as in some instruments the restriction is on use by own forces, while others create a duty to care regardless of affiliation of the child. Despite its advances in child protection, several criticisms have been levelled at the opac. First, many of those who advocated the need for a new instrument were dissatisfied that a straight -18 prohibition was not adopted across the board. Second, while the opac is not an ihl instrument, it nevertheless runs contrary to the established principle of equality of belligerents [see: Belligerents, Equality of]. At least one armed group has criticized and rejected the opac for its bias [art. iv ndfp Declaration and Program of Action for the Rights, Protection and Welfare of Children]. Third, there is controversy as to whether it creates legal obligations on armed groups, although the International Commission of Inquiry on Syria has applied the opac standard to armed groups based on Syria being party to it [Child Soldiers International, p. 9] Children who are members of State or non-State armed forces, or who participate directly in hostilities, may be targeted according to the rules of ihl [see: Combatants]. Once captured, children must be treated humanely and additionally as prisoners of war, if they qualify as such [see: Prisoners of War]. The death penalty may not be pronounced on a person for an act committed while under the age of 18 [art. 77(5) api; art. 6(4) apii]. While child soldiers may commit international crimes, the icc does not have jurisdiction over persons under 18 years [art. 26 icc Statute]. Recent commentary and jurisprudence indicates that child members of armed forces and groups should be ­protected against ihl violations of their own troops, particularly with respect to sexual violence [2016 icrc Commentary gci, para. 547; Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s ­Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9”, Ntaganda, icc, Appeals Chamber].

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Beyond the legal prohibitions, policy instruments have been adopted by the international community. The 2007 Paris Principles and Guidelines on Children Associated with Armed Forces and Armed Groups (replacing the 1997 Capetown Principles) distinguish between unlawful recruitment and children associated with armed forces and armed groups (cafaag), with the latter ­referring to the category of persons under 18 years that should be eligible for assistance. It is therefore not surprising that this definition goes beyond the international legal prohibition to include the notion of association, encompassing a range of activities broader than use in hostilities, such as cooking and sexual use. However, the cafaag definition is often conflated with that of the legal prohibition. The unsc has included recruiting and using of children in armed forces or groups as one of its six grave violations against children [unsc Resolution 1261 (1999)]. Through its Monitoring and Reporting Mechanism (mrm), these ­violations can trigger listing of violating parties on what the UN has referred to as the “list of shame”. While the series of unsc Resolutions refer to “the ­international law obligations applicable to [the party to the conflict]”, the mrm rather applies the caafag definition [Office of the Special Representative of the Secretary-General for Children and Armed Conflict (osrsg-caac), ­u nicef and dpko, mrm on Grave Violations against Children in Situations of Armed Conflict – Field Manual (2014), Section D]. In 2017, The Canadian Armed Forces issued a Joint Doctrine Note on Child Soldiers, billed as a precedent in specifically addressing the unique challenges faced by military members confronted by child soldiers while deployed on operations [Canadian Armed Forces, Joint Doctrine Note 2017-01]. The doctrine gives direction on, inter alia, mrm reporting, child detainee handling, and encountering child soldiers. In the latter case, while the doctrine includes “clear direction that when child soldiers are armed and presenting a valid threat, caf personnel may be authorized to engage against them”, it also states that caf personnel should seek to de-escalate confrontations with child soldiers to the extent consistent with rules of engagement and the need for self-defence. The doctrine also prioritises pre-deployment training and professional education. Jonathan Somer – the views expressed are those of the author alone and do not necessarily reflect the views of the Canadian Red Cross or any other institution the author is affiliated with Bibliography

Child Soldiers International, A Law unto Themselves? Confronting the Recruitment of Children by Armed Groups (2016). M. Happold, Child Soldiers in International Law (2005).

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T. Vandewiele, A Commentary on the United Nations Convention on the Rights of the Child – Optional Protocol: The Involvement of Children in Armed Conflict (2006).

Children. Children face severe risks associated with armed conflicts. They are exposed to physical harm and psychological trauma like adults and, because of their vulnerability, children are also comparatively even more affected by war than adults. In some situations, children may be preyed upon for recruitment or use by armed forces or groups. The colossal suffering of children in armed conflict is in striking contrast to the theoretical protection given to them under ihl: indeed, in addition to being protected as civilians [see: Civilians], they also benefit from special protection as children. 1. The Protection of Children during Armed Conflicts All the rights granted to children by the Convention on the Rights of the Child (crc) [see: Convention on the Rights of the Child (1989) and its Protocols] and other international human rights treaties continue to apply in war. In particular, it stipulates that States parties must “take all feasible measures to ­ensure protection and care of children who are affected by an armed conflict”, according to their obligations under ihl [art. 38(4) crc]. In addition, both ihl treaties and customary ihl protect children in all conflicts, whether they are international or non-international. gciv requires special protection for children in international armed conflict, notably with respect to the provision of food, clothing and tonics, and education; care of children who are orphaned or separated from their families; treatment during deprivation of liberty; the distribution of relief consignments; the exemption from the death penalty, and the evacuation of children from besieged and encircled areas [arts. 17, 23–26, 38, 49, 50–51, 68, 76, 82, 85, 89, 94, 119, 132 gciv; art. 77(5) api; art. 6(4) apii]. Article 14 gciv specifically foresees the creation of safety zones and localities to protect children under the age of 15 from the effects of war, underlining the particular emphasis of ihl on the protection of children from the effects of attacks [see: Specially Protected Zones]. api states that children should be provided with respect, care, and the aid they require, including relief, education, protection from assault and recruitment into armed forces, family reunification, and the exemption from the death penalty [arts. 70, 74, 76, 77 api]. It also specifically regulates the evacuation of children, providing that children can only be evacuated by their own nationals and with the written consent of their caretakers, and that they should be provided with identification cards and education during their relocation [art. 78 api; see: Evacuation].

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In non-international armed conflicts, apii guarantees that children shall be provided with the care and aid they require, including education, family reunification, evacuation, and protection from recruitment by armed forces and from the death penalty [arts. 4(3), 6(4) apii]. As per Rule 135 icrc Customary ihl Study, State practice establishes that “children affected by armed conflict are entitled to special respect and protection” in both international and non-international armed conflicts. According to the icrc, State practice indicates that this special respect and protection extend, in particular, to: protection against sexual violence; access to education, food and health care; evacuation from areas of combat for safety reasons; and reunification of unaccompanied children with their families. Rules 55, 80, 93–94, 105, 117, 120, 131, 136–137 icrc Customary ihl Study directly concern children and cover a wide range of issues, including rapid and unimpeded passage of humanitarian aid to children [see: Humanitarian Relief]; prohibition of booby-traps [see: Booby-Traps]; protection from sexual violence [see: Rape and Sexual Violence], slavery [see: Slavery], recruitment into armed forces; and guarantees of family reunification and unity. Children’s education is also particularly protected [see: Education]. 2. Children and Participation in Hostilities Recruiting children or using them to participate in hostilities is prohibited and criminalized under international law [art. 77(2) api; art. 4(3)(c) apii; see; Child Soldiers]. The ihl provisions were reiterated in the crc and reinforced by the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (opac): using non-binding language, its Articles 1–2 seek to have States raise the minimum age for participation in hostilities and for compulsory recruitment to 18. The prohibitions of child recruitment into armed forces or armed groups, and of participation of children in hostilities are also deemed to be norms of customary ihl, applicable in both international and non-international armed conflicts [rules 136, 137 icrc Customary ihl Study]. The recruitment and use of children in hostilities is not only prohibited by international law, but also criminalized notably under the icc Statute, according to which conscripting or enlisting children under 15 into armed forces or groups or using them to participate actively in hostilities ­constitutes a war crime in both international and non-international armed conflicts [art. 8(2)(b)(xxvi), 8(2)(e)(vii) icc Statute]. The icc, following the jurisprudence of the scsl, has notably helped clarify the difference between conscription and enlistment, and the meaning of “active participation in hostilities”.

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3. Detention of Children during Armed Conflicts ihl offers a number of special protections to children detained during conflict [see: Deprivation of Liberty, Treatment]. api prescribes that, when arrested, detained, or interned for reasons related to the armed conflict, children should be held in the same place and accommodated as family units [art. 75(5) api], while those not accompanied by their families should be held in quarters separate from adults [art. 77(4) api]. These special protections apply to children under 15 who take direct part in hostilities, whether or not they are considered to be prisoners of war [art. 77(3) api; see: Prisoners or War]. gciv requires, inter alia, that child internees be lodged together with members of the same family, with some exceptions, and be provided with suitable sleeping quarters and bedding, additional food, schooling, and playgrounds [arts. 82(2)-(3), 85(2), 89(5), 94(2)-(3) gciv]. The age of a child internee must also be taken into account while applying disciplinary penalties to internees [art. 119(2) gciv]. apii also provides minimum guarantees by prescribing that children shall be provided with the care and aid they require, including education, family reunification, evacuation, and protection from recruitment by armed forces and from the death penalty. These guarantees also apply when children are deprived of their liberty, including those who have been taking a direct part in hostilities [arts. 4(3), 6(4) apii]. State practice compiled under Rules 120 and 135 icrc Customary ihl Study indicates that children deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. Last but not least, it is important to note that the ihrl protections provided by the crc continue to apply during armed conflict, and that detaining children therefore remains a measure of last resort [art. 37(b) crc]. Cécile Aptel – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations High Commissioner for Human Rights or any other institution the author is affiliated with Bibliography

C. Aptel, The Protection of Children in Armed Conflicts, International ­Children’s Right Law (2018). icrc, Legal Protection of Children in Armed Conflict (2003). J. Kuper, International law concerning Child Civilians in Armed Conflict (1997). G. Maquel, The Impact of War on Children: A Review of Progress since the 1996 United Nations Report on the Impact of Armed Conflict on Children (2001). A.-C. Nilsson, Children and Youth in Armed Conflict (2013).

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

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Bibliography

H.-P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck, M. Bothe (eds.), The Handbook of International Humanitarian Law (2008), pp. 263–268. S. Jeannet (ed.), Civil Defence 1977–1997 – from Law to Practice (1997).

Civil War; see: Non-International Armed Conflict Civilian Objects. In keeping with the fundamental principle of distinction, military attacks may not be directed against civilian objects [see: Distinction; Indiscriminate Attacks; see: Protected Objects]. As is the case with the definition of civilians [see: Civilians], ihl defines civilian objects in the negative: a civilian object is any object that is not a military objective [see: Military Objectives]. Special care must be taken to protect certain categories of civilian objects, notably places of worship, civilian hospitals, schools and historic monuments, though the singling out of these objects is largely symbolic or has historical reasons [see: Hostilities, Conduct of; Attacks against Historic Monuments, Works of Art or Places of Worship; Hospitals]. If civilian objects are likely to be damaged as a result of an attack that is directed against a military objective (so-called “collateral damage”), the principle of proportionality has to be respected [art. 57(2) api; see: Proportionality]. A civilian object loses its protection if, and for as long as, it has become a military objective – namely because it is being used for military action or purposes. Whether a civilian object has lost its protection is a fact-sensitive assessment. Nevertheless, according to Article 52(3) api, in case of doubt, objects that are normally dedicated to civilian purposes shall be presumed not to have lost their protection. Intentionally directing attacks against civilian objects is a war crime under Article 8(2)(b)(ii) icc Statute, although only in the context of international armed conflicts and not in non-international armed conflicts. Also, only in the context of international armed conflicts, it is a war crime under Article 8(2)(b) (iv) icc Statute to launch an attack in the knowledge that it will lead to clearly excessive incidental damage to, inter alia, civilian objects. In this regard, the icc Statute arguably lags behind the current status of customary law. By contrast, intentionally directing attacks against “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected” amounts to a war crime in both international and non-international armed conflict [art. 8(2)(b)(ix), (e)(iv) icc Statute].

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Volker Nerlich – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court or any other institution the author is affiliated with Bibliography

Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 139–163. M. Sassòli, L. Cameron, ‘The Protection of Civilian Objects. Current State of the Law and Issues de Lege Ferenda’, in N. Ronzitti, G. Venturini (eds.), Current Issues in the International Humanitarian Law of Air Warfare (2005). C. Wuerzner, ‘Mission Impossible? Bringing Charges for the Crime of Attacking ­Civilians or Civilian Objects before International Criminal Tribunals’, 90(872) irrc (2008).

Civilian Population. According to Article 50(2) api, the “civilian population comprises all civilians” [also: rule 5 icrc Customary ihl Study]. Thus, the term is closely linked to one of the central concepts of ihl, that of civilians [see: Civilians]. The expression civilian population refers to a collective of individuals. The relevant legal instruments of ihl contain specific obligations that the warring parties have to respect vis-à-vis civilian populations: Part iv of api and Part ii of apii contain a set of rules for the protection of the civilian population. Similarly, Part ii of gciv contains rules for the protection of the “populations of the countries in conflict” [art. 13 gciv]. The collective character of a civilian population leads to a potential challenge: how to address situations in which, among the civilian population, there  are individuals who do not qualify as civilians, for instance soldiers on home leave. Article 50(3) api provides in this regard that “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”. As a result, individual non-civilians may exceptionally be protected by the rules regarding the protection of the civilian population, even though they do not have civilian status. Nevertheless, should the number of soldiers within a civilian population be significant, they may be considered separately as a military objective that may be made the object of an attack [see: Combatants; Military Objectives]. Whether this is the case requires a fact-sensitive assessment. Volker Nerlich – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court or any other ­institution the author is affiliated with

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Bibliography

K. Watkin, ‘The Notion of Combatant, Armed Group, Civilians and Civilian Population in International Armed Conflicts’, in G.L. Beruto (ed.), The Conduct of Hostilities. Revisiting the Law of Armed Conflict: 100 Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocols (2008).

Civilians. The principle of distinction lies at the heart of modern ihl. As the only legitimate objective of warfare is the weakening of the opposing party’s military capacity, attacks may only be directed against combatants and other military objectives. Civilians, in contrast, are to be protected and may not be made the object of an attack, unless they directly participate in hostilities [see: Distinction; Military Objectives; Direct Participation in Hostilities]. The principal instruments of present-day ihl afford civilians special protection and rights that go beyond those afforded to members of armed forces. As a result, determining who is, or is not, a civilian is of pivotal practical and legal importance. Civilian status is often juxtaposed against combatant status. This is, however, not entirely precise: combatants are, in principle, members of an armed force who are entitled to participate directly in hostilities [see: Combatants]. Nevertheless, there are also members of armed forces, notably medical and religious personnel, who do not have combatant status, yet are not considered civilians either [see: Medical Personnel; Religious Personnel]. Generally, the determining factor for whether or not an individual has civilian status is lack of membership in an armed force and not lack of combatant status: as put by the jurisprudence of the icty, civilians are “persons who are not, or no longer members of the armed forces” [Judgment, Blaškić, icty, Trial Chamber, para. 180; also: rule 5 icrc Customary ihl Study]. However, participants in a levée en masse (i.e. “[i]nhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war”) are not considered members of the armed forces but are nonetheless not entitled to the status of civilians [art. 4(a)(6) gciii]. Article 50(1) api also contains a negative definition of civilian status: broadly speaking, a civilian is anyone who does not fall under the definition of protected persons under Article 4 gciii (and is therefore entitled to prisoner of war status) or that of members of armed forces under Article 43 api. Article 50(2) api stipulates that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian” until further information is ­available

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and, accordingly, should not be made object of attack [1987 icrc Commentary api, para. 1920]. Similarly, but slightly more restrictively, Article 4(1) gciv defines as protected persons, in terms of this convention, individuals who are not p ­ rotected under any of the other three Conventions and who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” [see: Protected Persons]. It must be underlined, however, that status as a civilian and status as a protected person under gciv are not entirely identical: while it is safe to say that all those who have protected person status under this instrument are civilians, the opposite is not true. This is because, as seen above, Article 4(1) gciv stipulates that the individuals in question must find themselves in the hands of the enemy. Civilians who are not in the hands of the enemy therefore do not qualify as protected persons under gciv, even though they enjoy certain protections under ihl. Although conventional definitions of the term civilian exist only in respect of international armed conflicts, the concept and the fundamental principle of distinction are applicable to non-international armed conflicts as well. The term civilian is used in, for example, apii [arts. 13, 14, 15, 17, 18 apii]. Also in non-international armed conflicts, civilians generally are defined as individuals who are not members of an armed group. Questions arise, however, as far as membership in non-State armed groups is concerned. The fundamental protection of civilians, namely not to be made the object of an attack, ceases to exist when the individuals concerned are no longer passive by-standers to the conflict. If civilians directly participate in hostilities, the protections under ihl resulting from their civilian status no longer apply [see: Direct Participation in Hostilities]. Volker Nerlich – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court or any other institution the author is affiliated with Bibliography

E. Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (2015). C. Garbett, The Concept of the Civilian: Legal Recognition, Adjudication and the Trials of International Criminal Justice (2015). F. Kalshoven, ‘Civilian Immunity and the Principle of Distinction: Introduction’, 31(4) Am. U. L. Rev. (1982), pp. 855–859. I. Primoratz, Civilian Immunity in War (2007). R. Schütte, Civilian Protection in Armed Conflicts: Evolution, Challenges and Implementation (2015).

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A. Van Engeland-Nourai, Civilian or Combatant?: A Challenge for the Twenty-First Century (2011).

Cluster Munitions; see: Convention on Cluster Munitions (2008) Coastal Rescue Craft. Article 27 gcii provides that “[u]nder the same conditions as those provided for in Articles 22 [notification and protection of military hospital ships] and 24 [hospital ships utilised by relief societies and private individuals of parties to the conflict], small craft employed by the State or by the officially recognized lifeboat institutions for coastal rescue operations, shall also be respected and protected, so far as operational requirements permit […]”. The effect of this provision is that coastal rescue craft are accorded similar (but not in every respect identical) ihl protections and obligations as hospital ships [see: Hospital Ships]. An example of expressly correlative rights and obligations is found in Articles 30–32 gcii, relating to, inter alia, the stay of hospital ships in neutral ports and their liability to the right of control and search, which apply equally to coastal rescue craft. Other rights and obligations applicable to hospital ships also apply to coastal rescue craft, albeit with some nuances and, in some instances, as an implication drawn from interpretation of the treaty text, rather than express words. One example is the cumulative conditions that must be met before a coastal rescue craft loses its protection [2017 icrc Commentary gcii, paras. 2372, 2384]. On the other hand, one example of a hospital ship ­obligation that does not apply to coastal rescue craft is the prohibition, contained in Article 34 gcii, on hospital ships employing “secret code for their wireless or other means of communication” [2017 icrc Commentary gcii, para. 2390]. Robert McLaughlin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Code of Conduct; see: Military Manuals; Armed Groups Collateral Damage; see: Proportionality; Distinction; Civilian Objects; Indiscriminate Attacks Collective Punishment. Collective punishment is a form of sanction imposed on persons or a group of persons in response to a crime committed by one of them [P. Rabbat, S. Mehring, ‘Collective Punishment’, in R. Wolfrum (ed.), Max

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Planck Encyclopedia of Public International Law (2015)]. Because ­conventional ihl neither defines what a collective punishment is nor provides examples of such punishment, the range of measures that could be encompassed by this notion is not subject to a unanimous agreement. It may comprise, inter alia, property destruction, murder of civilians, detention, prolonged curfews, and inhuman treatment. The prohibition of collective punishment has been included in different provisions. Article 50 of the 1907 Hague Regulations provides that “[n]o general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible”. As may be noticed, this definition did not exclude the possibility of collective sanctions for individual acts for which populations might be considered collectively responsible. In order to remove any uncertainty, Article 33(1) gciv prohibits collective penalties and affirms that “[n]o protected person may be punished for an offence he or she has not personally committed”. The prohibition of collective punishment is also found in gciii in relation to prisoners of war [arts. 26(6), 87(3) gciii] and the APs [art. 75(2) (d), (4)(b) api; arts. 4(2)(b), 6(2)(b) apii]. Furthermore, according to the icrc, the rule against collective punishment attained customary international law status for both international and non-international armed conflicts [rule 103 icrc Customary ihl Study]. This prohibition was expressly excluded from violations considered to be grave breaches of the GCs [see: Grave Breaches] on the grounds that they “could be of varying degrees of gravity and would not be considered to be a grave breach if committed in their less serious form” [Fourth Report Drawn up by the Special Committee of the Joint Committee (1949), p. 118]. Nowadays, however, the Statutes of the ictr and the scsl contain the prohibition of collective punishment [art. 4(b) ictr Statute; art. 3(b) scsl Statute], although it has been omitted from the icc Statute. It may be noted that, considering the reality of contemporary armed conflicts, the lack of a specific definition of collective punishment and its exclusion as an international crime from the icc Statute may raise some concerns with respect to the future of criminal prosecutions of such conduct. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call Bibliography

S. Darcy, ‘The Prohibition of Collective Punishment’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). S. Darcy, ‘Prosecuting the War Crime of Collective Punishment’, 8 jicj (2010).

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P. Rabbat, S. Mehring, ‘Collective Punishment’, R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015).

Combatants. A combatant is, first and foremost, a member of the armed forces of a party to an international armed conflict [art. 13(1) gci; art. 13(1) gcii; art. 4(A)(1) gciii; see: Armed Forces], who must respect ihl, including the obligation to distinguish oneself from the civilian population [see: Distinction]. In addition, a member of another armed group that meets the further requirements of Article 4(A)(2) gciii or Articles 43–44 api is also a combatant. Those further requirements are the following: – Members of another armed group (militias and other volunteer corps, including organised resistance movements) belonging to a party to an international armed conflict, provided that they distinguish themselves from the civilian population, and: (i) are under responsible command; (ii) have a fixed distinctive sign; (iii) carry arms openly; and (iv) act in accordance with the laws and customs of war [art. 4(A)(2) gciii]. – Members of another armed group (i) that is under the responsible command of a party to an international armed conflict; (ii) that is subject to an internal disciplinary mechanism; and (iii) who respect, individually, the obligation to distinguish themselves from the civilian population in a manner consistent with api [arts. 43–44 api]. Distinction in a manner consistent with api means that, while combatants are obliged to distinguish themselves from the civilian population, api recognises situations in armed conflicts where, owing to the nature of the hostilities, combatants cannot always do so but nevertheless retain combatant status if, in such situations, they carry their arms openly. Unlike api, gciii itself does not use the term combatant, but it is now a customary norm applicable in international armed conflicts that “all members of the armed forces of a party to the conflict are combatants, except medical and religious personnel” [rule 3 icrc Customary ihl Study]. It should be borne in mind that medical and religious personnel in the armed forces are not considered as combatants, as long as they do not participate directly in hostilities [art. 33 gciii; art. 43(2) api; see: Religious Personnel; Medical Personnel]. Furthermore, it is important to stress that combatant status does not exist in non-international armed conflicts. While persons who participate directly in non-international armed conflicts are occasionally referred to as combatants, this practice should be avoided as it fails to uphold the legal rigour fundamental to the term.

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The most significant privilege arising out of combatant status is that combatants may participate directly in hostilities [art. 43(2) api; see: Direct Participation in Hostilities]. They may lawfully attack legitimate objectives, and may themselves be attacked as legitimate targets. A combatant’s function is irrelevant to his status as combatant: frontline combat troops and rear echelon cooks are, for instance, both combatants so long as they are members of the armed forces. Likewise, members of the armed forces, even when not actually fighting or on leave, remain combatants. Only when a combatant is demobilised and assumes civilian status, or is hors de combat [see: Attacks against ­Civilians and Persons Hors de Combat], is he no longer subject to lawful attack. A logical corollary is that a combatant cannot be prosecuted for direct participation in hostilities, although a combatant can be prosecuted for violations of ihl, but this does not necessarily entail loss of combatant status [art. 44(2) api]. Another important consequence of combatant status is that, upon falling into the power of the enemy or of an adverse party, a combatant is entitled to prisoner of war status, and enjoys the protections deriving from that status [see: Prisoners of War]. The primary obligation imposed on combatants is that they must respect ihl, and most notably the principle of distinction that infuses it. This principle recognises the legitimacy of participating in hostilities to weaken one’s adversary, but limits that legitimacy to those who distinguish themselves from civilians. Furthermore, it prohibits them from attacking civilians or civilian objects. Seemingly a simple subject, the term combatant has become the subject of some controversy following the proliferation and evolution of asymmetrical warfare in the twenty-first century [see: Asymmetric Warfare]. While the terms “unlawful combatant” and “unprivileged combatant” are alien to conventional and customary ihl, persons who directly participate in hostilities, without combatant status, have increasingly been referred to as “unlawful” combatants in both jurisprudence and State practice. There are diverging views as to the status of such persons. On the one hand, “unlawful combatants” are considered protected by gciv as civilians based on the plain wording of Article 50 api, which states that a “civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of [gciii] and in [art. 43 api]” and, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian” [see: Civilians]. On the other hand, those who do not fulfil the combatant criteria, but, nevertheless, participate directly in hostilities, are considered to belong to an undefined category that is deprived of the protections of the GCs and their APs, and may be detained without due process.

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Whilst it is undisputed that those participating directly in hostilities without being entitled to do so cannot assume prisoner of war status once they fall under the power of the enemy, determining the protections to which they are entitled, if any, nevertheless remains a highly debated issue. However, to suggest that “unlawful combatants”, to the extent that the term itself has meaning in ihl, are deprived of any/all protections would appear to be untenable. gciv may provide some measure of protection to “unlawful combatants” provided that they meet the requirements of its Article 4, notably with respect to nationality. Failing that, certain minimum guarantees do apply. First, Article 45(3) api explicitly states that “[a]ny person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with [gciv] shall have the right at all times to the protection of [art. 75 api]” [see: Fundamental Guarantees]. Furthermore, there is Common Article 3 GCs, which, as customary ihl, provides minimum protections to those affected by armed conflicts, both international and noninternational [see: Common Article 3]. There have been some important decisions by senior courts that illustrate some of the challenges that arise when attempting to elucidate the ihl applicable to alleged “unlawful combatants”. In the Hamdan case, the U.S. Supreme Court at least recognised that Common Article 3 GCs is applicable to “unlawful combatants”, as that term was used in that case. And, where Hamdan failed to recognise the customary status of Article 75 api, the Supreme Court of Israel did so in the Targeted Killings case, finding that nobody is beyond the protection of ihl, and that “unlawful combatants” are in fact civilians participating directly in hostilities, who thus lose their protections while so participating. Neither of these decisions can be considered declaratory of ihl of course; indeed, both contain disturbing weaknesses in their understanding and application of ihl. But they are indicative both of some rare State practice in this area, and of the difficulties in interpreting ihl in a manner that is faithful to its spirit in the context of modern asymmetrical conflict. Chris Black – the views expressed are those of the author alone and do not necessarily reflect the views of the Special Tribunal for Lebanon Bibliography

G. Aldrich, ‘The Taliban, Al Qaeda, and the Determination of Illegal Combatants’, 96(4) ajil (Oct. 2002). K. Dörmann, ‘The Legal Situation of Unlawful/Unprivileged Combatants’, 85 irrc 45 (2003). C. Garraway, ‘“Combatants” – Substance or Semantics?’, in M.N. Schmitt, J. Pejić (eds.), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein (2007).

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

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Second, a superior-subordinate relationship must have existed. Within a military structure, a superior may be located on every level of the chain of command. It neither has to be an immediate superior, nor the highest-level leader of command and the fact that there have been multiple superiors does not eliminate responsibility. Further, the relationship is not limited to military structures, but can also encompass “political leaders and other civilian superiors in positions of authority” [Čelebići (1998), para. 356; see also: Judgment, Akayesu, ictr, Trial Chamber, paras. 704–707]. The position as a superior may arise de jure (for example, as direct military commander) or de facto (for example, by way of effective control over the other person). Effective control can be defined as “having the material ability to prevent and punish the commission of the offences” [Čelebići (1998), para. 378]. The mere appointment as commander does not suffice. Third, the mens rea standard for command responsibility is that the superior knew or had reason to know that the criminal act was about to be or had been committed. The US Military Tribunal already established that “[c]riminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction” [High Command case, p. 543]. Strict liability by position of command was, thus, rejected. Rather, evidence of actual knowledge or a situation in which the superior had reason to know “in the circumstances at the time” [art. 86(2) api] is required. In cases where the superior had actual knowledge of acts being committed, proof can be established through circumstantial evidence, such as the number or type of unlawful acts, when and where these were committed, the perpetrators involved, or the location of the superior at the time of commission. More problematic is finding whether a superior had reason to know that unlawful acts were committed or, in terms of Article 28(a)(i) icc Statute, should have known. It is required that reliable, concrete, and relevant information was available to the superior from which he could have drawn the relevant conclusion but did not [Čelebići (1998), para. 393]. In differentiating between military and other superiors, Article 28(b)(i) icc Statute requires of civilian superiors that they must have “consciously disregarded information which clearly indicated the unlawful act”. However, the burden of proof for this becomes more exigent and it may be more difficult to prosecute civilian superiors. Fourth, upon acquiring knowledge that crimes were or were about to be committed by a subordinate, the superior must have failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator. Yet the two are not alternatives. The superior cannot evade responsibility for not preventing an unlawful act which he had knowledge of by subsequently punishing the perpetrator [Judgment, Blaškić, ICTY, Trial

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Chamber, para. 336]. A superior has a duty under ihl to intervene as soon as he or she learns that unlawful acts may be or have been committed by his or her subordinates. Subsequently, the superior has a duty to punish subordinate perpetrators of crimes and prevent the commission of further crimes. Measures of prevention are, inter alia, the provision of adequate training in ihl, the institution of an effective reporting system, the suspension of violent subordinates, the withdrawal of troops, or the postponement of military operations. In most military structures, measures to punish subordinates cannot be taken by the superior him- or herself. Rather, the superior will have to initiate the disciplinary process and ensure that his or her subordinate is reprimanded by authorities responsible for disciplinary measures or criminally prosecuted. This is explicitly foreseen in Article 28 icc Statute. Clearly, in order to be criminally responsible, the measures must be “within [the superior’s] power” [art. 86(2) api]. The superior must thus have the competence and material ability to take either measure. In this regard, in a landmark ruling, the ICC Appeals Chamber clarified that “the scope of the duty to take ‘all necessary and reasonable measures’ is intrinsically connected to the extent of a commander’s material ability” to intervene [Judgment, Bemba, ICC, Appeals Chamber, 2018, para. 167]. Indeed, according to the Chamber, a commander is not required to take “each and every possible measure at his or her disposal”, but only those measures that are necessary and reasonable under the specific circumstances of the case [Bemba (2018), para. 169]. Thus, in assessing command responsibility, it is not enough to juxtapose the fact that certain crimes were committed by the subordinates of a commander with a list of measures that the commander could hypothetically have taken; it must be specifically identified what the commander should have done in concreto, taking into account the operational realities on the ground [Bemba (2018), para. 170]. On this basis, the Appeals Chamber overturned a conviction imposed by the Trial Chamber, primarily considering that the latter had paid insufficient attention to the fact that the troops concerned were operating in a foreign country and, consequently, had failed to properly appreciate the attendant difficulties on the accused's ability, as a remote commander, to take measures [Bemba (2018), para. 171]. Fifth, Article 28 icc Statute adds a causal element in that a commander is responsible for crimes by his forces committed “as a result of his or her failure to exercise control properly”. An icc Trial Chamber rejected a strict “but for” causation even though the standard to be applied was not further elaborated on [Judgment, Bemba, icc, Trial Chamber, 2016, para. 213]. The required causal link, which was introduced as early as the High Command case, but subsequently omitted, could strengthen the focus on the individual’s culpability.

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3. Outlook The icc Statute introduced some changes to the customarily recognized concept which have re-opened discussion on aspects of command responsibility. It remains controversial whether command responsibility imposes criminal liability for a separate offence, namely an act of omission on the part of the superior who failed to intervene or punish [Judgment, Orić, icty, Trial Chamber, paras. 292–293; Judgment, Halilović, icty, Trial Chamber, para. 54], or whether it entails a, possibly sui generis, mode of criminal responsibility by which the superior is held responsible for the principal crime as committed by the subordinate [Čelebići (1998), para. 333]. The icc Statute declares a superior “responsible for crimes […] committed by subordinates” which could support the latter approach [Bemba (2016), paras. 173–174]. Moreover, through the introduction of a should-have-known standard in Article 28 icc Statute, the required mens rea for military commanders is l­ owered to a legal fiction. This form of liability by negligence had been rejected by literature and international tribunals since Yamashita [Judgment, Delalić et al. (“Čelebići”), icty, Appeals Chamber, 2001, paras. 238–240] and should not have been resurrected. On a practical level, the introduction of increasingly autonomous weapon systems poses new challenges to the concept [see: Autonomous Weapons]. Questions arise as to whether there actually is a person in command and what he or she can control and whether that person can actually step in to prevent international crimes. All elements of the concept may have to be re-evaluated. Sigrid Mehring, Federica Pira – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

K. Ambos, ‘Superior Responsibility’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002). G. Mettraux, The Law of Command Responsibility (2009). W.H. Parks, ‘Command Responsibility for War Crimes’, in 62 Mil. L. Rev. (1973).

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

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

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First of all, while contemporary inquiry and fact-finding mechanisms are not only tasked with clarifying events, but also with making legal assessments of the concerned facts, they may go beyond purely identifying violations of ihl and other bodies of law and may make in fact quite detailed determinations on points of international law, which, in some cases, has provided significant developments to the law. For instance, the Independent Commission of Inquiry on the Syrian Arab Republic engaged in detailed discussions on whether particular acts amounted to violations of ihl or ihrl [UN Human Rights Council, Report of the Independent Commission of Inquiry on the Syrian Arab Republic (2011), paras. 84–100]. Second, inquiry and fact-finding mechanisms may exercise discretion in deciding the relevant body of norms to be applied in the situations they are ­investigating. For instance, although the mandate of the Commission of Inquiry for Libya referred only to ihrl, this body interpreted its mandate to include ihl when the situation in these countries reached the level of non-international armed conflict [UN Human Rights Council, Report of the International Commission of Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya (2011)]. Similarly, specific aspects of the mandate, such as the inclusion of expressions as “crimes” or “identifying those responsible”, has also been interpreted in such a way to encompass international criminal law norms in the fact-finding work of many commissions. Third, and connected with the point above, inquiry and fact-finding mechanisms have progressively been tasked with mandates oriented, inter alia, towards criminal prosecution, by including for instance international criminal law as the applicable law or by explicitly providing these mechanisms with the task to identify individual perpetrators with a view to holding them accountable for their violations, including those that may amount to crimes against humanity and war crimes [e.g. UN Human Rights Council, Resolution S-17/1: Situation of Human Rights in the Syrian Arab Republic (2011), para. 13]. The tendency of fact-finding mechanisms to perform functions traditionally associated with more formal and permanent legal adjudicative bodies, as well as their orientation towards the further prosecution of war crimes and other serious crimes, like crimes against humanity and genocide, which may be committed in times of armed conflict, has not gone unnoticed, particularly due to some challenges arising from the process. As a result, there is an ongoing debate with regard to, inter alia, the role of fact-finding mechanisms in selecting and applying the law (e.g. specifically, about whether their activities eventually represent a new form of adjudication), their methodology and practices (e.g. relationship between ihl and international criminal law standards, such as

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the standard of proof), their relationships with other adjudicative bodies (e.g. collection and transfer of evidence and documentation), and ultimately how their progressive institutionalization may be reconciled within the contemporary international law framework. Valentina Cadelo – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

T. Boutruche, Selecting and Applying Legal Lenses in Monitoring, Reporting, and FactFinding Missions (2013). C. Henderson, ‘Commissions of Inquiry: Flexible Temporariness or Permanent Predictability?’, 45 Netherlands Yearbook of International Law (2014). F. Kalshoven, ‘The International Humanitarian Fact-Finding Commission: A Sleeping Beauty?’, 4 Humanitäres Völkerrecht (2002). ohchr, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law – Guidance and Practice (2015).

Common Article 1. Common Article 1 GCs provides that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. An identical provision is found in Articles 1(1) api and apiii. Although apii, regulating non-international armed conflicts, does not contain such a provision, it is possible to fashion such an obligation from Article 1(1) apii, which provides that apii “develops and supplements Article 3 common to the Geneva Conventions”. It is widely accepted that Common Article 1 GCs reflects customary international law [rule 139 icrc Customary ihl Study]. At a minimum, Common Article 1 GCs requires contracting parties to ensure that the humanitarian principles underpinning the GCs are applied. This provision is not merely hortatory or recognising discretionary powers. The phrase “to undertake”, on a plain meaning, implies an obligation. The obligation is directed at the “High Contracting Parties”, and thus does not impose direct obligations on non-State entities, such as organised armed groups and international organisations. The obligation arises whether the State party was engaged in an armed conflict at the time or not, and thus “in all circumstances”. However, there remains disagreement over the scope and effect of this obligation. The obligation “to respect” restates the principle of pacta sunt servanda: member States are under a duty to respect the GCs irrespective of this phrase. This is a negative obligation, in that it requires the State and its organs not

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to violate the GCs. Pursuant to the icrc Customary ihl Study, attribution is broader than State organs and reflects the laws of State responsibility: armed forces and other persons or groups acting in fact on its instructions, or under its direction or control [rule 139 icrc Customary ihl Study; see: State ­Responsibility]. It also includes an obligation not to encourage, aid, or assist violations of the GCs by others. More controversial is the phrase “to ensure respect”. One construction is that it merely requires contracting States to adopt positive measures to ensure the Conventions are respected within its jurisdiction by State and private actors. On this basis, the obligation is of means rather than result, the relevant question being whether such States have taken all reasonable steps, and thus exercised due diligence, to prevent violations of the GCs. A more expansive interpretation of “to ensure respect” is that contracting States are required to also ensure external compliance in response to transgressions of the GCs by other contracting States. It is difficult to draw a conclusion that the original intention behind Common Article 1 GCs was to secure the more expansive interpretation. However, it is an interpretation available in contemporary times, based on the erga omnes character of most norms contained within the GCs and APs, as well as the purposive approach to treaty interpretation, where such treaties have a humanitarian dimension. In assessing what breaches trigger States taking measures “to ensure respect”, the literature is divided, which will probably turn on the character and importance of the rights involved and the gravity of the breach. The obligation “to ensure respect” on this more expensive reading is one of conduct rather than result, with contracting States under a duty to do what they can to ensure the transgressor State respects the GCs. The measures that must be taken, and the criteria applicable to determine this, are not clear and will probably vary depending on the respective States’ material capabilities to act. They might include measures such as inducing States to ratify the GCs and assisting States to build capacity in the field of ihl where this is absent, as well as diplomatic measures such as public denunciation of a State’s conduct, to the exertion of pressure through the imposition of (non-forcible) countermeasures. Finally, the phrase “in all circumstances” embodies several legal meanings. It speaks to the non-reciprocal nature of the obligation and the invalidity of justifications by States for not observing their obligations. It also has a temporal and geographical dimension, applying at all times and in all territories in which the GCs apply. Michael Ramsden – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

L. Boisson de Chazournes, L. Condorelli, ‘Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests’, 82 irrc (2000). C. Focarelli, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?’, 21 ejil (2010). U. Palwankar, ‘Measures Available to States for Fulfilling their Obligation to Ensure Respect for International Humanitarian Law’, 34 irrc 298 (1994).

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

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

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the importance of this paragraph is somewhat limited, but it can be relevant when conflicts arise in relation to the creation of new States. Lindsey Cameron – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Common Article 3. Article 3 common to the four GCs, which regulates conflicts “not of an international character” occurring on the territory of a High Contracting Party [see: Non-International Armed Conflict], is a landmark provision of ihl. It sets out the minimum humanitarian guarantees that apply in all armed conflicts, whether they are international or non-international. These guarantees comprise the principle of humane treatment (including judicial guarantees), non-discrimination, and the obligation to collect and care for the wounded and sick [see: Inhuman Treatment; Fair Trial; ­Non-Discrimination; Wounded and Sick]. As the icj put it, Common Article 3 represents a “minimum yardstick” applicable in all armed conflicts and the rules contained therein are a reflection of “elementary considerations of humanity” [Judgment, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), icj, para. 218]. Although Common Article 3 does not regulate the conduct of hostilities, it is accepted that, when this provision applies, a number of rules on the conduct of hostilities also apply as a matter of customary ihl and, to a lesser extent, treaty law [see: Hostilities, Conduct of]. Historically, the inclusion of Common Article 3 in the GCs marked the recognition that civil strife is a matter of humanitarian law concern, and not something falling exclusively within a State’s domestic jurisdiction. This represents a considerable advance in the protection of victims of armed conflict. Previously, violence involving non-State actors was only regulated at the will of the parties to the conflict, most notably through ad hoc agreements, or through instructions spontaneously adopted by States for their armed forces [see e.g. the 1863 Lieber Code]. If a State recognized a non-State actor leading an insurrection on its territory as a belligerent (through the so-called recognition of belligerency), the laws and customs regulating international armed conflict and the law of neutrality applied to that conflict. However, recognition of belligerency was discretionary, and generally it only occurred if the insurgents met certain requirements of organizational nature and territorial control that would enable them to wage a war of a certain scale. Moreover, recognition of belligerency by third States did not bring about the applicability of the laws of war between the warring parties [2016 icrc Commentary gci, paras. 360–361; L. Oppenheim, International Law (Vol. ii) (1912), para. 76].

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The text of Common Article 3 reflects the delicate compromise that was reached during the Geneva Diplomatic Conference between three main views. Some States opposed any regulation of non-international armed conflicts. Others advocated for a text that would only make a few humanitarian law provisions applicable in all situations of non-international armed conflict, whereas some delegations were in favour of making the whole Conventions applicable, but in a more limited set of strictly defined circumstances. Once agreement was reached on the need to address non-international armed conflicts in the new conventions, the option of applying only certain provisions while giving them the widest possible scope of application prevailed. This is why Common Article 3 is considered a mini-convention within the Conventions, because it contains a catalogue of minimum humanitarian rules in the Conventions that apply to all non-international conflicts. States also agreed to leave open the possibility that the parties to the conflict may decide to bring into force other provisions of the Conventions by way of special agreements, as stated in the last paragraph of Common Article 3 [see: Special Agreements]. This would enhance the protection of victims of armed conflict, in keeping with the object and purpose of ihl. In any event, the last clause of Common Article 3 specifies that its application does not affect the legal status of the parties to the conflict. Without entering into detailed discussions on how ihl binds non-State armed actors, this means that there is an inherent tension in Common Article 3 [S. Sivakumaran, ‘The Addressees of Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015), pp. 425–426]. On the one hand, non-State armed groups are bound by the humanitarian guarantees in Common Article 3, as is the State party to the conflict. On the other, members of the non-State armed groups do not enjoy combatant immunity [see: Combatants]; hence, States retain their prerogative to prosecute them under their domestic law for committing belligerent acts. Regarding its scope of application, Common Article 3 applies to “a ­situation in which organized Parties confront one another with violence of a ­certain degree of intensity” [2016 ICRC Commentary GCI, para. 387; see: ­Non-­International Armed Conflict]. The determination of the existence of an armed conflict is significant, as it entails the application of ihl, alongside the relevant rules of ihrl. Specifically, Common Article 3 regulates armed ­violence involving at least one non-State armed group and either a State or ­another non-State armed group. As such, Common Article 3 has a broader scope of application than apii, which only applies in relation to States party to the Protocol, and to conflicts involving a State and organized armed groups exercising a degree of territorial control [see: Additional Protocol ii].

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Once the threshold for the application of Common Article 3 is met, it applies to the whole territory of the State concerned. There is some controversy regarding the geographical scope of application of Common Article 3 in situations where hostilities cross the borders of a State [see: Transnational Armed Conflict]. Several factual scenarios are possible [J. Pejić, ‘The Protective Scope of Common Article 3: More than Meets the Eye’, 93 irrc (2011), pp. 193–197]. Common Article 3 states that it applies to armed conflicts that occur “in the territory of one of the High Contracting Parties”. Yet, it is generally accepted that confrontations between a State and a non-State armed group are governed by Common Article 3 even if the conflict has spillover effects onto the territory of other States (typically, neighbouring States), if they consent to the use of force on their territory [2016 icrc Commentary gci, paras. 474–476; Pejić, pp. 199– 203]. The more difficult question – to which there is no firm answer – is how far the spillover effect may extend. The so-called global war on terror has drawn considerable attention to this issue, especially in relation to targeted killings of individual fighters who are located in the territory of States where there are no active hostilities. In the US view, the war on terror – which, according to the US Supreme Court, is governed by Common Article 3 [Opinion of the Court, Hamdan v Rumsfeld, US Supreme Court, p. 6] – is fought on a global scale. In contrast, the icrc takes a case-by-case approach to characterizing the use of force in the fight against terrorism [see: Terrorism (ihl); Terrorism (International Law)]. The question remains whether ihl applies to the targeting of fighters in the territory of States that are not involved in a conflict, or whether the law enforcement paradigm applies in such circumstances. The matter has considerable practical relevance, as the rules on the use of force under ihrl are more restrictive than the ihl rules [see: Targeted Killing; International Human Rights Law]. Importantly, the only requirement for protection under Common Article 3 is that the person or persons in question do not take active part in the hostilities [see: Direct Participation in Hostilities]. Thus, protection is based on actual conduct, and not on the status of the victim. Defining the contours of the notion of “active participation in hostilities” is thus of central importance to determining whether a person enjoys protection under Common Article 3 [J.K. Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015), pp. 435–439]. Moreover, there is no requirement that the victim has fallen in the hands of the enemy, or is in the power of the adverse party to the conflict [2016 icrc Commentary gci, para. 545]. The icc Appeals Chamber has recognized that “Common Article 3 provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation,

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requiring only that the persons were taking no active part in hostilities at the material time” [Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9”, Ntaganda, icc, Appeals Chamber, para. 60]. Thus, the protective scope of Common Article 3 may extend to victims of unlawful conduct perpetrated by persons affiliated with the same party to the conflict. This has important implications, for example, for the criminalization of intra-party violence in non-international armed conflicts. Thus, serious violations of Common Article 3 committed by a party to the conflict against its own members (for example, sexual violence perpetrated by members of an armed group against child soldiers enlisted to fight in the same group; the extra-judicial killings of members of a party to the conflict that are suspected of having collaborated with the enemy, or detention by a party to the conflict of its own ­members) could constitute war crimes, if they are committed with a nexus to the conflict. Overall, it can be argued that the broad wording of Common Article 3 is its strength, and its weakness. On the one hand, the lack of detail in the text of Common Article 3 has allowed for its application in the broadest possible set of circumstances. On the other, it leaves something to be desired, both in terms of substance of the relevant protections and the categories of beneficiaries. Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.K. Kleffner, ‘The Beneficiaries of the Rights Stemming from Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015). J. Pejić, ‘The Protective Scope of Common Article 3: More than Meets the Eye’, 93 irrc (2011). S. Sivakumaran, ‘The Addressees of Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).

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

260 Compelling a Protected Person to Serve in the Forces of the Hostile Power military operations against their country. Similarly, according to Article 23(h) of the 1907 Hague Regulations, “a belligerent is […] forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war”. Furthermore, Article 51 gciv provides that “the Occupying Power may not compel protected persons to serve in its armed or auxiliary forces”. This rule may also be classified as customary ihl [rule 95 icrc Customary ihl Study]. The icrc has clarified that such conduct “is a specific type of forced labour” and that “[t]he reasoning behind the rule is the distressing and dishonourable nature of making persons participate in military operations against their own country – whether or not they are remunerated” [J.-M. Henckaerts, L. DoswaldBeck, Customary International Humanitarian Law (2005), Vol. 1, pp. 333–334]. However, other forms of labour performed by prisoners of war and other protected persons may be permissible in ihl [see: Deprivation of Liberty, Treatment; Workers]. While “[u]ncompensated or abusive forced labour” is, in general, prohibited in both international and non-international armed conflicts under customary ihl, compelling protected persons to serve in the forces of a hostile power, as a variant of such labour, is, by its nature, prohibited in international armed conflicts only [Henckaerts, Doswald-Beck, pp. 333–334]. Violating the prohibition to compel a protected person to serve in the forces of the hostile power may attract individual criminal responsibility. According to Article 130 gciii, compelling a prisoner of war to serve in the forces of the hostile power is a grave breach of that Convention [see: Grave Breaches]. Similarly, Article 147 gciv sets out that “compelling a protected person to serve in the forces of a hostile Power” is a grave breach. The prohibition is also included in Article 8(2)(a)(v) and 8(2)(b)(xv) icc Statute and Article 2(e) icty Statute. Even though the modern international courts and tribunals have not dealt with this issue in their cases, there are some legal precedents from the war crimes trials following World War ii. In the Ministries case, conducted pursuant to Control Council Law No. 10, the US Military Tribunal held that “it is not illegal to recruit prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons to enter into the armed services obviously violates international law” [Judgment, The United States of America vs. Ernst von Weizsäcker et al., Nuernberg Military Tribunal iv A, p. 549]. In the Wagner et al. case, Robert Wagner and others were found guilty of recruiting French nationals to fight for German armed forces [Judgment, Trial of Robert Wagner and Six Others, Permanent Military Tribunal at Strasbourg, pp. 40–41].

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Amir Čengić – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005), Vol. 1, pp. 333–334.

Conciliation. Conciliation is one method of peaceful settlement of disputes between States available in international law [art. 33(1) UN Charter]. Conciliation is a non-compulsory procedure available in treaties or on which States agree ad hoc. It is usually conducted by a commission composed by an uneven number of conciliators, who are appointed by the conflicting parties and tasked with elucidating, within a reasonable time, the questions in dispute, and with assisting the parties in reaching an amicable and mutually acceptable agreement. If no such settlement can be reached during the consideration of the dispute, the commission may draw up and present recommendations for the consideration of the parties. Such recommendations are not binding, unless the parties accept them [differently, art. 14(3) Treaty Establishing the Organisation of Eastern Caribbean States]. Conciliation commissions adopt their own rules of procedure [UN Model Rules for the Conciliation of Disputes between States annexed to A/Res/50/50]. These may include hearings, requesting documentation, summoning witnesses and experts, and, with the parties’ approval, visiting the localities in question. Under ihl, Articles 11 gci-iii and 12 gciv foresee conciliation proceedings. These common provisions derive from and combine elements of Articles 83(3) (encouraging meetings between representatives of belligerent parties) and 87 of the 1929 Geneva Convention on Prisoners of War, which established a formal procedure for settling disputes [see also: 2016 icrc Commentary gci, para. 1268]. They provide that the protecting powers, whenever “they deem it advisable in the interests of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation” of the GCs provisions, offer their “good offices” to the opposing parties [see also: art. 8 GCI; art. 8 GCII; art. 8 GCIII; art. 9 gciv; Protecting Powers]. The term particularly makes clear that the initiation of conciliation is not contingent upon the existence of a dispute [2016 icrc Commentary gci, para. 1261]. Protecting powers are presumed to act independently and not necessarily as agents of the party whose interests they seek to protect [arts. 8(1) gci-iii; art. 9(1) gciv].

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The good offices may involve various measures, including the proposal of convening a meeting among the parties concerned, in particular the authorities responsible for the protected persons, possibly on neutral territory [see: Protected Persons]. Each of the protecting powers may propose this measure “either at the invitation of one Party or on its own initiative”. If necessary, the protecting powers may propose that a “person belonging to a neutral Power” or appointed by the icrc be invited to take part in the meeting. The conflicting parties “shall be bound to give effect to the proposals made to them” for the purpose of holding the meeting. This does not extend, however, to other proposals made by the protecting powers, in particular any recommendations for the settlement of the question in dispute. Although conciliation is only regulated in provisions applicable to international armed conflict, an argument can be made that this mechanism is available also in non-international armed conflict. In fact, the institution of conciliation is instrumental to ensuring ­respect and implementation of ihl, which constitutes a paramount responsibility of States [rule 144 icrc Customary ihl Study; see: Common Article 1]. The GCs differ from conciliation as understood traditionally, insofar as they combine elements of good offices [arts. 2–8 1907 Hague Convention on Pacific Settlement of International Disputes] and conciliation. They do not foresee the institution of a commission of conciliators or the submission of a report, and the working methods are rudimentary. Importantly, the GCs allow the initiation of conciliation in the absence of any disagreement between the parties, but whenever the protecting powers “deem it advisable in the interests of ­protected persons”. To date, the conciliation mechanism has never been used. Eleni Chaitidou – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

T. Boutruche, ‘Good Offices, Conciliation and Enquiry’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015). UN Office of Legal Affairs/Codification Division, Handbook on the Peaceful Settlement of Disputes between States (1992), pp. 45–55.

Continuous Combat Function; see: Direct Participation in Hostilities Convention on Certain Conventional Weapons (1980). The 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, also known as the Inhumane Weapons Convention, gives expression

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to the principle of ihl that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. The ccw aims at: (i) protecting combatants from superfluous injury or unnecessary suffering and civilians from indiscriminate effects of weapons; and (ii) pursuing a disarmament objective [Preamble ccw]. The ccw is an umbrella treaty to which protocols containing weapon-specific provisions are annexed. The ccw grew out of a series of governmental expert meetings on the reaffirmation and development of ihl, which took place in the 1970s and fed into the Diplomatic Conference (1974–1977) that negotiated the APs. In the course of these processes, several categories of weapons that may cause unnecessary suffering or have indiscriminate effects were identified: among them, incendiary weapons and certain explosive (“delayed-action”, “blast and fragmentation”) weapons [icrc, Weapons that May Cause Unnecessary ­Suffering or Have Indiscriminate Effects: Report on the Work of Experts (1973); F. Kalshoven, ‘Arms, Armaments and International Law’, in Collected Courses of the Hague Academy of International Law (1985), pp. 251–265]. However, the final version of api contained only general rules on methods and means of warfare [e.g. art. 35 api], but no weapon-specific provisions. Thus, with a view to reaching agreements on prohibitions or restrictions of the use of specific conventional weapons, a follow-on conference was held under the auspices of the UN in Geneva, from 10 to 28 September 1979 and from 15 September to 10 October 1980. This conference adopted the ccw, as well as three protocols. Protocol i ccw (1980) prohibits the use of “any weapon the primary effect of which is to injure by fragments, which in the human body escape detection by X-rays” [see: Non-Detectable Fragments]. Protocol ii ccw (1980) places limited restrictions on the use of landmines, booby-traps and other (explosive) devices [see: Landmines; Booby-Traps; Explosive Weapons]. Protocol iii ccw on Prohibitions and Restrictions on the Use of Incendiary Weapons (1980) p ­ rohibits the use of air-delivered incendiary weapons to attack military ­objectives located within a concentration of civilians [art. 2(2) Protocol iii ccw; see: I­ ncendiary Weapons]. In 1995, a fourth Protocol prohibiting the use of blinding laser weapons was adopted [see: Laser Weapons, Blinding Weapons] and, in 1996, Protocol ii was revised with a view to strengthen its provisions. ­Protocol v on Explosive Remnants of War, adopted in 2003, seeks to prevent and remedy the post-conflict humanitarian problems caused by unexploded and abandoned explosive ordnance [see: Explosive Remnants of War]. Although some ccw Protocols contain provisions on the transfer of weapons [e.g. art. 1 Protocol iv ccw] or their post-use effects [e.g. art. 3 Protocol v ccw], the focus is on the regulation of the use of weapons as means of warfare. Initially, the ccw and its Protocols applied only in situations of international

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armed conflict [art. 1 ccw; see International Armed Conflict]. An amendment adopted in 2001 expanded the scope of application to non-international armed conflict. Unless indicated otherwise [e.g. in art. 7(2) ccw; art. 8(1)(c) Amended Protocol ii ccw; or art. 1 Protocol iv ccw], States parties are not bound by the ccw in relation to States not parties. However, each party to a non-international armed conflict, State and non-State actors alike, are bound to apply the ccw and its Protocols if the State on whose territory the conflict takes place has ratified the 2001 Amendment [amended art. 1(3) ccw]. ccw States parties meet annually to review the status and operation of the Convention and every five years for a Review Conference. They can mandate a Group of Governmental Experts (gge) to consider new issues relating to conventional weapons. In the past, the gge has considered explosive remnants of war, mines other than anti-personnel mines, small-calibre weapons and ­ammunition, cluster munitions, improvised explosive devices and, most ­recently, “emerging technologies in the area of lethal autonomous weapons systems” [ccw, Final Document of Fifth Review Conference (23 December 2016)]. Not all of these discussions have yielded tangible results. Maya Brehm – the views expressed are those of the author alone and do not necessarily reflect the views of Article 36 Bibliography

J. Goldblat, Arms Control: The New Guide to Negotiations and Agreements (2002), pp. 279–293. F. Kalshoven, ‘Arms, Armaments and International Law’, Collected Courses of the Hague Academy of International Law (1985). D. Kaye, S.A. Solomon, ‘The Second Review Conference of the 1980 Convention on Certain Conventional Weapons’, 96(4) ajil (2002). Weapons Law Encyclopedia, ‘1980 Convention on Certain Conventional Weapons’.

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

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s­ubmunitions and their parent container or dispenser. As provided in Article 2(3) ccm, explosive submunitions are munitions weighing less than 20 ­kilogrammes, that are designed to explode prior to, on, or after impact with a target. Depending on the type and model, the number of submunitions dispersed or released by a cluster munition container or dispenser can vary from several dozen to several hundred. Cluster munitions can be dropped from the air or dispersed by artillery [see: Artillery]. The Convention’s general prohibitions also apply to “explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft” [art. 1(2) ccm]. While such munitions are not formally defined as cluster munitions for the purposes of the Convention, the general prohibitions on use, development, production, acquisition, stockpiling, retention, and transfer in its Article 1 apply to these bomblets. The Convention explicitly does not apply to landmines [art. 1(3) ccm], even when they are dispersed from a parent container when they would otherwise be classified as cluster munitions. The Convention also does not deem containers with fewer than 10 explosive submunitions to be cluster munitions falling within its purview as long as each submunition: weighs more than four kilogrammes; can detect and engage a specific target object; and is equipped with electronic self-destruct and self-deactivating features. This is, to date, the only weapons treaty in which such autonomous sensor-fuzed weapons are specifically addressed (and allowed). But while the ccm neither prohibits nor restricts such weapons, their use in the conduct of hostilities is still governed by the general ihl rules of distinction, proportionality, and precautions in attack [see: Distinction; Proportionality; Precautions, Active; Precautions, Passive]. Each State is required, within eight years of becoming party to the Convention, to destroy all stockpiled cluster munitions that are under both its jurisdiction and its control [art. 3(1) ccm]. Thus, it differs materially from the corresponding provisions in the 1992 Chemical Weapons Convention and the 1997 Anti-Personnel Mine Ban Convention, both of which apply to weapons under a State party’s jurisdiction or control [see: Chemical Weapons Convention (1992); Anti-Personnel Mine Ban Convention (1997)]. In August 2016, the civil society monitoring network Cluster Munition Monitor reported that 40 States parties had stockpiled cluster munitions at some point in time, of which 29 had completely destroyed their stockpiles, collectively destroying nearly 1.4 million cluster munitions containing almost 173 million submunitions. This represents destruction of 97% of the total number of submunitions declared by States parties [Cluster Munition Monitor 2016, p. 40]. The treaty deadline can be extended for an additional four years by either a meeting of States parties or a review conference, and further extensions of

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four years may also be granted “in exceptional circumstances” [art. 3(3) ccm]. States may, though, retain a limited number of cluster munitions and explosive submunitions for development of and training in detection, clearance, or destruction techniques, or to develop countermeasures [art. 3(6) ccm]. Each State must also clear its own territory (and other territory it controls) of cluster munition remnants (cmr) within ten years of becoming party to the Convention. cmr comprise abandoned cluster munitions, failed cluster munitions, or unexploded submunitions or bomblets [art. 2(7) ccm]. As at May 2016, 14 States parties (Afghanistan, Bosnia and Herzegovina, Chad, Chile, Colombia, Croatia, Germany, Iraq, Laos, Lebanon, Montenegro, Mozambique, Somalia, and the United Kingdom) and two signatories (Angola and the Democratic Republic of Congo) were confirmed or strongly suspected to be contaminated with cluster munition remnants [Mine Action Review, Clearing Cluster Munition Remnants (2016)]. In accordance with Articles 4(5) to 4(8) ccm, if a State party believes it is unable to complete clearance in time, it may request extensions from a meeting of States parties or a review conference for additional periods of up to five years at a time. The first such requests are expected at a meeting of States parties in 2019, at least from Laos, the world’s most heavily cluster-munition-contaminated nation. Detailed provisions are included on assistance for victims. Each State party that has cluster munition victims on its own, or other territory under its control, must provide for their medical care and physical rehabilitation, psychological support, and social and economic inclusion [art. 5 ccm]. Not only those who are killed or injured by cluster munitions are defined as “cluster munition victims”; the term also extends to families and communities that have suffered socio-economic or other harm [art. 2(1) ccm]. The ccm sets out mechanisms and obligations to promote its effective implementation, including by requiring “all appropriate legal, administrative, and other measures” at domestic level [art. 9 ccm]. This may include penal sanctions to prevent and suppress violations by individuals or on territory under each State party’s jurisdiction or control. States parties are required to report annually to the UN Secretary General on the types and numbers of cluster munitions destroyed, the extent and location of areas contaminated by cluster munitions, the status of clearance programmes, measures taken to provide risk education and warnings to civilians, programmes for victim assistance, and measures taken domestically to implement the Convention [art. 7 ccm]. Annual meetings of States parties and five-yearly review conferences are held to review adherence to, and implementation of, the Convention, in conformity with Articles 11 and 12 ccm. The first meeting of States parties was held in Vientiane (Laos) in November 2010 and the first review conference

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was held in Dubrovnik (Croatia) in September 2015. The work of implementing the ccm is supported by an Implementation Support Unit, formally established within the Geneva International Centre for Humanitarian Demining in May 2015. States parties are generally prohibited from assisting, encouraging, or inducing anyone to undertake any activity prohibited by its provisions. However, Article 21 ccm, which deals with relations between States parties and States not party, allows the former to engage in military operations or cooperation with other States that may stockpile, transfer, and/or use cluster munitions prohibited under the Convention. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

G. Nystuen, S. Casey-Maslen (eds.), The Convention on Cluster Munitions: A Commentary (2010).

Convention on the Rights of the Child (1989) and Its Protocols. The Convention on the Rights of the Child (crc), adopted on 20 November 1989 and entered into force on 2 September 1990, is an international treaty that contains a set of legally binding international standards for the promotion and protection of children’s rights. 1. The Convention The rights contained in the crc can be grouped into four main categories. First, survival rights are the most basic rights, including the child’s rights to life [art. 6(1) crc], adequate nutritious foods and clean drinking-water [art. 24(2)(c) crc], an adequate standard of living [art. 27 crc], and enjoyment of the highest attainable standard of health [art. 24 crc]. Second, the crc covers development rights, including the rights to education [art. 28 crc], leisure and participation in recreational and cultural activities [art. 31 crc], access to information [art. 17 crc], and freedom of thought, conscience and religion [art. 14 crc]. Third, it spells out protection rights, intended to safeguard children against all forms of violence, abuse, neglect and exploitation [art. 19 crc], including the right to special protection in times of war [arts. 38–39 crc]. Fourth, specific participation rights are also recognized for children, such as the freedom to express their views freely in all matters affecting them [art. 12 crc] and the right to freedom of expression [art. 13 crc]. It is noteworthy that,

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

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2. The Optional Protocols Three optional protocols to the crc have been successively adopted, furthering child rights in specific domains. First, opac, which was adopted by unga Resolution 54/263 of 25 May 2000 and entered into force on 12 February 2002, focuses on the prohibition of the recruitment and use of children as soldiers in armed conflicts, furthering the provisions of Article 38 crc. It seeks to have States ensure that members of their armed forces under the age of 18 do not participate in hostilities, and that persons under that age are not compulsorily recruited [arts. 1–2 opac]. States are also required to raise the minimum age for voluntary recruitment [art. 3 opac]. opac also provides that non-State armed groups should not, under any circumstances, recruit or use in hostilities children under 18, and requires States parties to take all feasible legal measures to prohibit and criminalize such practices [art. 4 opac]. Second, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (opsc), which was adopted by unga Resolution 54/263 of 25 May 2000 and entered into force on 18 January 2002, prohibits and defines the sale of children, child prostitution and child pornography [arts. 1–2 opsc], and requires States parties to criminalize these offences and, where appropriate, to establish the liability of offenders in their domestic legal order [arts. 3–4 opsc]. Finally, the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, which was adopted by unga Resolution 66/138 of 19 December 2011 and entered into force on 14 April 2014, creates an international complaints procedure for child rights violations, allowing children from States parties to bring complaints about violations of their rights directly to the UN Committee on the Rights of the Child if no remedy was found at the national level. 3. Practical Application The crc and its Protocols have helped to change the way children are viewed and treated: as human beings with a distinct set of rights and their own agency, instead of passive objects of care and charity. Moreover, the quasi-universal acceptance of the crc (all States except one are parties to it) underlines the global commitment to advance children’s rights, at least theoretically. However, the reality in terms of application and the gaps thereof show that much more remains to be done to protect the rights of all children in the context of armed conflicts.

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Cécile Aptel – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations High Commissioner for Human Rights or any other institution the author is affiliated with Bibliography

S. Detrick, A Commentary to the Convention on the Rights of the Child (1999). T. Liefaard, J. Sloth-Nielsen, The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead (2016). ohchr and Save the Children Sweden, Legislative History of the Convention of the Rights of the Child (2007). E. Verhellen, Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes (2000).

Conventional Arms; see: Arms Trade Treaty (2014); Convention on Certain Conventional Weapons (1980); Small Arms and Light Weapons Counter-Terrorism; see: Anti-Terrorist Operations; Terrorist Organizations Cruel Treatment; see: Inhuman Treatment Cultural Property; see: Hague Convention for the Protection of Cultural Property (1954) and its Protocols Customary International Humanitarian Law. Customary ihl fulfils an important role in the legal framework of ihl for several reasons. It applies universally, regardless of whether States are party to the relevant ihl treaties. For example, even though the 1949 GCs − of which the majority of the rules are considered to be customary ihl − have been ratified by 196 States, not all States are party to the APs. Accordingly, in situations covered by the APs, States not party to these treaties would have to see if customary law provides for rights and obligations. Furthermore, besides the difference in the applicable rules depending on which State is party to the conflict, a considerable gap exists in the application of treaty law in non-international armed conflicts where only Common Article 3 GCs applies and apii for States party to it [see: Common Article 3; Additional Protocol ii]. Customary ihl is therefore of utmost importance and partly fills this gap, with regard to the essential rules on the protection of civilians, conduct of hostilities, and means and methods of warfare, where State practice shows acceptance by States of these customary rules as

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

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

J.M. Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, 87(857) irrc (2005).

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Customary International Law. International custom is one of the primary sources of international law, defined in Article 38(1)(b) icj Statute as “evidence of a general practice accepted as law”. This wording has been taken literally from the text of Article 38(2) pcij Statute. Customary international law (cil), as opposed to international conventions, is unwritten and can be deduced from the practice and behaviour of States. A customary rule is binding on all States even though a State does not necessarily have to participate in its creation or show that it accepts it, as long as a State did not persistently object to the ­formation of the rule. The formation of such a rule does not necessarily have to take a long time [Judgment, North Sea Continental Shelf Cases (­ Denmark/The Netherlands v. Federal Republic of Germany), icj, paras. 73–74]. There are many views on what cil precisely entails, as it is not a straightforward concept but one that is influenced by social and political aspects. However, it is well established that, in order to determine the existence, scope, and content of a rule of cil, it is necessary to ascertain whether the following two constituent elements are present: a general practice (State practice); and whether this practice is accepted as law (opinio iuris) [e.g. Judgment, Asylum Case (Colombia v. Peru), icj, pp. 14–15; Judgment, Fisheries Case (United Kingdom v. Norway), icj, p. 131; North Sea Continental Shelf Cases (Denmark/ The Netherlands v. Federal Republic of Germany), para. 77; Judgment, Continental Shelf Case (Libya v. Malta), icj, para. 27; Judgment, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), icj, paras. 183 et seq; Judgment, Jurisdictional Immunities of the State (Germany v. Italy), icj, para. 55; Judgment, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), icj, para. 99]. This so-called “two-elements test” has been endorsed by the ilc. 1. The Objective Element: “General Practice” Practice by States (conduct of the State in the exercise of its executive, legislative, judicial and other functions) is primarily to be considered in the ­assessment of evidence of the existence of a custom. In certain cases, practice by international organizations can also contribute to the formation of cil [­Advisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), icj, para. 22]. Practice includes both acts and, to a certain extent, omissions. The practice by States (or international organizations) must be general, which can be shown by three interlinked conditions: sufficiently widespread character, representativeness and consistency. To which degree these three conditions

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are relevant depends on the subject and specific circumstances of a situation. There should be geographical spread (which is not necessary for regional or local custom) and the majority of States should be following the practice of certain States or should not object or resist such practice (i.e. practice should be “extensive and virtually uniform”) [North Sea Continental Shelf Cases, para. 74]. Some States could have more influence than others. There is also the view, despite criticism, that the practice of “specially affected” States should have more importance [North Sea Continental Shelf Cases, para. 73]. 2. The Subjective Element: “Accepted as Law” The State, in conducting the practice, must have a general belief that this practice is necessitated by a legal obligation. The opinio iuris element distinguishes customary law from mere usage or habit. Opinio iuris can be deduced from both acts and omissions as under certain circumstances failure to react to a certain practice may serve as evidence of opinio iuris [Judgment, S.S. “Lotus” (France v. Turkey), pcij, p. 28; North Sea Continental Shelf Cases, para. 78]. Sometimes, establishing opinio iuris is complicated, for example with regard to norms imposing an abstention for which it has to be ascertained whether a State refrained from committing such an act out of a legal belief or for different reasons. Other examples include issues of ihl and hrl, as the practice in those areas is not always exemplary, because more emphasis will be attached to what is said than what is done, e.g. a State denies certain practice, justifies its behaviour or condemns other States [Nicaragua Case, para. 186; see: Customary International Humanitarian Law]. 3. Forms of General Practice and Opinio Iuris The ilc explains that, in the assessing whether the two elements are present, “regard must be had to the overall context, the nature of the rule, and the particular circumstances in which the evidence in question is to be found” [ilc, Draft Conclusion 3 and Commentary – Fourth Report of the International Law Commission on Identification of Customary International Law (ilc Report) (2016), pp. 84–87]. Evidence of State practice and opinio iuris can take many forms, such as diplomatic correspondence, decisions of national courts, and conduct in connection with the making of treaties of the adoption of resolutions by international organizations. Those examples are not necessarily evidence for both State practice and opinio iuris. Both elements have to be ascertained individually, for which in some cases the same material could be used but “the existence of one element may not be deduced merely from the existence of the other […]”

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[ilc Report, p. 87]. It also has to be taken into account that not all material can be considered of equal value, as this depends on the nature and origin of such evidence of conduct [Judgment, Case Concerning Rights Of Nationals of the United States of America in Morocco (France v. United States), icj, p. 200]. 4. Persistent Objector When a new customary rule is in the making, it cannot be instantly obligatory. A State objecting to the rule in formation will not be able to hinder the formation of the rule, but can be considered as opting out of it and thus the rule will not be applicable to that dissenting State. The objection made by the State “must be clearly expressed, made known to other States, and maintained persistently” as articulated by the ilc [ilc Report, p. 79]. Nevertheless, there is not much precedence on the persistent objector rule and it has been argued by many that in case of emergence of a ius cogens rule, the persistent objector will not be able to maintain its stance. 5. Relationship with Treaty Law One of the other primary sources of international law is treaty law. The drafting, ratification, accession, interpretation, and implementation of a treaty could be used as evidence of practice and opinio iuris to assess whether a customary rule exists. The ilc, in its Draft Conclusion 11(2), explains furthermore that “the fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law” [ilc Report, p. 102]. Three situations can be distinguished with r­ egard to the relationship between treaty law and cil: – There is an existing rule of cil first, followed by a treaty: the rule of cil is codified in the treaty, the treaty has a “declaratory effect” and the customary rule remains in effect. Unless the customary rule is ius cogens, it is also ­possible to conclude a treaty against the existing rule of customary law; – There is a rule of custom and a treaty evolving at the same time: the adoption of the treaty may have a “crystallizing effect”, bringing the customary rule into existence; – A treaty is concluded first, followed by the emergence of a rule of cil on the same subject matter: in this case the behaviour of States not party to the treaty should be assessed in order to see if and what the content of the rule of customary law is. The relations between a State party to the treaty and a State that is not party to the treaty will be governed by customary law as will be the relations among non-State parties.

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Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his feedback) – the views expressed are those of the author alone and do not necessarily reflect the views of the Institut de Droit International or the United Nations High Commissioner for Refugees Bibliography

J. Crawford, Brownlie’s Principles of Public International Law (2012), pp. 20–47.

Cyber Warfare. Cyber operations during armed conflict employ cyber capabilities in order to achieve objectives in, or by the use of, cyberspace [M.N. Schmitt, Tallinn Manual on the International Law Applicable to Cyber ­Warfare (2013), p. 258]. Such operations are directed against, or sent via a computer or computer s­ ystem, through a data stream. Once the computer system c­ oncerned has been infiltrated, it is possible to collect, export, destroy, alter, or otherwise manipulate processes controlled by the targeted structure [C. Droege, ‘Get off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of C ­ ivilians’, 94(886) irrc (2012), p. 538]. The general principles of ihl, such as military necessity, distinction, ­proportionality and the prohibition of unnecessary suffering [see: International Humanitarian Law, General Principles of] apply to cyber operations [Schmitt, p. 105]. For the purposes of the law on the conduct of hostilities, a “cyber attack is a cyber operation, whether offensive or defensive, that is reasonably ­expected to cause injury or death to persons or damage or destruction to objects” [Schmitt, p. 106]. For example, one form of cyber weapon, known as a “botnet”, permits belligerent parties to launch coordinated attacks against adversaries by asserting “command and control” over the enemy’s computer servers [K.W. Hamlen, ‘Stealthy Software: Next-Generation Cyber-Attacks and Defenses’, ieee International Conference on Intelligence and Security ­Informatics: Big Data, Emergent Threats, and Decision-Making in Security Informatics (2013), pp. 109–112]. In 1977, at the time of the adoption of api and apii, cyber warfare did not exist, and it was assumed that the notion of attack only related to kinetic means of conducting hostilities. However, a progressive interpretation of the ­concept of attack in ihl can also be understood in a non-kinetic context, including military operations (whether offensive or defensive) utilising computers [D. Turns, ‘Cyber War and the Concept of “Attack” in International Humanitarian Law’, in D. Saxon (ed.), International Humanitarian Law and the Changing Technology of War (2013), pp. 221–225; see: Attacks]. Indeed, it is the degree of consequential harm intended or resulting from a cyber operation, includ-

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ing the loss of functionality of computer infrastructure and other objects, that distinguishes a cyber attack from a cyber operation [Schmitt, pp. 106–110]. To qualify as an attack, a cyber operation against an object should make that ­object unusable for its intended purpose, at least until it can be repaired [M.N. Schmitt, ‘Rewired Warfare: Rethinking the Law of Cyber Attack’, 96(893) irrc (2014), p. 199]. The question of attribution for a cyber attack is of vital importance for international law [P. Marguiles, ‘Sovereignty and Cyber Attacks: Technology’s ­Challenges to the Law of State Responsibility’, 14 Melbourne Journal of ­International Law (2013), p. 496]. Nevertheless, in addition to their technical complexity, one starkly evident quality of cyber weapons is (ironically) their invisibleness. This characteristic of software code, combined with the vast anonymity and interconnectivity of cyber space, presents profound challenges for determining whether the executors of cyber attacks are combatants, ­civilians, or civilians directly participating in hostilities [see: Combatants; Civilians; ­Direct Participation in Hostilities]. In addition to State armed forces, for example, adversaries in cyber warfare can be individuals, looselyorganised groups of anonymous hackers, as well as other non-State actors [H. ­Harrison Dinnis, ‘­Participants in Conflict – Cyber Warriors, Patriotic Hackers and the Laws of War’, in D. Saxon (ed.), International Humanitarian Law and the Changing Technology of War, pp. 251–252]. The rights and obligations accorded to each category of cyber operator under ihl must remain robust before, during, and after cyber attacks. Consequently, re-interpretation of, inter alia, the requirements for combatant status provided in Article 4(A)(2) gciii – drafted in a period when warfare still involved a degree of physical proximity between adversaries – will be necessary to meet the new reality of cyber warfare. For example, the duty of combatants to distinguish themselves from the civilian population could translate into an obligation for State armed forces to launch cyber attacks from “a designated military IP address” [Harrison Dinnis, p. 256] or a military network clearly separate from civilian cyber infrastructure [see: Combatants]. Similarly, in the context of non-international armed conflicts, the use of similar electronic emblems could apply to determinations of whether particular non-State actors constitute an organised armed group [see: Armed Groups]. The challenge of attribution and identification of lawful targets in cyber space relates directly to the api obligations to take feasible precautionary measures to reduce injury to civilians and damage to civilian objects during attack [see: Precautions, Active; Precautions, Passive]. In cyberspace, “­every component of the cyber infrastructure is a dual-use object” and armed forces generally use the same cyber infrastructure that is intended for civilian pur-

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poses [R.  Geiß and H. Lahmann, ‘Cyber Warfare: Applying the Principle of ­Distinction in an Interconnected Space’, 45(3) Israel Law Review (2012), p. 383; see: Military Objectives; Civilian Objects]. Accordingly, the duty to take feasible precautions requires commanders preparing a cyber attack to study their enemy’s networks to discern how to target only military objectives, and to reduce potential damage to civilian objects [E. Talbot Jensen, ‘Cyber Attacks: Proportionality and Precautions in Attack’, 89 International Law Studies (2013), p. 210]. Failure to do so would constitute an indiscriminate attack [see: Indiscriminate Attacks]. Moreover, given the complexity of cyber warfare, the high probability of affecting civilian networks, and the sometimes limited understanding of the nature and effects of cyber operations on the part of those planning and approving cyber attacks, commanders should, where feasible, have technical experts available to them to determine whether appropriate precautionary measures have been used [Schmitt, p. 138]. Conversely, the advent of precise cyber weapons capable of disabling enemy objects and infrastructure without kinetic force creates opportunities to achieve military goals, while minimizing damage to civilian objects and injuries to civilians [Y. Dinstein, ‘The Principle of Distinction and Cyber War in International Armed Conflicts’, 17(2) Journal of Conflict & Security Law’ (2012), pp. 274–275]. Thus, a decision to launch a cyber attack on a military objective, rather than a conventional kinetic attack, may by itself constitute a precautionary measure to avoid or reduce civilian casualties. In addition, cyber weapons may constitute an important means to comply with the principle of military necessity, namely to employ only the degree of force required to accomplish the submission of the enemy at the earliest possible moment with the least expenditure of life and resources [see: Military Necessity]. Furthermore, the interconnectivity of military and civilian cyber infrastructure raises significant challenges for commanders who must conduct proportionality assessments when they plan cyber attacks [see: Proportionality]. The potential (although not necessarily the likelihood) for incidental damage is enormous, even when employing the most sophisticated malware. Some cyber weapons such as the “Stuxnet” worm are extraordinarily discriminate and precise [W. Broad, ‘Israel Test on Worm Called Crucial in Iran Nuclear Delay’, The New York Times (2011)]. Nevertheless, even the “Stuxnet” malware eventually found its way into the internet, where it autonomously infected thousands of computer systems around the world with far less precision than its designers intended [G. Keizer, ‘Why Did Stuxnet Spread?’, Computer World (2010)]. In the future, the dominance of cyberspace will become a strategic goal for the military as important as achieving control over land, airspace or the sea has been in traditional conflicts [Geiß, Lahmann, p. 384]. As the technology of cy-

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ber weapons develops, interpretation and application of the rules of ihl must also advance to ensure the law’s ability to limit the suffering caused by warfare. Dan Saxon – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, ‘The Principle of Distinction and Cyber War in International Armed Conflicts’, 17(2) Journal of Conflict & Security Law (2012). R. Geiss, H. Lahmann, ‘Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space’, 45 Israel Law Review 3 (2012). D. Saxon (ed.), International Humanitarian Law and the Changing Technology of War (2013). M.N. Schmitt, ‘Rewired Warfare: Rethinking the Law of Cyber Attack’, 96(893) irrc (2014). E. Talbot Jensen, ‘Cyber Attacks: Proportionality and Precautions in Attack’, 89 International Law Studies (2013).

Dead Persons. The protection of the dead under ihl refers to the duty of the parties to the conflict to protect and treat respectfully bodies, remains, and graves in both international and non-international armed conflicts. The rationale of this duty is to preserve the dignity and memory of the dead, to ensure the right of the families to know the fate of their relatives [art. 32 api], and therefore to facilitate families’ and society’s healing. The respectful treatment of the dead in times of war has been a concern for humans since ancient times, as acknowledged in Homer’s Iliad about Achilles’ treatment of Hector’s body. In modern ihl, the interdiction to rob or mutilate the dead on the battlefield has been laid down in the 1880 Oxford Manual. Furthermore, the obligation of the parties to examine and identify the bodies of the dead prior to their interment or cremation was already foreseen in the first Geneva Convention of 1906. The 1949 GCs and their APs contain the following obligations for the parties to the conflict with respect to the dead: (i) search for the dead and prevent their bodies from being despoiled [arts. 15(1) gci; 18(1) gcii; 16(2) gciv; 33(4) api; art. 8 apii]; (ii) record information on the dead of the adverse party who have fallen into their hands or who died while detained by them, with a view to their identification, and transmit the information (including certificates and personal items) to the adverse party, through the Information Bureaux with regard to protected persons, the protecting power, and the Central Agency [arts. 16 gci; 19 gcii; 120(2) gciii; arts. 129(2)-(3), 136(2) gciv]; (iii) ensure in-

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dividual and honourable burial or cremation after careful examination [arts. 17 gci; 20(1) gcii; 120(3)-(5) gciii; art. 130(1–2) gciv]; (iv) ensure that gravesites are properly maintained, respected, and marked to permit possible return of the remains or ashes to the home country [arts. 17(3) gci; 120(4), (6) gciii; 130 gciv; art. 34 api]; and (v) investigate into violent or suspicious deaths of protected persons held in their power (prisoner of war or civilian internee), forward the information to the protecting power, and prosecute the person(s) found responsible [arts. 121 gciii; art. 131 gciv]. It is worth noting that the obligation to search for the dead is a prerequisite for nearly all remaining obligations with regard to the dead [see: Casualties, Search for]. Accordingly, the extent to which this obligation must be undertaken by the parties to the conflict has to be interpreted in light of this consideration. Some of these obligations are applicable only in reference to dead protected persons [see: Protected Persons], namely the duty to record and forward information or the duty to investigate and prosecute. Most of the other obligations listed are, however, applicable to both the party’s own civilians and combatants. Moreover, when written ihl does not provide for protection of the party’s own deceased, ihrl fills the gap [see: International Human Rights Law]. ­Indeed, human rights monitoring bodies and courts inferred from the right to life a procedural obligation on the part of the State to conduct an effective investigation into the alleged violations of the right to life occurring during an armed conflict [Judgment, Al-Skeini et al. v. UK, ECtHR, Grand Chamber, para. 164]. The duty to record information on the dead for identification purposes may be seen as the prerequisite for the obligation under ihrl to undertake effective investigations into the deaths occurring in the State’s jurisdiction. Most of the aforementioned obligations under the ihl of international armed conflict are applicable in non-international armed conflict as well, either by virtue of the interpretation of the written rules of ihl applicable to non-international armed conflict [art. 8 apii; common art. 3 GCs, which forbids “outrages upon personal dignity” of persons “hors de combat”], or by virtue of customary ihl [rules 112–116 icrc Customary ihl Study], ihrl, and international criminal law. As for the latter, the icc Statute lists for instance outrage upon personal dignity as a war crime in non-international armed conflicts [art. 8(2)(c) icc Statute], which applies to dead persons [footnote 57 icc Elements of Crimes; see: Outrage upon Personal Dignity]. ihl obligations with regard to the dead are mainly positive. The extent to which they have to be carried out by the parties to the conflict is thus of paramount importance. There may be some uncertainty as to the temporal scope of these obligations, since, for instance, the search for the dead must be carried

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out “at all times” [art. 15(1) gci]. The possibility of limitations pursuant to military considerations [see: Military Necessity] or other circumstances such as hygiene or weather conditions may generate further uncertainty [see: Public Health and Hygiene]. For example, the obligation to bury a person individually is not absolute since mass graves are not completely prohibited. Similarly, the obligation to search for the dead is applicable to all the persons fallen on the battlefield, without distinction, but the wording “shall […] take all possible measures” and “as far as military considerations allow” indicates that this is an obligation of means, not of result [art. 15(1) gci; art. 16(2) gciv]. Nevertheless, it is questionable whether parties to a conflict might not be tempted to eschew this obligation due to the realities of war, such as because of permanent hostilities in certain zones. It is noteworthy that, even when a party is not required to search itself for the dead, it must at least facilitate the access of humanitarian organizations to the areas under its control. This may imply the need to accept or negotiate a cease-fire [see: Armistice]. Anne-Laurence Graf-Brugère – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

D. Gavshon, ‘Chapter 14. The Dead’, in Clapham, A., Gaeta, P., Sassòli, M. (eds.), The 1949 Geneva Conventions – A Commentary (2015).

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

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

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like deportations in Article 49 gciv and unlike transfers in Article 49 gciv. In this regard, the icrc Commentary confirms that the concept of transfer under Article 45 gciv is to be interpreted in a very broad sense, as including “any movement of protected persons to another State, carried out by the Detaining Power on an individual or collective basis […]” [1958 icrc Commentary gciv, p. 266]. Nonetheless, by arguing that nothing in Article 45 gciv seems to suggest that deportation – in the sense of expulsion – is to be regarded as a form of transfer, the icrc Commentary also considers that this provision would allow States to simply evade their obligations under gciv, by claiming their right to expel individuals in those cases where State security so requires [1958 icrc Commentary gciv, p. 266]. Although the terminology used at the international level is not always uniform and may, sometimes, lead to some confusion, such a restrictive interpretation contradicts the rationale of Article 45 gciv and should, therefore, be abandoned. Accordingly, mass expulsions may be permissible in very exceptional circumstances, such as where the existence of a State is otherwise seriously endangered and, in any case, they must not be discriminatory or violate fundamental rights. In the third scenario (non-international armed conflict), while Common Article 3 GCs is silent on forced displacement, Article 17 apii, at paragraphs (1) and (2) respectively, distinguishes between internal and external displacements. Furthermore, the different wording used to describe the two scenarios (“ordered” on the one hand and “compelled” on the other) seems also to differentiate between the modalities of displacement. In this respect, whereas paragraph (1) refers to some sort of direct relocation, paragraph (2) seems to cover indirect forms of displacement, such as those determined by destruction of the environment or exhaustion of living resources [see: Environment; Attacks against Objects Indispensable to the Survival of the Civilian Population]. If compared to Article 49 gciv, the proscription of apii is characterised by some peculiarities. In particular, Article 17(1) apii provides that: “[t]he displacement of the civilian population shall not be ordered for reasons related to the conflict […]”. Apart from the difference in wording (the notion of “protected persons” in gciv is replaced by the expression “civilian population” and the concepts of “transfer” and “deportation” are reduced to the indefinite term “displacement”), the extent of paragraph (1) appears narrower, as the prohibition is on “ordering” displacement, rather than the displacement itself. However, practice seems to support the interpretation that no order is necessary for a violation of Article 17 apii to materialize [J. Willms, ‘Without Order, Anything Goes? The Prohibition of Forced Displacement in Non-International Armed Conflict’, 91(875) irrc (2009)]. Furthermore, the proscription only entails displacements “ordered for reasons related to the conflict”, thereby questionably tolerating relocation of civilians for any other economic, political, or demo-

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graphic motivations that are not (apparently) connected with the conflict (the removal of civilians from areas rich in minerals or oil could be an example) [Chetail, p. 1206]. As for paragraph (2), the provision prohibits the act of compelling civilians to leave their own territory for reasons connected with the conflict. Although the icrc Commentary suggests that the expression “their own territory” has to be understood as referring to the territory under the control of belligerents, the latter interpretation appears redundant in view of the protection already enshrined in paragraph (1). Accordingly, the provision would better serve its purpose if considered as relating to the territory of the State [Chetail, p. 1208]. ihrl has considerably integrated and reinforced the protection of persons from being unlawfully displaced [arts. 12–13 iccpr; art. 20–22 Arab Charter on Human Rights; art. 22 achr; arts. 2–4 Protocol 4 echr; art. 12 achpr]. The same holds true for international refugee law [arts. 26, 32–33 Refugee Convention; see: Refugee Law; Non-Refoulement]. Deportation or transfer of civilians are also included among the grave breaches of the GCs [art. 147 gciv; art. 85(4) api; see: Grave Breaches] and they have been defined as war crimes and crimes against humanity under international criminal law [arts. 7(1)(d), 8(2)(a)(vii), 8(2)(b)(viii), 8(2)(e)(viii) icc Statute; arts. 2(g), 5(d) icty Statute; art. 3(d) ictr Statute; art. 2(d) scsl; arts. 13(1)(d), 14(1)(a)(vii), 14(1)(b)(viii) Law on the Specialist Chambers and Specialist Prosecutor’s Office]. In this respect, it is worth mentioning that deportation, as crime against humanity, has been the subject of an unprecedented request filed by the ICC Chief Prosecutor under Article 19(3) ICC Statute. In her motion of 9 April 2018, the Prosecutor, focusing on the cross-border nature of deportation, has asked the Pre-Trial Chamber to rule on whether the Court has jurisdiction "over the alleged deportation of the Rohingya people from Myanmar to Bangladesh" [Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC, Office of the Prosecutor, para. 1]. The issue is of utmost importance, as it revolves around the fundamental question of whether the ICC may exercise territorial jurisdiction over actions committed by a non-State party to the Rome Statute - Myanmar - and carried over onto the territory of a State Party - Bangladesh. Lastly, it should be noted that forced displacement is not necessarily a crime under international law. Indeed, in both international and non-­ international armed conflicts, State practice establishes an exception to the prohibition of displacement, in cases where “the security of the civilians involved or imperative military reasons” require the total or partial evacuation of a given area [rule 129 icrc Customary ihl Study]. This exception is contained in Article 49(2) gciv and Article 17(1) apii. It is also provided for

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in ­numerous military manuals, as well as in the legislation of many States. In such circumstances, evacuation must be temporary and must be carried out in such a manner as to ensure the return of protected persons as soon as the situation allows [see: Evacuation]. This exception, however, does not apply to Article 49(6) gciv [see: Transfer by the Occupying Power of its Own Population], as the rule contained therein is couched in strict terms and admits no derogations. Federica Pira – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta, M. Sassòli, The 1949 Geneva Conventions: A Commentary (2015). M. Jacques, Armed Conflict and Displacement – The Protection of Refugees and ­Displaced Persons under International Humanitarian Law (2012).

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

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

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

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

cicr, Proceedings of the Bruges Colloquium – Detention in Armed Conflict (2014). L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016).

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

Deprivation of Liberty, Treatment

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honour of detainees [art. 14 gciii; art. 27 gciv], maintenance of detainees and medical attention [art. 15 gciii; arts. 76, 81 gciv], and the prohibition of torture or other forms of coercion during interrogations [art. 17 gciii; arts. 31, 32 gciv; art. 75(2)(a)(ii) api]. In non-international armed conflict, Common Article 3 GCs also provides for humane treatment without any adverse distinction [see: Common Article 3]. This includes the prohibition of “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment” [see: Wilful Killing and Murder; Physical Mutilation; Inhuman Treatment; Torture; Hostages; Outrage upon Personal Dignity]. Those prohibitions apply to all persons taking no active part in the hostilities, and hence also to persons deprived of their liberty [see: Direct Participation in Hostilities]. apii also reinforces the obligation of humane treatment [art. 4 apii] and contains additional safeguards specifically designed to protect detainees, particularly their physical and mental health [art. 5(2) apii]. In general, customary ihl has harmonized the protection: the prohibition of adverse distinction in treatment, murder, torture, cruel or inhuman treatment and outrages upon personal dignity, corporal punishment, mutilation, medical or scientific experiments, rape and other forms of sexual violence, or slavery are considered to be customary rules applicable in international armed conflict and non-international armed conflict [rules 88–94 icrc Customary ihl Study]. Additional rules exist to protect more specifically those subjected to internment: while persons facing prosecution are usually protected under the domestic law of the detaining State, it was considered necessary for ihl to ensure a high degree of protection during internment, a form of deprivation of liberty not necessarily envisaged in domestic legal systems. As a consequence, detailed rules exist for prisoners of war and civilian internees in international armed conflict, in order to ensure adequate material conditions of internment. For instance, as far as the place of internment is concerned, prisoners of war may only be detained on land, in premises “affording every guarantee of hygiene and healthfulness” [art. 22 gciii], and away from the combat zone [art. 23 gciii]. Similar provisions also exist for civilian internees [arts. 83, 85 gciv]. Quarters housing prisoners of war shall present conditions “as favourable as those for the forces of the Detaining Power who are billeted in the same area” [art. 25 gciii]. Internees and prisoners of war shall not be accommodated together, and shall be separated also from persons detained for other reasons [art. 84 gciv]. Other rules provide for adequate food and clothing [arts. 26, 27 gciii; arts. 89, 90 gciv] and for adequate hygiene and medical attention [Part iii, Section ii, Chapter iii gciii; Part iii, Section iv, Chapter iv gciv].

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While prisoners of war may be employed by the detaining power, their labour is strictly regulated [Part iii, Section iii gciii]. Civilian internees, however, may only be employed if they so desire [art. 95 gciv]. Lastly, disciplinary measures are strictly regulated by ihl for both prisoners of war and civilian internees [arts. 89–98 gciii; arts. 117–126 gciv]. Provisions similar to those applicable in international armed conflict can be found, although with a lesser degree of detail, in non-international armed conflict. For instance, detainees shall “to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict” [art. 5(1)(b) apii]. Furthermore, detainees in non-international armed conflict shall not be kept close to the combat zone [art. 5(2)(c) apii]. It has to be noted that these provisions apply to all persons whose liberty has been restricted, whether interned or detained [art. 5(1) apii]. In the case of both prisoners of war and protected civilians, gciii and gciv each consider that “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health” are grave breaches [art. 130 gciii; art. 147 gciv; see: Grave Breaches; Wilful Killing and Murder, Torture; Inhuman Treatment; Medical or Scientific Experiments; Wilfully Causing Great Suffering or Serious Injury to Body or Health]. In both international and non-international armed conflict, ihl contains additional provisions specifically aimed at protecting those considered as more vulnerable. This is the case for the sick and wounded, which shall be respected, protected and cared for [art. 14 gci; art. 16 gcii; arts. 30, 47 gciii; arts. 16, 91 gciv; common art. 3 GCs; art. 7 apii; see: Wounded and Sick]. Women, and in particular pregnant women and mothers of young children, are also afforded special protection [arts. 89, 98 gciv; see: Women]. When detained, women shall be accommodated in separate quarters and provided with separate conveniences [arts. 25, 29 gciii; arts. 76, 85, 124 gciv; art. 75(5) api; art. 5(2)(a) apii]. This is not applicable when interning or detaining families, which shall be lodged together [art. 82 gciv; arts. 75(5), 77(4) api; art. 5(2) (a) apii]. Children shall also receive all the attention and care they need [see: Children]. They must receive an appropriate education and, when under 15 years of age, cannot be recruited in the armed forces of a State or an armed group or participate in hostilities [see: Child Soldiers]. Those provisions apply to all children, including those that may have been captured or are being detained for any other reason [art. 4 apii].

Derogation

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Detainees shall also benefit from certain communication rights. They shall be allowed to send and receive correspondence [art. 71 gciii; arts. 25, 107 gciv; rule 125 icrc Customary ihl Study]. Even when under disciplinary measures, prisoners of war and civilian internees shall retain such right to correspond with their relatives [art. 98 gciii; art. 125 gciv]. Finally, it should be noted that some derogations do exist, but only in very clear and delineated circumstances [see: Derogation]. In the territory of a party to an international armed conflict, protected persons definitely suspected of or engaged in activities hostile to the security of the State may be deprived of some rights and privileges, when they would be prejudicial to the security of such State. In occupied territories, spies and saboteurs [see: Spies; Saboteurs], as well as other persons definitely suspected of hostile activity, forfeit their rights to communication when detained. Anne Quintin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

icrc, Strengthening International Humanitarian Law Protecting Persons Deprived of Liberty – Concluding Report (2015). N. Melzer, International Humanitarian Law: A Comprehensive Introduction (2016), pp. 195–205.

Derogation. Contrary to the derogation clause provided for in the main human rights treaties [see: International Human Rights Law], there is no general clause in ihl that enables parties to the conflict, in case of emergency situations threatening their security and existence, to derogate to a certain extent from rights that civilians and combatants enjoy under the GCs and APs. The primary reason is that ihl has in itself been conceived as the law specifically applicable in situations of war, which is the most paramount threat to the very existence of a State. A specific derogation clause is however found in Article 5 gciv, which concerns most notably the rights of communication of a captured spy [see: Spies], saboteur [see: Saboteurs] or any other protected person [see: Protected Persons] detained because he or she is considered a danger for the security of the State. Besides the preliminary discussions regarding gciv, the issue of derogation arose after the adoption by the Stockholm Conference (1948) of a definition of protected persons covering persons committing hostile acts without being

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members of regular armed forces. Some rights afforded to them were deemed inadequate to the nature of espionage, in particular the rights to communicate with the outside world. Nevertheless, the main aim of the introduction of Article 5 in gciv might have been to set limits to derogations rather than to permit them. Article 5 gciv allows derogations with regard to someone definitely suspected or engaged in hostile acts, who is a protected person within the meaning of Article 4 gciv [see: Civilians]. Prisoners of war are not protected persons under gciv, because they are protected by gciii [see: Prisoners of War]. Thus, even though spies caught in the act by the enemy do not have the right to prisoner of war status [see: Protected Persons; Spies], Article 5 gciv makes clear that spies who satisfy the nationality criterion of Article 4 gciv are protected by gciv. The same applies to saboteurs and persons engaged in acts hostile to the State’s security, who do not benefit from prisoner of war status insofar as they act clandestinely without wearing an uniform. In this regard, Article 5 gciv confirms that unlawful combatants do not fall outside the scope of gciv [see: Combatants]. This is, indeed, the main function ascribed to this provision nowadays. According to Article 5 gciv, derogations are to be decided on an individual basis and cannot be based on a mere suspicion of a hostile activity or an “individual’s political attitude towards the State” [Judgment, Delalić et al., icty, Trial Chamber, para. 567]. Moreover, derogations are limited in their scope to the rights of communication in occupied territory (for States parties to api, Article 45(3) api even restricts the derogations from rights of communication to detained spies only) and, in the territory of a party to the conflict, to the rights that would, if exercised, be prejudicial to the security of the State. Derogations are also limited in their extent to what absolute military necessity requires in occupied territory and, in the territory of a party to the conflict, to what is necessary and proportionate. The criteria for derogations are stricter in occupied territory, because of the understanding that the population would do whatever is in its power to embarrass the invading forces [see: Occupation]. The principles of necessity and proportionality imply that derogations have to be terminated as soon as the danger ceases to exist [art. 5(3) gciv]. Furthermore, with regard to derogations in the home territory of a party to the c­ onflict, only the rights that could be effectively (ab)used by the detained person, in a way prejudicial to the State security, can be derogated from. As in occupied territory, these are mostly the rights to communicate with the outside world to prevent sensitive information on military infrastructure to be conveyed to the enemy. In this regard, it is questionable whether a civilian having unlawfully taken up arms should be deprived of her or his rights of communication when

Deserters

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detained in the home territory of a party to the conflict [see: Direct Participation in Hostilities]. Indeed, in the latter situation, nothing would seem to be prejudicial to the security of the State if the person receives visits and correspondence (in occupied territory, this person would actually not be deprived of her or his rights of communication under Article 45(3) api). Derogations are not meant as a form of punishment. For this reason, Article 5(3) gciv provides that no derogation may affect the humane treatment that shall be given to the protected persons in the hands of a party to the conflict and, in case of trial (for espionage, sabotage, terrorism, or unlawful participation to the hostilities), the right to a fair and regular trial [see: Fair Trial; Inhuman Treatment]. For example, the right to be assisted by counsel implies that counsel must be able to visit freely the accused [art. 72 gciv] and, therefore, such visits cannot be considered as a right of communication that could be derogated from pursuant to Article 5 gciv. There is no derogation clause equivalent to Article 5 gciv in ihl applicable to non-international armed conflicts. Nevertheless, rights of communication of persons deprived of liberty in relation to a non-international armed conflict can be limited (but not derogated from) if deemed necessary [art. 5(2) apii; see Deprivation of Liberty]. Anne-Laurence Graf-Brugère – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

B. Baxter, ‘So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs’, 28 British Year Book of International Law (1951). R. Gehring, ‘Loss of Civilian Protections under the Fourth Geneva Convention and Protocol i’, 90 Mil. L. Rev. (1980). A.-L. Graf-Brugère, ‘Chapter 54. The Derogation Clause’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015).

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

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duty or to shirk important service; or (3) without being regularly separated from a branch of U.S. military, joins another branch or enters into a foreign armed service [art. 85(a) Uniform Code of Military Justice]. This definition is similar to those found in other military criminal codes, although some require a minimum period of unauthorised absence [art. 100 Wetboek van Militair Strafrecht (The Netherlands); art. 8 British Armed Forces Act 2006 (U.K.); art. L321-2 Code de Justice Militaire (France)]. Desertion should be distinguished from the lesser and separate offence of absence without leave, the latter not requiring an intent to permanently leave an armed force or to be absent for a minimum period of time [art. 86 Uniform Code of Military Justice (U.S.); art. 9 British Armed Forces Act 2006 (U.K.); art. 15 Wehrstrafgesetz (Germany)]. Desertion can be punished by a fine, but usually carries a sentence of imprisonment, which is higher if committed during wartime or abroad. It may also incur a death penalty. In the context of multinational or peacekeeping forces [see: Peacekeeping], military discipline and duties of individual members of the armed forces remain within the remit of the national force taking part in such an operation and the national rules on desertion, thus, continue to apply too. However, desertion from a non-State armed group is not possible in law as only States can require conscription. Desertion becomes relevant for ihl only in specific situations. In case of desertion to enemy forces, it has been argued that the status of the deserter depends on the circumstances of the desertion. A deserter who falls into the power of the enemy must be granted prisoner of war status under gciii [H.  Niebergall-Lackner, Status and Treatment of Deserters in International Armed Conflicts (2016), pp. 141–143, 146–147; see: Prisoners of War]. Where a person places himself into the power of the enemy, the condition stipulated in Article 4 gciii and Article 44(1) api of “having fallen into the power of the enemy” is not fulfilled and the deserter should be afforded protection under gciv [Niebergall-Lackner, pp. 138–141, 146–147]. Since the GCs and APs are silent on the question of desertion, there appears to be insufficient clarity in the law. However, it is certainly acceptable that each case of desertion should be analysed with regard to circumstances in which it has taken place and that, in any event, a deserter under the authority of the enemy power should be afforded either prisoner of war status under gciii or the status of a protected person under gciv [see: Protected Persons]. Furthermore, the unhcr has explained that, with regard to desertion to a third country, a person who refuses to undertake military service, because of a well-founded fear of individual persecution, may be eligible for refugee status in a number of overlapping situations: (1) conscientious objection, depending

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also on the availability of alternative military service in the relevant State; (2) objection based on the legality of an armed conflict or on the means and methods of warfare involving a risk of a deserter committing an international crime; (3) harsh conditions of State military service amounting to cruel treatment or torture; and (4) unlawful child recruitment. It should be noted that desertion due to dislike of military service or fear of combat does not afford such a right [unhcr, Guidelines on International Protection No. 10]. Amir Čengić – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

E. Afsah, ‘Deserters’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012). H. Niebergall-Lackner, Status and Treatment of Deserters in International Armed Conflicts (2016).

Detention; see: Deprivation of Liberty Direct Participation in Hostilities. In ihl, the notion of direct participation in hostilities refers to conduct which, if carried out by civilians, suspends their protection against direct attack and the dangers arising from military operations [art. 51(3) api; art. 13(3) apii]. Most notably, for such time as they directly participate in hostilities, civilians may lawfully be attacked as if they were combatants. Derived from Common Article 3 GCs, the notion of taking a direct or active part in hostilities is found in many provisions of ihl. However, treaty ihl does not provide a definition of direct participation in hostilities, nor can a clear interpretation of the notion be derived from State practice or international jurisprudence. 1. Who is a Civilian For the Purposes of the Principle of Distinction? It is important to distinguish members of State armed forces or of organized armed groups, whose continuous function it is to conduct hostilities on behalf of a belligerent party, from civilians, who do not directly participate in ­hostilities, or who do so on a merely spontaneous, sporadic, or unorganized basis. For the purposes of the principle of distinction, only the latter qualify as civilians [see: Distinction]. Treaty law governing international armed conflict defines civilians negatively as all persons who are neither members of the armed forces of a party to

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

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2. What Conduct Amounts to Direct Participation in Hostilities? Under ihl, civilians are entitled to protection against direct attack unless and for such time as they directly participate in hostilities [see: Attacks against Civilians and Persons Hors de Combat]. While the concept of hostilities refers to the collective resort by parties to an armed conflict to means and methods of warfare [art. 35(1) api; art. 22 Hague Regulations], participation in hostilities refers to the individual involvement of a person in these hostilities [arts. 43(2), 45(1), (3), 51(3), 67(1)(e) api; art. 13(3) apii]. Depending on the quality and degree of such involvement, individual participation in hostilities may be described as direct or indirect. While direct participation refers to specific hostile acts carried out as part of the conduct of hostilities between belligerent parties and leads to loss of protection against direct attack, indirect participation may contribute to the general war effort, but does not directly harm the enemy and, therefore, does not entail loss of protection against direct attacks. According to the icrc’s Interpretive Guidance, any act amounting to direct participation in hostilities must meet three cumulative requirements: a) Threshold of harm. For a specific act to qualify as direct participation in hostilities, the harm likely to result from it must attain a certain threshold. This threshold is reached, most notably, whenever the military operations or capacity of a party to an armed conflict are adversely affected, for example through the use of weapons against the armed forces, or by impeding their military operations, deployments, or supplies. Where no military harm is caused, the required threshold of harm can also be reached by inflicting death, injury, or destruction on persons or objects protected against direct attack. For example, the shelling or bombardment of civilian residential areas, sniping against ­civilians, or armed raids against refugee camps may constitute part of the hostilities, even though they would not necessarily cause direct military harm to the enemy. Direct participation in hostilities does not require the actual ­materialization of harm, but merely the objective likelihood that the conduct in ­question will result in such harm. Therefore, the relevant threshold determination must be based on likely harm, that is to say, harm which may reasonably be expected to result from an act in the prevailing circumstances. b) Direct causation. Not every conduct likely to cause the required threshold of harm necessarily amounts to direct participation in hostilities. ­Throughout history, the civilian population has always contributed to the general war effort, whether through the production and supply of weapons, equipment, food, and shelter, or through financial, administrative, and political support. In order to qualify as direct rather than indirect participation in hostilities, however, there must be a direct causal relation between the act in question and the resulting harm. In this context, direct causation should be interpreted to mean that the

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harm is brought about in one causal step. Accordingly, acts that merely build or maintain the capacity of a party to harm its adversary in unspecified future operations do not amount to direct participation in hostilities, even if they are connected to the resulting harm through an uninterrupted chain of events and may even be indispensable to its causation, such as the production of weapons and ammunition or general recruiting and training of personnel. The notion of direct participation in hostilities can also include acts which cause harm only in conjunction with other acts, namely where the act in question is an integral part of a coordinated tactical operation that directly causes the required threshold of harm. In addition, measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act. c) Belligerent nexus. In order to amount to direct participation in hostilities, the conduct of a civilian must not only be objectively likely to inflict harm meeting the first two criteria, but it must also be specifically designed to do so in support of a party to an armed conflict and to the detriment of another (belligerent nexus). Belligerent nexus relates to the objective design of an act as part of the hostilities and does not necessarily have to reflect the subjective intent of every participating individual. Armed violence that is not designed to harm a belligerent party, or that is not designed to do so in support of another party, cannot amount to participation in hostilities taking place between these parties. For example, as a general rule, civilian violence remains of nonbelligerent nature if it is used: (a) in exercise of authority over persons in the power of a belligerent party (e.g. the use of force against prisoners); (b) as part of civil unrest against such authority (e.g. violent demonstrations or riots); (c) in individual self-defence against violence prohibited by ihl (e.g. civilians defending themselves against marauding soldiers); (d) during inter-civilian violence (e.g. uncontrolled looting due to breakdown of law and order); or (e) for reasons otherwise unrelated to the conduct of hostilities (e.g. murder, arson, or other violent crimes carried out for non-belligerent motives). Where armed violence lacks belligerent nexus, it remains an issue of law and order, even if it occurs in the wider context of an armed conflict. Therefore, any resort to force in response to such violence must comply with international standards governing law enforcement operations [see: Law Enforcement; International Human Rights Law]. 3. What Modalities Govern the Loss of Protection against Direct Attack? Once a civilian has lost protection against direct attack, questions arise as to the modalities governing the loss of protection against direct attack.

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a) Temporal scope of loss of protection. Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. Where preparatory measures and geographical deployments or withdrawals constitute an integral part of a specific hostile act, they extend the beginning and end of such act beyond the phase of its immediate execution. This temporary loss of protection, which is designed to respond to spontaneous, sporadic, or unorganized hostile acts carried out by civilians, must be distinguished from the continuous loss of protection entailed by membership in State armed forces or organized armed groups belonging to the belligerent parties. Members of such forces or groups lose protection for as long as their membership lasts, regardless of whether membership must be determined based on formal (regular armed forces) or functional (organized armed groups) criteria. b) Precautions and presumptions in situations of doubt. In practice, civilian direct participation in hostilities is likely to entail significant confusion and uncertainty in the implementation of the principle of distinction. In order to avoid erroneous or arbitrary targeting, all feasible precautions must be taken in determining whether a person is a civilian and, if so, whether he or she is directly participating in hostilities. As lawful attacks always require positive identification of a legitimate target, persons must be presumed to be protected in case of doubt. c) Restraints on the use of force against legitimate military targets. Loss of protection against direct attack does not mean that the persons concerned fall outside the protection of the law altogether. It is a fundamental principle of ihl that “the right of belligerents to adopt means of injuring the enemy is not unlimited” [art. 22 1907 Hague Regulations; art. 35 api]. Indeed, even attacks against legitimate military targets are subject to legal constraints. Most importantly, any military operation must comply with the provisions of ihl governing the conduct of hostilities, which prohibit or restrict certain means and methods of warfare [see: Hostilities, Conduct of]. Moreover, in conjunction, considerations of military necessity and humanity require that no more death, injury, or destruction be caused than is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances [see: Humanity; Military Necessity]. Thus, while operating forces can hardly be required to take additional risks for themselves or the civilian population in order to capture an armed adversary alive, it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender, where the circumstances are such that there manifestly is no necessity for the use of lethal force. d) Consequences of regaining protection against direct attack. ihl neither prohibits nor privileges civilian direct participation in hostilities. In

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the absence of such prohibition, civilian direct participation in hostilities does not, in and of itself, constitute a war crime. However, in the absence of combatant privilege as granted to members of State armed forces in international armed conflicts, civilians having directly participated in hostilities remain subject to prosecution for any crime under domestic law, which they may have committed during their participation. Thus, when civilians cease to directly participate in hostilities, or when members of organized armed groups belonging to a non-State party to an armed conflict cease to assume their continuous combat function, they regain full civilian protection against direct attack. This does not rule out prosecution for any crime they may have committed and, where necessary to secure their arrest, proportionate force may be used against them in accordance with law enforcement standards. 4. Conclusion Today, more than ever, renewed efforts must be made to spare the civilian population from erroneous or arbitrary targeting. To that end, it is of the utmost importance to provide belligerents with practice-oriented guidance as to how to apply the principle of distinction in the challenging circumstances of contemporary warfare. This requires reliable and convincing responses to the questions of who is considered a civilian in the first place, what conduct amounts to direct participation in hostilities, and what modalities govern the ensuing loss of protection against direct attack. It is to be hoped that the above considerations, which correspond to the conclusions and recommendations reflected in the icrc’s Interpretive Guidance, will contribute to ensuring that those who do not take a direct part in hostilities receive the humanitarian protection they are entitled to under ihl. Nils Melzer – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or any other institution the author is or has been affiliated with Bibliography

icrc (N. Melzer), Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009). Forum, Direct Participation in Hostilities, 42(3) N.Y.U. J. Int’l L. & Pol. (2010).

Disability. Persons with disabilities are identified as vulnerable and in need of special protection in ihl. The GCs and two APs refer to persons with disabilities by means of various, at times derogatory, designations, such as the ­“infirm”

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[art. 17 gciv], “disabled”, persons with “mental disease”, “the blind” [art. 30 gciii], and “wounded and sick”. The protections afforded to persons with disabilities under ihl mainly fall under the provisions for the treatment of the wounded and sick [see: Wounded and Sick]. The expression wounded and sick accommodates a wide range of medical conditions, and should be interpreted broadly [2016 icrc Commentary gci, para. 1342]. It would most certainly include persons with a physical impairment, such as an amputee. Persons with psychological conditions, including post-traumatic stress disorder, would also be considered wounded or sick, provided that these conditions require medical care. However, a large number of persons with disabilities whose impairment does not require medical care, such as a person with an intellectual impairment, would not receive the legal protection of the wounded and sick. Terminology such as “mental disease”, “infirm” and “blind” adopted in the GCs and the two APs reflects a medicalised approach to disability, which views persons with disabilities as abnormal and in need of “fixing”, to reach “normality” and to be able to participate in society again. Aside from the fact that these terms ignore the social structures, which are an inherent part of disability, such as lack of social support for persons with disabilities, they also serve to dehumanise persons with disabilities by categorising them solely according to their impairments, which can lead to stigmatization and disempowerment. The 2006 UN Convention on the Rights of Persons with Disabilities (crpd) brought a paradigm shift in how persons with disabilities are viewed, by adopting a human rights based approach that focuses on the removal of barriers that hinder the ability of persons with disabilities to enjoy all their human rights on an equal basis with others. It exhorts all States to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” [art. 1 crpd]. The crpd does not attempt to explicitly define disability as it is an evolving concept [Preamble crpd]. Article 1 crpd states: “[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. The crpd rejects the medical approach and adopts a social model for understanding disability, which recognizes the interaction between a person’s condition and environmental factors. According to the social model, lack of accommodation impedes the individual’s ability to access society on an equal basis with others and inequality is not due to the impairment, but due to the failure to eliminate the barriers that are preventing a person with an impairment from accessing society.

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The crpd is unusual among the core human rights treaties in that it explicitly invokes ihl alongside ihrl in armed conflict and other humanitarian emergencies. Article 11 crpd requires that States parties “take, in accordance with their obligations under international law, including ihl and ihrl, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”. This provision, thus, requires States parties to abide by all their human rights and ihl obligations owed to persons with disabilities during situations of armed conflict. Where there are perceived clashes between these bodies of law, they are best resolved by reading ihl through a crpd lens. Take the treatment of a prisoner of war with a psychosocial disability as an example [see: Prisoners of War]. gciii states that “[i]solation wards shall, if necessary, be set aside for cases of […] mental disease” [art. 30 gciii]. Aside from the terminology “mental disease” being derogatory and not in conformity with the human rights based approach, Article 14 crpd expressly states that “the existence of a disability shall in no case justify a deprivation of liberty” and prohibits all discrimination based on disability within places of detention [Guidelines on Article 14 of the crpd, Committee on the Rights of Person with Disabilities, para. 4]. Separating prisoners of war based on an intellectual or psychosocial disability would constitute unlawful discrimination [see: Non-Discrimination]. Furthermore, placing a detainee in isolation owing to his or her mental impairment has in certain circumstances been found to amount to inhuman and degrading treatment [Report, Victor Rosario Congo v. Ecuador, IACmHR, paras. 58–59; see: Inhuman Treatment; Humiliating and Degrading Treatment]. In sum, unsurprisingly considering their time of drafting, the GCs and APs adopt a paternalistic approach to persons with disabilities. Persons with disabilities are considered in need of protection and not as rights-holders. The paternalistic approach has been superseded by the social model understanding of disability and the human rights-based approach enshrined in the crpd. Alice Priddy – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

M. Crock, N. Hart, R. McCallum, ‘War, Law and Disability: Ensuring Equality in Situations of Crisis’, in D. Mitchell, V. Karr (eds.), Crises, Conflict and Disability: Ensuring Equality (2014). J. Lord, ‘Persons with Disabilities in International Humanitarian Law – Paternalism, Protectionism or Rights’, in H. Gill, C. Schlund-Vials (eds.), Disability, Human Rights and the Limits of Humanitarianism (2014).

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

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constrained by the lack of certain procedural and judicial guarantees associated with criminal prosecution [art. 75(3)-(4) api; see: Fair Trial]. Following a summary disciplinary proceeding, available punishments are accordingly relatively modest: e.g. confinement to barracks, extra duties, or short periods of incarceration. In contrast, in most systems, a court martial may deliver punishment up to the level of life imprisonment. Both types of punishment are aimed at specifically deterring the offender, while simultaneously sending a message of general deterrence to the armed forces writ large regarding the importance of compliance. In order to effect a change of behaviour reflecting ihl compliance, a State’s disciplinary and penal legislation must accurately integrate the sanctions foreseen in the GCs and other treaties to which it is party, in addition to applicable sanctions recognized by customary international law. When serious violations of ihl are committed, the State is then under an obligation to apply sanctions within its domestic military or civilian justice systems that are appropriate, effective, and reflective of the underlying international law – all the while reflecting fair trial guarantees. Non-State armed groups do not generally have access to a formal military justice system and it is questionable whether such a system, unhinged from State accountability, may ever meet the procedural and judicial guarantees required by customary ihl [rule 100 icrc Customary ihl Study; see: Regularly Constituted Courts]. However, the law must similarly be integrated into the instruments driving their operations and into their disciplinary structures. This may take the form of a code of conduct containing the essential ihl rules governing detention and the conduct of hostilities, and giving it the force of an order. As such, their field disciplinary systems tend to encompass more serious offences, with consequences for fundamental justice. Andrew Carswell – the views expressed are those of the author alone and do not necessarily reflect those of the ICRC Bibliography

A. Carswell, ‘Converting Treaties into Tactics on Military Operations’, 96(895–896) irrc (2014). A.-M. Larosa, ‘Sanctions as a Means of Obtaining Greater Respect for Humanitarian Law: a Review of their Effectiveness’, 90(870) irrc (2008).

Dissemination. The notion of dissemination refers to measures and efforts aimed at rendering the content of provisions of ihl known and understood [see: International Humanitarian Law]. In some contexts, the term promotion of ihl is used (very often as synonym for dissemination), which ­sometimes

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emphasises soliciting the acceptance and application of ihl provisions. Dissemination activities encompass both treaty and customary ihl provisions and extend to existing law and law in formation, while further provisions and issues which are not, not sufficiently, or not yet regulated might be indicated and explained. The starting point for dissemination activities is the recognition that application and observance of ihl cannot be expected when its rules are not known by those who have to apply and observe them. Spreading knowledge of ihl and awareness of the protection provided by the emblem of the red cross/red crescent/red crystal is the major object of dissemination activities [see: Emblem]. On a broader scale, dissemination aims at informing about the significance and meaning of ihl for domestic and international relations in the sphere of safety and security. Dissemination measures and activities imply advocacy for compliance with existing ihl, as well as its implementation [see: Implementation], enforcement, and further development. As ihl is legally binding essentially on parties to international and non-international armed conflicts, States, members of their armed forces, and civilians directly participating in hostilities are the initial actors and target groups of dissemination with a view to regulating the conduct of hostilities. This is reflected both in treaty and in customary ihl. For international armed conflicts, States parties to the GCs and APs are obliged to “undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries” [art. 47 gci; art. 48 gcii; art. 127 gciii; art. 144 gciv; art. 83 api]. Article 83 api further specifies that States parties are to “include the study [of the GCs and api] in their programmes of military instruction and to encourage the study thereof by the civilian population”. For non-international armed conflicts, the treaty law obligation is less specific in that Article 19 apii only provides that “this Protocol shall be disseminated as widely as possible”. Common Article 3 GCs does not contain an equivalent obligation. It is therefore a regrettable fact that customary ihl is rather specific on the one hand, but considerably less comprehensive on the other hand in that Rule 142 of the icrc Customary ihl Study determines that “States and parties to the conflict must provide instruction in international humanitarian law to their armed forces” and Rule 143 of this study provides that “States must encourage the teaching of international humanitarian law to the civilian population”. In addition to States as parties to ihl treaties and subjects of international law, both the icrc [see: International Committee of the Red Cross] and ­National Red Cross and Red Crescent Societies [see: International Red Cross and Red Crescent Movement] have a mandate to disseminate ihl. The Statutes of the International Red Cross and Red Crescent Movement, as adopted

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jointly by the States parties to the GCs and the components of the Movement, provide that one of the aspects of the role of the icrc is “to work for the understanding and dissemination of knowledge” of ihl and, additionally, “to prepare any development thereof” [art. 5(2)(g) Statutes]. National societies have a threefold mandate in the area of dissemination in that they disseminate ihl, “assist their governments in disseminating” ihl, and “take initiatives in this respect” according to Article 3(2) of these Statutes. In addition, according to this provision, they “cooperate with their governments to ensure respect for international humanitarian law and to protect the distinctive emblems”. Beyond members of the armed forces and the civilian population, the main target groups of dissemination, both for States as for the components of the International Red Cross and Red Crescent Movement, are decision-makers in the political and civil society sphere, police and peace-keeping officers, legal and medical communities, as well as the media and the general public. For components of the Movement, their staff and volunteers are further target groups in order to enhance their understanding of the legal, historical, and ethical roots and contexts of their activities and actions. Beyond ihl, components of the Movement disseminate the fundamental principles of the Movement – namely humanity, impartiality, neutrality, independence, voluntary service, unity and universality – and its ideals. Typical dissemination measures and activities are publications and reports, conferences and workshops, policy and position papers, as well as speeches and public statements. Although dissemination is an essential prerequisite for a regulation of ihl to be effective and to actually guide the behaviour of parties to an armed conflict, it is not a sufficient condition. As much as it is unlikely that a party to an armed conflict will apply and observe a rule of ihl which is not known, it is far from guaranteed that a provision will be applied and observed even when it is known and understood. For instance, debates on the lawfulness of conduct in recent armed conflicts have not featured arguments that the prohibitions of, for instance, direct attacks against civilians, the prohibition of starvation, or the obligation to direct operations only against military objectives would not have been known and understood. Parties to the armed conflict in Syria have similarly not claimed that the prohibition of the use of chemical agents is unknown or not sufficiently disseminated. Any dissemination measure is inadequate in relation to the desired result of compliance with ihl and, at the same time, indispensable and without alternative. Heike Spieker – the views expressed are those of the author alone and do not necessarily reflect the views of the German Red Cross or any other institution the author is affiliated with

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Bibliography

J. Chan, ‘Implementation of International Humanitarian Law’, 8(2) Asia Pacific Law Review (2000). D. Muñoz-Rojas, J.-J. Frésard, ‘The Roots of Behaviour in War: Understanding and Preventing ihl Violations’, 86(853) irrc (2004).

Distinguish, Obligation to; see: Combatants; Additional Protocol i; Guerrilla; Terrorist Organizations Distinction. The principle of distinction is one of the fundamental pillars of ihl and requires the parties to an armed conflict to distinguish between, on the one hand, combatants and military objectives at all times [see: Combatants; Military Objectives] and, on the other hand, the civilian population and civilian objects at all times [see: Civilians; Civilian Population; Civilian Objects; ­Protected Objects]. As a consequence, civilians and civilian objects can never be the object of an attack [rules 1–3, 7 icrc Customary ihl Study; see: ­Attacks against Civilians and Persons Hors de Combat]. Only combatants and ­military objectives are legitimate targets. This principle is applicable in international as well as non-international armed conflict. The principle of distinction has been qualified by the icj as one of the “intransgressible principles of international customary international law” and is to be seen as one of the “cardinal principles” of ihl [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, paras. 78–79; see: ­International Humanitarian Law, General Principles of]. It is enshrined in treaty law [arts. 48, 51 api; art. 13 apii; art. 8(2)(b)(i)-(ii) icc Statute], customary international law [Nuclear Weapons Advisory Opinion, para. 79; Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, paras. 100–127] and considered to be ius cogens [J.-F. Quéguiner, ‘The Principle of Distinction: Beyond an Obligation of Customary International Humanitarian Law’, in H. Hensel (ed.), The Legitimate Use of Military Force (2008), pp. 171–172]. The principle of distinction, like other core principles, dates back to the very early development of ihl. Differentiating between combatants and civilians is found in Islamic legal culture and medieval moral theology [S. Oeter, ‘Means and Methods of Warfare’, in D. Fleck (ed.), Handbook of International Humanitarian Law (2013), p. 122]. Further developed during the nineteenth century, it led to the establishment of the prohibition of indiscriminate warfare and its acceptance as customary international law [1987 icrc Commentary api, paras. 1823–1827; rules 1, 11 icrc Customary ihl Study; see: Indiscriminate

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­Attacks]. The first (although vague) codification that was found in the Lieber Code of 1863 required unarmed citizen to be spared “as much as the exigencies of war will admit” [art. 22 Lieber Code]. The 1907 Hague ­Regulations, while focused on the protection of personal property in war [art. 23 1907 Hague Regulations] and on the prohibition to bombard undefended localities [art. 25 1907 Hague Regulations], brought further codification. Despite the fact that the civilian population was targeted to a large extent during World War ii, and the unfortunate failure to incorporate the rule of distinction in the 1949 GCs, it was still accepted as reflecting customary international law during this time period [Oeter, p. 123]. Finally, the principle of distinction was properly ­codified in Article 48 api and Article 13 apii. Since then, the principle has been i­ ncluded in many other international law instruments, State military ­manuals (regardless of their ratification of the APs), national (penal) legislation, as well as in n ­ ational and international jurisprudence, confirming the principle as r­ eflecting customary international law [rule 1 icrc Customary ihl Study]. The rationale and purpose of the principle of distinction is to protect the ­civilian population from the effects of warfare. The principle, in its current form, is clear and straightforward, as it recognises only two categories to be ­distinguished under ihl, namely civilians and combatants. The principle of distinction, which is also a reflection of the two pivotal principles of ihl, namely military necessity and humanity [see: Military Necessity; Humanity], is also proof of their importance. Indeed, while combatants can be lawfully targeted in order to achieve military advantage, civilians must be spared and cannot be made the object of an attack, in accordance with the principle of humanity [see: Attacks against Civilians and Persons Hors de Combat]. The observance of the principle of distinction is crucial in upholding the aforementioned balance between military necessity and the principle of humanity in armed conflict. However, the evolution of armed conflicts has brought about many challenges. The growing number of non-international armed conflicts has led to an increase in the number of civilians directly participating in hostilities, as well as in the use of human shields, voluntary or not [see: Direct Participation in Hostilities; Human Shields]. Furthermore, the rise in asymmetric warfare emphasised issues such as dual-use objects [see: Asymmetric Warfare]. These examples highlight how the principle of distinction, while simple at its core, is highly complex and challenging to apply in practice, especially with the evolution of warfare. Due to its general and abstract formulation, it clashes with the complex requirements of combatant status, or with the conditions for civilians not to be participating in hostilities. In this regard, api is the first international treaty concretising such requirements for application in practice [Quéguiner, p. 161].

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In conclusion, the central aspect of the principle of distinction resides in the definition of the categories of persons and objects that can be lawfully targeted and attacked and of those which cannot. The most important step, therefore, is to define these categories with regard to persons and objects, and determine to which category they belong. Despite the efforts to define these terms in api, it is important to note that the definitions of combatants and prisoners of war found in Articles 43 and 44 api are not without controversy, and one of the reasons why States like the U.S. and Israel have not ratified api [see: Additional Protocol i]. Robert Heinsch – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 72 et seq. H.-P. Gasser, K. Dörmann, ‘Protection of the Civilian Population’, in D. Fleck (ed.), Handbook of International Humanitarian Law (2013). T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under International Humanitarian Law – Challenges of 21st Century Warfare (2014 and 2017). K. Ipsen, ‘Combatants and Non-Combatants’, in D. Fleck (ed.), Handbook of ­International Humanitarian Law (2013). J-F. Quéguiner, ‘The Principle of Distinction: Beyond an Obligation of Customary ­International Humanitarian Law’, in H. Hensel (ed.), The Legitimate Use of Military Force (2008).

Drones. A drone is a land, sea, or air vehicle that is remotely or automatically controlled. Contemporary drones come in all shapes and sizes and can perform a wide array of functions, including surveillance and employing both lethal and less than lethal force. For example, current aerial drones include some the size of insects, capable of short range surveillance operations within ­buildings, while others weigh seven tons, have a 100-foot wingspan, and are capable of remaining aloft for over 24 hours, flying over 10.000 miles, and firing missiles at ground based targets. While the number and type of ground, surface, and subsurface drones is rapidly growing, the public debate, and this entry, primarily focuses on military use of weaponized aerial drones. Drones date back to the late nineteenth century, when Serbian-American inventor Nikola Tesla demonstrated the use of radio frequencies to remotely control small devices. In 1898, the U.S. Patent Office approved Tesla’s patent application for his “Method and Apparatus for Controlling Mechanism of Moving Vessels or Vehicles”. Over the course of the twentieth century, militaries

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incorporated and expanded on Tesla’s concept of remote control, with the first aerial drone by the end of World War i and radio controlled bombs in World War ii. In the decades that followed, drones were equipped with cameras for use as reconnaissance platforms, and later a laser designator that illuminated a target that a manned aircraft could then attack. As drones became able to loiter, to remain in the air for much longer periods of time than manned aircraft, weaponizing drones offered military commanders increased operational capabilities. After the September 11th terrorist attacks, in November, 2001, the United States conducted the first armed drone strike in Afghanistan, purportedly killing a high level member of Al Qaida. This strike was the result of an armed drone flying above Afghanistan, but piloted by a U.S. Air Force officer not only on the ground, but thousands of miles away, in the United States. Since that first strike, drone technology and use have proliferated. As of this writing, in addition to the U.S., China, Iran, Iraq, Israel, Nigeria, Pakistan, South Africa, Turkey, and the United Kingdom have all employed weaponized aerial drones in armed conflict. By some estimates, at least ten other countries are developing armed drones, and some fifty other countries, and the UN, currently employ surveillance drones. The increased employment of armed drones has highlighted and heightened the tension between State transparency, about where and why deadly force is used and the need for States to retain operational security of its tactics, techniques, and procedures. And drone strikes raise a number of legal issues. A threshold question, that dictates the quantum and type of international law implicated, is whether a drone strike crosses international borders. Such strikes constitute a use of force and an armed attack under the UN Charter and raise challenging, though not unique, ius ad bellum questions including the exercise of consent, sovereignty, and self-defense [see: Ius ad Bellum]. And because cross-border strikes are often into an area in which the entity launching the strike does not exercise control, both battle damage and civilian casualty assessments have been challenging and contradictory. The legality of drone strikes also depends on whether the question is considered under ihrl, where lethal force is a last resort, or ihl, whereby lethal force may be employed in the first instance [see: International Human Rights Law; International Humanitarian Law]. Determining which of those bodies of law applies depends on the existence, and scope, of armed conflict, which in turn raises additional questions. There is consensus that the ius in bello (ihl) governs drone strikes conducted in recognized areas or zones of armed conflict, as ihl is lex specialis and may prevail over human rights and domestic law in times of war. In contrast, drone strikes outside of recognized areas of

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armed conflict, particularly those conducted by other than State armed forces, notably intelligence services, engender debate about extrajudicial killing and whether ihrl applies [see: Targeted Killing]. Within ihl, drone strike proponents and opponents often use the same attributes to reach very different conclusions. For example, proponents claim drones’ loiter capability allows for the gathering of greater amounts of intelligence, facilitating more accurate strikes and less collateral damage [see: ­Precautions, Active; Proportionality]. To opponents, loitering drones cause psychological harm to the civilian population living under a near constant threat that a strike may occur nearby. In other areas, those debating drones tend to talk past each other, referring to different legal regimes. Proponents stress an in bello claim that drones are more and better able to exercise the principle of distinction and differentiate between the object of attack and civilians [see: Distinction]. To opponents, drones have facilitated, even caused, a lowering of the threshold for the use of the force. There is no debate that drones are becoming ubiquitous and no longer the exclusive purview of States; a number of non-State actors, including Hamas, Hezbollah, and isis, have already begun to employ weaponized drones. The looming spectre of increased numbers of drone strikes stands in stark contrast to the future Tesla envisioned. In his patent application, Tesla wrote that the greatest value of drones would be that “by reason of its certain and ­unlimited destructiveness it will tend to bring about and maintain permanent peace among nations”. While the world has not yet had an armed conflict involving significant numbers of armed drones on each side, such a war seems ­inevitable. When such a conflict occurs, it will be interesting to see if States modify their view of international law’s application to drones and drones strikes. Chris Jenks – the views expressed are those of the author alone and do not ­necessarily reflect the views of any institution the author is affiliated with Bibliography

S. Barela, Legitimacy and Drones: Investigating the Legality, Morality and Efficacy of ucavs (2015). C. Finkelstein, J.D. Ohlin, A. Altman (eds.), Targeted Killings: Law and Morality in an Asymmetrical World (2012). K. J. Heller, ‘“One Hell of a Killing Machine”: Signature Strikes and International Law’, 11(1) jicj (2013). M.N. Schmitt, ‘Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing the “Fog of Law”’, 13 yihl (2010).

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Dual-Use Objects; see: Military Objectives; Civilian Objects Dum-Dum (Expanding) Bullets. Expanding bullets are those that “expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions” [Hague Declaration (iv, 3) concerning Expanding Bullets]. In the early 1890s, concerned that their rifle ammunition was ineffective against attacking tribesmen, British troops began filing down the tip of the round in the field to reveal the bullet’s lead core. This caused the bullet to expand when it entered the human body, inflicting far greater wounds than its original. This improvised soft-point round, which is a bullet whose jacket is cut back at the nose to reveal the lead core, became known as the Dum Dum ­bullet, so called after the factory at Dum Dum near Calcutta that manufactured it in the mid-1890s. Subsequently, a hollow-point bullet, which is a semi-jacketed bullet, the nose of which has a cavity and imparts similar terminal ballistics ­effects, was produced at the Woolwich ordnance factory in the late 1890s. The use of expanding bullets as a means of warfare was prohibited by the Hague Declaration (iv, 3) of 1899, despite opposition to the ban by the United Kingdom and the United States. The US delegate had proposed a more general prohibition on the use of bullets that “inflict wounds of useless cruelty, such as explosive bullets and in general every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combat” [Geneva Academy of International Humanitarian Law and Human Rights, ‘1899 Hague Declaration concerning Expanding Bullets’, Weapons Law Encyclopedia]. The prohibition is generally agreed to encompass both hollow-point and soft-point rounds. More controversial are open-tip-match rounds, which have a small aperture in the nose as part of the manufacturing process, and which are used by United States Marines in Afghanistan. These bullets do meet the international treaty definition, but may reduce the risk of harming civilians as they are more accurate. The US is not a State party to the Hague Declaration. Use of expanding bullets by armed forces in the conduct of hostilities is a serious violation of ihl [rule 77 icrc Customary ihl Study]. According to this study, State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Furthermore, it is, when it occurs with the requisite mens rea, a war crime in international armed conflict [art. 8(2)(b)(xix) icc Statute] and, following an amendment of the icc Statute in 2010, in non-international armed conflict [art. 8(2)(e)(xv) icc Statute]. It should, though, be noted that expanding bullets are permissible for use in law enforcement operations [see: Law Enforcement]. This means that a soldier of one State may not use expanding bullets against a soldier of another

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State during an armed conflict or against its own citizens in the conduct of hostilities in a non-international armed conflict, but a police officer may lawfully use expanding ammunition against one of his/her State’s own citizens. This is due to the fact that law enforcement operations are often conducted in public places and that expanding ammunition is believed to significantly reduce the risk of over-penetration and possibly also of ricochet. As a result of human rights obligations, particularly to life and humane treatment, the danger of innocent bystanders being harmed when police officers open fire must be reduced to a minimum. This is one of the very few instances when ihl is more restrictive than is the international law of law enforcement and international human rights standards [see: International Human Rights Law]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

R. Coupland, D. Loye, ‘The 1899 Hague Declaration concerning Expanding Bullets: A Treaty Effective for More than 100 Years Faces Complex Contemporary Issues’, 85(849) irrc (2003). Geneva Academy of International Humanitarian Law and Human Rights, ‘1899 Hague Declaration concerning Expanding Bullets’, Weapons Law Encyclopedia. M. Waldren, ‘Dum-Dum Bullets’, Police History Series (2012).

Dunant, Henry. The Swiss banker Henry Dunant was one of the founding members of the icrc [see: International Committee of the Red Cross], formerly named the International Committee for Relief to the Wounded. As a young man, he was involved in a number of charitable activities, and he was also fascinated by the works of philanthropists of his time, such as Harriet Beecher Stowe (abolitionist), Florence Nightingale (founder of modern nursing), and Elizabeth Fry (prison reformer). He became a fervent advocate for assisting wounded soldiers after witnessing the aftermath of the battle of Solferino on 24 June 1859. This battle – fought between the Franco-Sardinian Alliance and the Austrian army – had left approximately 40.000 wounded combatants without medical assistance, due to the inability of the medical services of the armed forces. Dunant himself organized medical attention for the wounded in the nearby town of Castiglione delle Stiviere. In 1862, using his own financial resources, he published the book “Un Souvenir de Solferino”, in which he described the battle. He proposed two ideas for alleviating the suffering of wounded soldiers, namely the creation of relief societies that would act as auxiliaries to the army medical services and a legal basis that would oblige armies to care for all wounded, regardless of the side for which they were fighting.

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Dunant’s ideas were well received by the Geneva Public Welfare Society, which established a committee to consider ways of putting Dunant’s ideas into practice. The committee, comprising Dunant and four other citizens of Geneva (Louis Appia, General G.H. Dufour, Theodore Maunoir, and Gustave Moynier), changed its name on 17 February 1863 to create the International Committee for Relief to the Wounded. In October 1863, they convened an International Conference in Geneva, which resulted in the adoption of 10 resolutions reflecting the Committee’s (especially Dunant’s) proposals and giving the initial impetus to the development of the laws of war. Subsequently, the proposals adopted by the Conference were submitted to States for approval and, on 22 August 1864, twelve States signed a treaty enshrining the obligation to spare and protect wounded soldiers and the people and equipment involved in their care. The Geneva Convention was born and, with it, modern ihl. Soon thereafter, national relief societies – adopting the emblem of the red cross – started being set up in each country of Europe [see: Emblem]. Dunant’s humanitarian work earned him the recognition and respect of European leaders. In 1868, as a result of his declaration of bankruptcy in 1867 and the ensuing scandal, Dunant was forced to resign in 1868 from his post as secretary of the International Committee. Dunant’s life changed drastically, and years of wandering and utter poverty followed. In 1887, he took refuge in the Swiss village of Heiden, where he became friends with members of the local community. One of them, Susanna Sonderegger, took the initiative to found a local branch of the Red Cross and asked Dunant to serve as honorary President. Years later ­Dunant fell ill and moved to Heiden’s residential hospital in 1892. Notwithstanding his health problems, he kept advocating for more humane wars. In 1895, Dunant met Georg Baumberger, a journalist, who wrote about him. Baumberger’s article contributed to rehabilitating Dunant and building a lasting memory of his work. In 1901, Dunant was awarded the Nobel Peace Prize in recognition of his lifetime humanitarian efforts. Since 1922, in his honour, the birthday of Dunant (8 May) is celebrated as the World Red Cross and Red Crescent Day. Marcos Pablo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

H. Dunant, A Memory of Solferino (1862). C. Krusen, They were Christians: The Inspiring Faith of Men and Women Who Changed the World (2016), pp. 107–120. C. Moorehead, Dunant’s Dream – War, Switzerland and the History of the Red Cross (1999).

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Economic Warfare. This term describes methods used by a party to a conflict to weaken an adversary’s economy, as a strategy of war. Economic warfare comes in a variety of forms. Some involve the use of military force, such as ­instituting a naval blockade [see: Blockade], bombing the adversary’s economic infrastructure, and intercepting contraband. Other non-forcible measures include domestic acts by a party to the conflict, such as legislative and executive acts imposing a trade embargo or freezing enemy property [see: Embargo]. Where these methods are used during armed conflict, the GCs and other relevant instruments that protect civilian populations must be observed, who invariably will be casualties of economic warfare. The starvation of civilians, through the destruction of objects indispensable to their survival, is prohibited by Article 54(1)-(2) api and Article 14 apii [see: Starvation], and described as a war crime during international armed conflict in the icc Statute [art. 8(2) (b)(xxv) icc Statute]. Furthermore, relief action for civilians in need must be allowed [arts. 23, 59 gciv; art. 70 api; art. 18 apii; see: Humanitarian Relief]. However, economic warfare methods are not prohibited where they serve a military objective, rather than to starve a civilian population. As with other methods of war, economic warfare that affects a civilian population will be subject to the principle of proportionality [arts. 49(3), 51(5), 54(1) api; paras. 102–103 San Remo Manual; see: Proportionality]. The permissibility of blockades that prevent all vessels or aircraft from entering enemy territory is also subject to the GCs and custom, codified in the San Remo Manual. Notably, the rules on blockade apply only in an international armed conflict. Where the civilian population of the blockaded territory is not adequately provided with objects essential for its survival, “the blockading party must provide for free passage of such foodstuffs and other essential supplies”, subject to a right for such party to prescribe the technical arrangements for such passage [para. 103 San Remo Manual]. Michael Ramsden – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

T.E. Førland, ‘The History of Economic Warfare: International Law, Effectiveness, Strategies’, 30(2) Journal of Peace Research (1993). M. Happold, P. Eden (eds.), Economic Sanctions and International Law (2016).

Education. During armed conflict, schools can be a safe-haven, keeping children away from dangers and risks of exploitation [see: Children]. Receiving

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

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(opac) condemns “the targeting of children in situations of armed conflict and direct attacks on objects protected under international law, including places that generally have a significant presence of children, such as schools and hospitals” [Preamble opac, para. 5; see: Convention on the Rights of the Child (1989) and its Protocols]. Unless educational facilities qualify as a specially protected object, such as a cultural object or a medical facility (for example a teaching hospital), it is not explicitly prohibited under ihl to use or occupy them for military purposes, although parties to a conflict remain under the obligation to take precautionary measures to protect civilian objects, including schools, from the effects of military operations [see: Precautions, Passive]. Yet, the use or occupation of educational facilities may turn them into military objects, exposing them to lawful attack by the enemy, thus placing students and teachers at risk. Seeking to limit the occupation or use of education institutions by armed forces and groups, a “Safe Schools Declaration”, drafted by a group of States led notably by Norway and Argentina, was opened for States’ endorsement in 2015. More than 50 States have done so. States can commit themselves to minimize the use of schools or university buildings as military bases or barracks. Furthermore, the unsc has encouraged all countries to take concrete measures to protect schools from such interference [e.g. unsc Resolution 2143 (2014), para. 18, unsc Resolution 2225 (2015), para. 7]. Cécile Aptel – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations High Commissioner for Human Rights or any other institution the author is affiliated with Bibliography

S. Dryden-Peterson, K. Mundy, Educating Children in Conflict Zones: Research, Policy, and Practice for Systemic Change – A Tribute to Jackie Kirk (2015). B. O’Malley (unesco), Education under Attack (2010). Save the Children London, Attacks on Education. The Impact of Conflict and Grave Violations on Children’s Future (2013). unesco, Protecting Education from Attack: A State-of-the-Art Review (2010).

Embargo. In past times, the term “embargo” was understood as a specific form of self-help, whereby an injured State would detain vessels sailing the flag of a delinquent State. Nowadays, the term is commonly used to refer to a type of sanction through which a State restricts transportation to and from another State (e.g. by prohibiting foreign vessels and aircraft from entering its ports

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

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Navigation of 1956 [Judgment, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), icj, para.276]. At the same time, the embargo was not found to result in a breach of the customary nonintervention principle. Over the years, the negative humanitarian consequences of embargoes on the targeted State’s population have given rise to concerns. This has especially been the case for general trade embargoes or restrictions on important ­sectors of the State’s economy. The devastating effects of embargoes on ­civilians  – ­especially the most vulnerable – became apparent in the context of the comprehensive UN embargo against Iraq in the 1990s. Despite the O ­ il-for-Food programme, the measures against Iraq were believed to have caused high rates of malnutrition, disease, and an increase in infant mortality. Since the Iraqi sanction regime, comprehensive embargoes have been avoided in favour of “targeted” or “smart” sanctions, especially in the form of asset freezes and travel bans imposed upon individual high-level State officials, as well as other persons and entities (albeit that the compatibility of the UN (de-)listing regime with ihrl has been the subject of debate). In addition, in order to mitigate the adverse consequences of embargoes, the unsc and the EU, for instance, have allowed humanitarian exceptions. These exceptions aim to ensure that the population does not suffer from a lack of foodstuffs, medicines, and other basic needs. It is uncontested that, when adopted in wartime, embargoes must comply with ihl, and in particular: (1) the prohibition to starve the civilian population [see: Starvation]; and (2) the right of the civilian population to receive humanitarian assistance and relief supplies [see: Humanitarian Relief]. In the context of an armed conflict, the imposition of unilateral embargoes by neutral States against a belligerent State may moreover be problematic under the law of neutrality and in particular the duty of impartiality, which traditionally requires that, if a neutral State imposes a trade embargo on one belligerent, it does the same towards the other belligerent(s) [see: Neutrality]. Some commentators have argued that the same principles underlying ihl should apply by analogy in the absence of an armed conflict [e.g. M. Reisman, D. Stevick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programmes’, 9(1) ejil (1998); see: Proportionality; Military Necessity; Distinction]. A more convincing argument is perhaps that coercive embargoes should respect the principle of proportionality, a key maxim not only of ius in bello, but also general public international law. Proportional embargoes would also mitigate adverse effects on the civilian population’s human rights. It has further been argued that sanctions should abide by ihrl. There is debate as to whether this applies to the unsc in light of Articles 25 and 103 in

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the UN Charter, which stipulate that UN Members’ obligations pursuant to Chapter vii resolutions of the unsc take precedence over their obligations “under any other international agreement”. There would, however, appear to be a consensus that the unsc is bound by customary ihrl, and especially non-derogable human rights. Tom Ruys, Alexandra Hofer – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

B.E. Carter, ‘Economic Sanctions’, in R. Wolfrum (ed.), Max Planck Encyclopaedia of Public International Law (2012). P.-E. Dupont, ‘Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran’, 17(3) Journal of Conflict & Security Law (2012). V. Lowe, A. Tzanakopoulos, ‘Economic Warfare’, in R. Wolfrum (ed.), Max Planck ­Encyclopaedia of Public International Law (2012). M. Reisman, D. Stevick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programmes’, 9(1) ejil (1998). N. Ronzitti (ed.), Coercive Diplomacy, Sanctions and International Law (2016). A. Segall, ‘Economic Sanctions: Legal and Policy Considerations’, 836 irrc (1999). N. Tsagourias, N.D. White, Collective Security: Theory, Law and Practice (2013), pp. 219–246. L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (2017).

Embedded Journalists; see: War Correspondents Emblem. Prior to the adoption of the 1949 GCs, those responsible for the protection of the wounded on the battlefield made use of a variety of symbols to identify themselves. However, as many of these symbols were unknown to the opposing side(s), such persons were not adequately protected. This led to the  need to develop distinctive identification for the persons concerned and related objects and equipment [see also: Signal]. For these purposes, ihl ­currently recognises four emblems placed on a white background: the red cross, the red crescent, the (now defunct) red lion and sun, and the red crystal [art. 38 gci; art. 41 gcii; art. 8(l) api; art. 12 apii; art. 2 apiii]. The emblem has, first and foremost, a protective function. In armed conflict, it aims at distinguishing between individuals and objects entitled to protection from attack under the 1949 GCs and the 1977 APs from those that may not claim such protection. Individuals and objects that may benefit from the

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protective function of the emblem are: (i) medical and religious personnel of the armed forces and, under certain circumstances, medical personnel of national societies and voluntary aid societies, as well as civilian medical and religious personnel [arts. 39–41, 43 gci; arts. 41–42 gcii; art. 20 gciv; art. 18(1), (3) api; see: Medical Personnel; Religious Personnel]; and (ii) medical units, establishments, and material of armed forces and, under certain circumstances, of national societies and voluntary aid societies, as well as those of civilian nature [arts. 39, 42–43 gci; arts. 41, 43 gcii; arts. 18(3), 21–22 gciv; art. 6 Annex i gciv; art. 18(1), (4) api; see: Hospital Ships; Hospitals; Medical ­Aircrafts; Medical Equipment; Medical Transport Vessels; Medical ­Transports; ­Medical Units and Establishments]. This function extends, mutatis mutandis, to the medical services of armed groups involved in a non-international armed conflict surpassing the threshold of apii [art. 12 apii]. However, certain forms of protection apply more generally under customary ihl in both international and non-international armed conflict [rule 30 icrc Customary ihl Study]. The protective use of the emblem is subject to authorisation by the competent authority [art. 39 gci; art. 41 gcii; art. 18(1), (4) api; art. 12 apii]. In addition, the circumstances of armed conflict generally require that the emblem be “as large as appropriate”, in order to be clearly visible [art. 4 Annex i api]. It is important that, whilst the emblem should in principle be displayed, it may be decided not to do so for a number of reasons, especially as a result of military considerations [art. 42 gci; art. 18(1), (3) api; 2016 icrc Commentary gci, paras. 2566, 2578–2579, 2644, 2651–2653; 1987 icrc Commentary api, paras. 747, 753, 762, 767]. However, non-display of the emblem does not automatically lead to loss of protection, considering that the emblem is a mere manifestation of the protection and not its source [2016 icrc Commentary gci, paras. 2566, 2578–2579, 2650]. The emblem has, in addition, an indicative function. In times of peace, national Red Cross, Red Crescent, or Red Crystal societies may employ the emblem for activities that are in conformity with International Red Cross principles [art. 44(2) gci; see: International Red Cross and Red Crescent Movement]. Such use of the emblem may continue during armed conflict, but, considering the differing contexts, it must be of a comparatively smaller size, may not be placed on armlets or on the roofs of buildings, and does not prompt its protective function [art. 44(2) gci]. However, international Red Cross ­organisations and their personnel are not subject to such restrictions and are, accordingly, permitted to make use of the emblem at all times [art. 44(3) gci; see: International Committee of the Red Cross]. Finally, exceptionally and subject to strict conditions, the emblem may be employed to identify ambulances and to mark aid stations providing free treatment [art. 44(3) gci].

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Misuse of the emblem is outlawed. Thus, the 1949 GCs stipulate that use of the emblem by others than those entitled thereto under ihl is prohibited at all times [art. 53 gci; art. 38(1) api; art. 12 apii; art. 6 apiii; rule 59 icrc Customary ihl Study]. In this regard, States parties are required to adopt all necessary measures to prevent misuse, including legislation [art. 54 gci; art. 45 gcii; art. 6 apiii]. Egregious forms of abuse may amount to a war crime or a grave breach, such as the perfidious use of the emblem [art. 37(d), 85(3)(f) api; art. 6 apiii; rule 65 icrc Customary ihl Study; art. 8(2)(b)(vii), 8(2)(e)(ix) icc Statute; see: Perfidy] and intentionally directing attacks against persons and objects making use of the emblem in conformity with ihl [rule 30 icrc Customary ihl Study; art. 8(2)(b)(xxiv), 8(2)(e)(ii) icc Statute]. Many challenges are associated with the emblem. For instance, apiii was adopted in response to the concerns of certain States and National Societies regarding the perceived religious connotation of the existing emblems [see: Additional Protocol iii]. However, the diversity of emblems used in armed conflicts may cause confusion and, as a result, affect their legitimacy or undermine their protective effects. Furthermore, the aforementioned absence of a legal obligation to display the emblem necessarily heightens the risk that the persons and objects entitled to its protection may come under attack, especially because of the increase in long-range targeting in modern warfare. In addition, the use of the emblem by armed groups in non-international armed conflict falling short of the apii threshold is not free from uncertainty. In this regard, the icrc “encourages” competent authorities to permit medical services of armed groups to use the emblem for protective purposes [icrc, Study on the Use of the Emblems (2011), p. 169]. This suggests that there is no legal obligation to do so, which may impede the protection of those affected by noninternational armed conflict. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

A. Bouvier, ‘The Use of the Emblem’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015). G. Cauderay, ‘Visibility of the Distinctive Emblem on Medical Establishments, Units, and Transports’, 30(277) irrc (1990).

Enquiry. The term enquiry procedure is a broad term covering a range of measures aiming ultimately at enhancing compliance with ihl. Related (and partly comprised) notions are compliance, verification, and fact-finding [see:

Enquiry

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Commissions of Inquiry and Fact-finding Missions], as well as control, supervision, inspection, investigation, and safeguards. Under general international law, the notion of enquiry procedure is placed in the context of the settlement of disputes at large. Such procedures have been used in a number of different roles and functions in evolving international law. In ihl, they admittedly possess an element of dispute settlement by clarifying disputed facts through impartial investigation. The focus, however, is on collecting evidence in order to allow for a legal evaluation of a situation and for enabling to objectify a judgement on the lawfulness of the behaviour of a party to a conflict. Enquiry procedures in the context of ihl usually involve the collection of evidence and/or the ascertainment of facts which are relevant, with a view to evaluating lawfulness. As such, enquiry procedures may be legally binding or not, permanent or ad hoc. The basic idea of enquiry in the area of ihl stricto sensu is to obtain information about compliance of the parties to an armed conflict with their obligations in the areas of protection of (groups of) individuals and restrictions on means and methods of warfare. Information on the factual situation and context is of paramount importance for any legal statement in general and in particular regarding issues arising in armed conflict. Any tenable evaluation or judgement on whether specific behaviour of a party to a conflict is lawful or unlawful presupposes certainty on the factual details. An enquiry into the ­factual ramifications of armed conflicts and the behaviour of parties to a c­ onflict necessarily touches upon sovereignty issues, especially security interests of parties. Quite often, such interests are even deemed relevant for the survival of a nation and therefore considered to be part of the domaine réservé and to be off limits. Consequently, the actual implementation of enquiry procedures and the establishment of respective institutions are dependent on the explicit consent of the party to the conflict concerned. As a rule, parties to a conflict take a considerably guarded, defensive, or, as the case may be, even negative approach on providing agreement to enquiry procedures in international relations. Article 14 of the 1907 Hague Regulations already provided for an “inquiry office for prisoners of war”, to be instituted on the commencement of hostilities in each of the belligerent States. In its tasks and design, it paved the way for tracing services as provided for by the GCs and APs [see: Central Tracing Agency]. The GCs contain common provisions for an enquiry procedure in Articles 52 gci, 53 gcii, 132 gciii, and 149 gciv, covering all alleged violations of the GCs and obliging States parties to commence an enquiry “at the request of a Party to the conflict”. Despite this legal duty, the wording of the provision makes the actual institution dependent on agreement by the parties, which to date has always been

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lacking so that the instrument has never been made use of. Furthermore, the ascertainment of facts is a traditional concern and aspiration with regard to ihl and one of the traditional tasks of a protecting power [e.g. art. 126 gciii; art. 143 gciv; see: Protecting Powers]. The mandatory agreement to ­enquiry measures is enshrined in the designation of the protecting power. As traditional a means and as classical a manifestation of the typical clash of interests in ihl the system of protecting powers is, as unused and irrelevant the system (and the encompassed enquiry mechanism) have become in today’s practice in international relations. The recent debate and agony concerning renewed approaches to improving compliance with and promoting respect for ihl arise out of the underlying, yet different, ambition of the international community to strengthen legal protection for victims of armed ­conflict through better compliance. Enquiry procedures form part and parcel of such compliance mechanisms. To date, it is still a fact that the international community is uncertain about what the framework conditions for an enquiry procedure, which is widely deemed to be potentially helpful in order to p ­ romote respect for ihl, could look like. Heike Spieker – the views expressed are those of the author alone and do not necessarily reflect the views of the German Red Cross or any other institution the author is affiliated with Bibliography

M. Bothe, ‘Verification of Facts’, in R. Wolfrum (ed.), Max Planck Encyclopedia of ­Public International Law (2012). C. Hendersohn, ‘Commissions of Inquiry: Flexible Temporariness or Permanent ­Predictability?’, 45 Netherlands Yearbook of International Law (2014). A. Jachec-Neale, ‘Fact-Finding’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012). T. Pfanner, ‘Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims’, 91(874) irrc (2009).

Environment. There are a number of ways in which the protection of the environment is enshrined in ihl, both generally and through specific provisions. The general rules on the conduct of hostilities can serve to protect the ­environment [see: Hostilities, Conduct of]. According to the principle of distinction, a distinction must be made between military objectives and civilian objects [see: Distinction]. Usually, the natural environment is made up of civilian objects and, in such circumstances, it would, thus, be prohibited to attack any part of the natural environment. It would only be permissible to

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a­ ttack a part of the natural environment that is classified as a military objective under ihl [see: Military Objectives]. Nevertheless, if the natural environment were considered to comprise a military objective, it would still be essential for the armed forces to comply with the principles of military necessity and proportionality [see: Military Necessity; Proportionality]. It is generally accepted that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principle of necessity” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 30; J.-M. Henckaerts, L. ­Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005), p. 144). ­Furthermore, if extensive damage to property is not justified by military necessity, it could constitute a grave breach of the GCs [art. 147 gciv; see: Grave Breaches]. While the environment is not specifically mentioned here, other instruments have stated this rule with respect to the natural environment [see e.g. icrc, ­Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, para. 8]. In terms of proportionality, according to customary international law, it is accepted that incidental damage to the environment must not be excessive in relation to the anticipated military ­advantage from an otherwise lawful attack [Henckaerts, Doswald-Beck, p. 145]. There are specific provisions relating to the protection of the environment in api. Article 35 api relates to the basic rules regarding the means and methods of warfare and states that “it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment”. Article 55 api states that care should be taken to protect the natural environment and that means and methods, which are expected to cause widespread, long-term and severe damage to the environment, thereby prejudicing the health or survival of the civilian population, are prohibited. It is also prohibited to attack the natural environment by way of reprisals. Articles 35 and 55 api have been criticised, however, for creating a cumulative, high, and imprecise threshold [UN Environment Programme, Protecting the Environment During Armed Conflict – An Inventory and Analysis of International Law (2009), p. 11]. In the case of military occupation, unless there is military necessity, an occupying power can use the occupied territory, but is not permitted to damage or destroy property individually or collectively owned by the inhabitants [art. 55 1907 Hague Convention iv; art. 53 gciv]. More specific provisions on the protection of the environment during armed conflicts can be found in the 1976 UN Convention on the Prohibition of Military or any Other Use of Environmental Modification Techniques (­e nmod).

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As the name suggests, enmod specifically seeks to prohibit the use of environmental modification techniques and was largely a reaction to military tactics used by the United States in the Vietnam War. While api addresses the protection of the natural environment, enmod aims at forbidding techniques that turn the environment into some sort of weapon itself. Article 1 enmod states that “each State Party […] undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party”. Significantly, it requires a lower threshold than api with the cumulative standards being replaced with alternative ones. Some have argued that, to date, enmod has been successful as there have been no scenarios of large-scale environment modification tactics reported since its adoption. The ccw, and its 1980 Protocol iii on Prohibitions or Restrictions on the Use of Incendiary Weapons also contain provisions relating to the protection of the environment in armed conflict [see: Convention on Certain Conventional Weapons (1980); Incendiary Weapons]. There are a number of criticisms regarding the existing protection of the environment in ihl, which have been put forward by the UN Environment Programme. These include that there are no permanent international mechanisms supervising any legal infringements that lead to environmental damage during armed conflicts, and in turn, no body to deal with any compensation claims that may arise. Although an investigative body exists for violations of api and the GCs, these investigations require consent of the parties and do not address violations of other legal instruments [see: Commissions of Inquiry and Fact-finding Missions; Enquiry]. Daniela Gavshon – the views expressed are those of the author alone and do not necessarily reflect the views of the Public Interest Advocacy Centre Bibliography

icrc, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict (1996). UN Environment Programme, Protecting the Environment During Armed Conflict – An Inventory and Analysis of International Law (2009).

Expanding Bullets; see: Dum-Dum (Expanding) Bullets Exploding Bullets; see: Saint Petersburg Declaration (1868) Extrajudicial Killing; see: Targeted Killing

Evacuation

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Evacuation. In general, persons that may be exposed to danger may need to be evacuated. This is no different in situations of armed conflict. However, in addition to the existence of an armed conflict often being the very reason of evacuations, it is a delicate matter under ihl, because forcible displacement of civilians is prohibited [art. 49 gciv; art. 17 apii; rule 129 icrc Customary ihl Study; see: Deportation or Transfer of Civilians; Transfer by the Occupying Power of Its Own Population]. When, and by whom, evacuations are lawful, and whether an obligation to evacuate or instead a prohibition exists, depends on the circumstances. The prohibition against forcible transfer protects the right of individuals to remain in their homes or communities [1987 icrc Commentary apii, para. 4847; Judgment, Stakić, icty, Appeals Chamber, para. 277]. However, for both international and non-international armed conflicts, ihl includes an exception to the prohibition of displacement in cases where the security of the ­civilians involved, or imperative military reasons, require the evacuation [art. 49 gciv; art. 17(1) apii; see: Military Necessity]. The icrc further notes that the possibility of evacuation is provided for in “numerous military manuals” and included in the legislation of “many States” [rule 129 icrc Customary ihl Study]. During evacuations, care has to be taken that it is done with due regard to conditions of hygiene, health, shelter or accommodation, safety, nutrition, and that members of the same family are not separated [art. 49(3) gciv]. Any evacuation of civilians may only be for as long as the conditions warranting the displacement exist. Indeed, evacuees are to be “transferred back to their homes as soon as hostilities in the area in question have ceased” [art. 49(2) gciv]. gciv further specifies that evacuations may not displace civilians outside the occupied territory, unless it is “impossible to avoid”. Article 17(2) apii states that “[c]ivilians shall not be compelled to leave their own territory for reasons connected with the conflict”, which the icrc understands to mean that evacuations in times of non-international armed conflict may never involve displacement outside the national territory [rule 129 icrc Customary ihl Study]. One can imagine situations, however, where a safe area cannot be found within the State borders and moving civilians across a border into a neighbouring State may be the only way to ensure their safety and t­ herefore – similarly – “­impossible to avoid”. As long as a proper agreement is entered into with the neighbouring State [art. 78(3) api], and provided that the persons concerned are able to return to their homes as soon as possible, and they are allowed back into the country, it appears that ihl would not prevent such cross-border evacuations. Naturally, with respect to both international and non-international armed conflicts, a State may evacuate its own nationals from another State where fighting is taking place.

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In case of besieged cities or areas, the parties to the conflict shall endeavour to conclude agreements to the remove “wounded, sick, infirm, and aged persons, children and maternity cases” from such areas [art. 17 gciv; see: Siege]. For children, ihl contains some specific clauses on evacuations [see: ­Children]. api sets certain strict conditions for evacuations (across State borders) in case of children [art. 78 api], while gciv encourages evacuation of children from besieged areas [art. 17 gciv]. apii similarly requires measures to be taken to “remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being” [art. 4(3)(e) apii]. One cannot rely on imperative military reasons as a pretext to remove the civilian population from a certain area, in order to ethnically cleanse it or effectuate control over it. In this regard, it is important to note that ­displacement for humanitarian reasons is “not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity” [Stakić, para. 287]. Moreover, the icty held that the assistance of a humanitarian agency in facilitating displacement does not necessarily render the transfer lawful [Stakić, para. 286; Judgment, Simić, icty, Appeals Chamber, para. 180]. It further considered that an agreement between (military) leaders, or other representatives of the parties involved, does not legitimise a transfer [Judgment, Popović, icty, Trial Chamber, para. 897]. With regards to combatants, ihl allows for the movement of prisoners of war [see: Prisoners of War; Deprivation of Liberty, Treatment]. The capturing party has an incentive to move them away from the frontline, to prevent the prisoners from being liberated by their own party, or to discourage attempts to escape. In addition, as prisoners of war are in the hands of the detaining power, they also have to be cared for by this power, which requires that they “shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger” [art. 19 gciii], subject to certain conditions [art. 20 gciii]. The foregoing applies only to evacuations required by reasons that relate to the fighting. apii refers to displacement ordered “for reasons related to the conflict” [art. 17(1) apii]. This phrase was included to indicate that displacements ordered, for example, because of epidemics or natural disasters, do not fall under the prohibition [1987 icrc Commentary apii, para. 4855]. Rogier Bartels – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta, M. Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015).

Explosive Remnants of War

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Explosive Remnants of War. The ihl definition of explosive remnants of war (erw) is found in the ccw [see: Convention on Certain Conventional Weapons (1980)]. The Protocol on Explosive Remnants of War, annexed to the Convention, defines erw as consisting of “unexploded ordnance” and “abandoned explosive ordnance”, each of which are subsequently defined as follows: “[un]exploded ordnance means any explosive ordnance that has been primed, fused, armed or otherwise prepared for use and used in an armed conflict. It may have been fired, dropped, launched or ­projected and should have exploded but failed to do so” [art. 2(2) Protocol v ccw]; “[a]bandoned explosive ordnance means explosive ordnance that has not been used during an armed conflict, that has been left behind or dumped by a party to an armed conflict, and which is no longer under control of the party that left it behind or dumped it. Abandoned explosive ordnance may or may not have been primed, fused, armed or otherwise prepared for use” [art. 2(3) Protocol v ccw]. These definitions are meant to cover the wide range of conventional explosive weapons that are regularly found following an armed conflict in and around areas where active hostilities have taken place. Their presence represents an ongoing danger for civilian populations and, in large numbers, an obstacle to post-war reconstruction and development. The Protocol on Explosive Remnants of War requires the parties to an armed conflict to take concrete measures to reduce the dangers posed by these weapons. These include the recording of information on the explosive ordnance used or abandoned by its armed forces during a conflict [art. 4(1) Protocol v ccw]; clearing erw in the territory that it controls after the end of active hostilities [art. 3(2) Protocol v ccw]; the provision of technical, material or financial assistance to facilitate the removal of erw resulting from its operations and found in territory that it does not control [art. 3(1) Protocol v ccw]; and taking all feasible precautions to protect civilians from erw [art. 5(1) Protocol v ccw]. However, mines, booby traps and other devices as defined in Protocol ii (as amended on 3 May 1996) ccw are not encompassed by these definitions, nor covered by the Protocol on Explosive Remnants of War [see: Landmines; ­Booby-Traps]. This is because amended Protocol ii ccw already requires measures to be taken to reduce the risk that these weapons pose to civilians after the end of active hostilities, including measures to clear such weapons after the end of active hostilities and to take measures to protect civilian populations and humanitarian organizations from their effects. Although concepts of unexploded and abandoned ordnance are not new, the reference to explosive remnants of war finds its roots in UN Resolutions and Reports [e.g. unga Resolutions 3435 (xxx), 35/71 (1980) and 36/188 (1981)]. In

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1982, the unga requested the unsg and the UN Environment ­Programme “to prepare a factual study on the problem of remnants of war […]” [unga Resolution 37/215 (1982), para. 4]. This study was then submitted to the unga by the unsg in 1983 [unsg, Report: Problem of Remnants of War (1983)]. Louis G. Maresca – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

Geneva International Centre for Humanitarian Demining, Explosive Remnants of War (erw): A Threat Analysis (2002). icrc, Explosive Remnants of War: A Study on Submunitions and other Unexploded Ordnance (2000). A. Westing, Explosive Remnants of War: Mitigating the Environmental Effects (1985).

Explosive Weapons. Munitions that cause damage to objects and injury to persons primarily through blast and fragmentation effects, caused by their detonation, are sometimes referred to as “explosive weapons”. Explosive weapons come in various forms, including air-dropped bombs, artillery projectiles [see: Artillery], cluster munitions, grenades, improvised explosive devices (ieds), mines, mortar shells, missiles, and rockets. When explosive weapons are used in populated areas, including in urban centres, over 90% of those killed and injured are civilians [Action on Armed Violence (aoav), Patterns of Harm – Five Years of Explosive Violence (2011– 2015), p. 3]. Explosive weapons cause severe injuries that are often fatal or result in permanent disabilities. The use of explosive weapons in populated areas damages housing and vital public infrastructure (e.g. for the provision of water or health care) that can have significant reverberating effects on civilian populations. It is also a major cause of displacement [UN Office for the Coordination of Humanitarian Affairs, Protecting Civilians from the Use of Explosive Weapons in Populated Areas (2016)]. Explosive weapons are not defined or regulated as a category under international law, but certain weapon-types are subject to express restrictions. C ­ luster munitions, for example, are banned [see: Convention on Cluster Munitions (2008)], as are anti-personnel landmines [see: Anti-Personnel Mine Ban Convention (1997)]. Furthermore, the 2003 Protocol v ccw [see: Convention on Certain Conventional Weapons (1980)] aims to prevent and remedy the ­post-conflict humanitarian problems caused by explosive weapons. Any use of explosive weapons as a means of warfare must comply with the rules of ihl, including the prohibitions on indiscriminate and disproportionate attacks [art. 51 api; see: Indiscriminate Attacks; Proportionality]

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and the rule on precautions in attack [art. 57 api; see: Precautions, Active]. In the view of the icrc, “explosive weapons with a wide impact area should not be used in densely populated areas due to the significant likelihood of indiscriminate effects” [icrc, International Humanitarian Law and the Challenges of C ­ ontemporary Armed Conflicts (2015), p. 49]. Wide-area blast and ­fragmentation effects can result from a single munition having a large destructive radius (e.g. a heavy air-dropped bomb or missile), the inaccurate delivery of a munition (e.g. an unguided rocket or mortar shell), the dispersal of multiple munitions (e.g. by a multiple-barrel rocket launcher or a cluster munition) or a combination of these factors [icrc, Expert Meeting Report: Explosive Weapons in Populated Areas – Humanitarian, Legal, Technical and Military Aspects (2015), p. 9]. To strengthen the protection of civilians from the effects of explosive weapons, civil society actors, the unsg, and others are calling on armed actors to revise operational practices and policies and on States to make a political commitment to refrain from the use of explosive weapons with wide-area effects in populated areas [International Network on Explosive Weapons (inew), A Declaration to Prevent Harm from the Use of Explosive Weapons in Populated Areas (2016), para. 28]. Maya Brehm – the views expressed are those of the author alone and do not necessarily reflect the views of Article 36 Bibliography

Action on Armed Violence (aoav), Patterns of Harm: Five Years of Explosive Violence (2011–2015). icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2015a), pp. 47–53. icrc, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects (2015b). International Network on Explosive Weapons (inew), A Declaration to Prevent Harm from the Use of Explosive Weapons in Populated Areas (2016). UN Office for the Coordination of Humanitarian Affairs, Protecting Civilians from the Use of Explosive Weapons in Populated Areas (2016). unsc, Report of the unsg on the Protection of Civilians in Armed Conflict (2016), paras. 24–28.

Fair Trial. The right to fair trial, as a fundamental human right, entails that no person may be deprived of liberty without due process of law. This right is guaranteed by ihl through a number of specific rules that govern the process of indictment and trial of persons detained during and for reasons connected to

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an armed conflict. The exact scope of the guarantees applicable varies depending on the circumstances in which a person is arrested and the status of such person. The icrc has identified the right to fair trial as a rule of customary ihl applicable in both international and non-international armed c­ onflicts [rule 100 icrc Customary ihl Study]. Furthermore, ihrl on the right to fair trial continues to apply, in principle, during armed conflict. 1. Fair Trial Guarantees in International Armed Conflicts Prisoners of war are subject to a number of detailed and specific rules governing trial in gciii [arts. 99–108 gciii; see: Prisoners of War]. Prisoners of war are subject to the laws and regulations in force in the armed forces of the detaining power [art. 82 gciii]. As a general principle, prisoners of war are protected from being charged with violations of ex post facto law [art. 99 gciii]. In respect of judicial procedures, prisoners of war must only be tried by a military court, unless the existing laws of the detaining power expressly permit the civil courts to try prisoners of war for the offence [art. 84 gciii]. In no circumstances, however, may a prisoner of war be tried by a court which does not offer the essential guarantees of independence and impartiality as generally recognised and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105 gciii. Prisoners of war are also protected against double jeopardy or ne bis in idem [art. 86 gciii] and forced confessions [art. 99 gciii]. Judicial investigations must be conducted as rapidly as possible so that trial takes place as soon as possible [art. 103 gciii]. A prisoner of war is not to be confined while awaiting trial, unless a member of the armed forces of the detaining power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security and in no circumstances should this confinement exceed three months [art. 103 gciii]. A prisoner of war is entitled to assistance by one of his prisoner comrades, defence by qualified advocate or counsel by his own choice, to the calling of witnesses and the services of an interpreter [arts. 99(3), 105 gciii]. The only basis for an in camera trial session is if it is in the “interest of State security”, otherwise the representatives of the protecting power should be allowed to attend the trial [art. 105(5) gciii]. A right of appeal or petition from any sentence in the same manner as the members of the armed forces of the detaining power is guaranteed [art. 106 gciii]. A number of specific fair trial guarantees for protected persons in occupied territories are laid down in gciv [see: Protected Persons]. A rule against the application of retroactive law is provided in Article 67 gciv. Protected persons may not be prosecuted for breaches of the law prior to the occupation or during a break thereof, except for breaches of the laws and customs of war [art. 69 gciv]. The right to a fair and regular trial before a competent court is

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guaranteed in Article 71 gciv. Accused persons must be promptly informed, in writing, of the particulars of the charges against them, and shall be brought to trial as rapidly as possible. Protected persons are also entitled to the right to ­defence, including the right to present evidence and call witnesses, to be assisted by a qualified advocate or counsel of their choice, and the use of an interpreter [art. 72 gciv]. A convicted person has the right to appeal [art. 73 gciv]. The trial should be open to the representative of the protecting power, unless it is necessary to hold in camera proceedings in the interests of the security of the occupying power [art. 74 gciv]. A right against being put in jeopardy twice for the same act or the same count is provided in Article 117 gciv. Article 75 api sets out in detail the minimum judicial guarantees of fair trial applicable to persons who are in the power of a party to the conflict and who do not benefit from more favourable treatment under the GCs or api (i.e. persons who do not qualify as prisoners of war under gciii, or protected persons under gciv) [see: Fundamental Guarantees]. The icrc has described Article 75 api as sort of a “summary of the law” in the field of judicial guarantees [1987 icrc Commentary api, p. 865]. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict, except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognised principles of judicial procedure [art. 75(4) api]. Such principles include the right to be informed without delay of the particulars of the offence and all the rights and means of defence; the requirement of individual penal responsibility; the right not to be subject to retroactive law; the presumption of innocence; the right to be tried in one’s presence; not to be compelled to self-incrimination; to examine and call witnesses; not to be put in double jeopardy; to have the judgment pronounced publicly; and the right to be advised of his judicial and other remedies and of the time limits within which they must be exercised [arts. 75(4)(a)-(j) api]. Persons accused of war crimes or crimes against humanity should be prosecuted and tried in accordance with the applicable rules of international law and for those persons who do not benefit from more favourable treatment under the GCs or api, they must be accorded the treatment under Article 75 api, whether or not they have been accused of grave breaches [art. 75(7) api]. If a more favourable provision of an applicable rule of international law grants greater protections than the guarantees listed in Article 75 api, the more protective provision should apply [art. 75(8) api]. 2. Fair Trial Guarantees in Non-International Armed Conflicts Common Article 3 GCs prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly

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constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” [see: Common Article 3; Regularly ­Constituted Courts]. Courts have referred to Article 75 api for guidance in identifying such guarantees [e.g. Judgment, Hamdan v Rumsfeld, U.S. Supreme Court, pp. 70–72]. More detailed protections for persons who are to be prosecuted for criminal offences related to the armed conflict are provided for in apii. The basic principle is the right to be tried by a court “offering the essential guarantees of independence and impartiality” [art. 6(2) apii]. An accused must be informed without delay of the particulars of the offence alleged and be afforded all the necessary rights and means of defence. There is a protection against being prosecuted on the basis of retroactive law and the presumption of innocence is guaranteed. In addition, accused are entitled to be tried in their presence and shall not be compelled to self-incrimination. These protections are set out in Article 6(2)(a)-(f) apii. If convicted, a person must be advised of his or her judicial and other remedies and of the time-limits within which they may be exercised [art. 6(3) apii]. 3. Fair Trial Guarantees in ihrl All persons detained during armed conflict are protected by the domestic law of the detaining State and by ihrl [unga Resolution 45/111 (1990), principle 5]. Article 14(1) iccpr entitles all persons to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. Article 14 iccpr further provides for: the right to be presumed innocent; minimum judicial guarantees; the need to take account of the age; the desirability of promoting the rehabilitation of juveniles; the right to compensation; and the ­protection of ne bis in idem. While Article 14 iccpr is not included in the list of non-derogable rights in Article 4(2) iccpr, the UN Human Rights Committee (hrc) in General Comment No. 29 has stated that “[a]s certain elements of the right to a fair trial are explicitly guaranteed under ihl during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations” [hrc, General Comment No 29 – Article 4: Derogations during State of Emergency, para. 16]. 4. The Interplay between ihl and ihrl As noted above, the fair trial protections of ihl and ihrl apply during armed conflict. To the extent that the rules differ, the interplay between the two sources of law may be governed by the doctrine of lex specialis, which entails that the applicable ihrl is interpreted by looking at the meaning of terms

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within the context of ihl [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 25]. Another method of interpretation relevant to such interplay is the complementarity paradigm, whereby courts apply the norms that are either more detailed on a particular point at issue or offer b­ etter protection. In practice, both these methods of interpretation are forms of a systemic integration approach that would seek to build a systemic relationship between the rules of ihl and ihrl, rather than merely according priority to one rule over another [art. 31(3)(c) vclt; see: Judgment, Hassan v. The United Kingdom, ECtHR, Grand Chamber, paras. 100–105]. Yasmin Naqvi – the views expressed are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for ­Criminal Tribunals or the United Nations in general Bibliography

Y. Arai-Takhashi, ‘Fair Trial Guarantees in Occupied Territory – the Interplay between International Humanitarian Law and Human Rights Law’, in R. Arnold, N. Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008). A. Bianchi, Y. Naqvi, International Humanitarian Law and Terrorism (2011), p. 374. C. Swinarski, ‘On the Right to Fair Trial under International Humanitarian Law Instruments’, in A. Byrnes (ed.), The Right to Fair Trial in International and Comparative Perspective (1997). D. Weissbrodt, ‘International Fair Trial Guarantees’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014).

Flag State. In accordance with the 1982 UN Convention on the Law of the Sea (unclos) and customary international law, all ships “shall sail under the flag of one State only” [art. 92(1) unclos]. There are also references in ihl to the necessity of vessels having and displaying their flag [art. 43 gcii]. The designation of a flag – that is, the nationality of the vessel, or the flag State – serves a number of purposes. First, it delineates which State has primary responsibility for implementing the duties set out in Article 94 unclos and in other applicable rules of international law, including regulating the conduct of the vessel and setting the requisite conditions for compliance with the wide range of international rights and obligations that pertain to vessels. For example, according to the International Tribunal for the Law of the Sea (itlos), “[w]hile the nature of the laws, regulations and measures that are to be adopted by the flag State is left to be determined by each flag State in accordance with its legal system, the flag State nevertheless has the obligation to include in

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them enforcement mechanisms to monitor and secure compliance with these laws and regulations” [Advisory Opinion, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, itlos, para. 138]. The second purpose fulfilled by the designation of a flag State is that this nationality provides the primary jurisdiction applicable in the vessel [e.g. arts. 91–92, 94, 97, 104 unclos]. Thus, for example, if an assault occurs in the vessel, it is generally the law of the flag State that would apply to investigating and prosecuting that offence. A third purpose of the designation of a flag State is to provide an appropriate jurisdiction to which requests regarding the ­vessel – such as a request by a foreign warship to be permitted to board the vessel – may be directed (often referred to as “flag State consent”) [e.g. art. 17(3) 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances]. The existence of a flag State does not, however, mean that flag State consent must be gained in every situation where an authorised vessel, most often a warship or maritime law enforcement vessel, will interact with a vessel bearing a different nationality [see: Warships]. In peacetime, whilst sovereign immune vessels remain immune from interference on the high seas [e.g. arts. 95–96 unclos], other vessels may in some situations be stopped and boarded without having first gained flag State consent. The five situations encompassed by Article 110 unclos, the right of a coastal State to enforce its laws in certain maritime zones (including in international waters via the Article 111 unclos mechanism of hot pursuit), and enforcement of certain types of mandatory unsc Chapter vii sanctions regimes, are examples. During armed conflict, belligerent warships are not required to seek flag State consent when exercising belligerent rights such as visit and search over neutral vessels, that is, vessels flying the flag of a State that is neutral in the armed conflict. There are a number of points to note regarding the concept of a flag State. The first, which is of general application, is that customary international law and, inter alia, Article 91 unclos require that there “exist a genuine link between the State and the ship” in order for the grant of nationality to be effective. This phrase has been interpreted in a recent iconic case as follows: “[t]he need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States” [Judgment, M/V Saiga (no.2) (Saint Vincent and the Grenadines v. Guinea), itlos, para. 83]. This view was reinforced in another case, noting that the requirement for “a genuine link between the flag State and the ship should not be read as establishing prerequisites or conditions to be satisfied for the exercise of the right of the flag State to grant its nationality to ships” [Judgment, M/V Virginia G (Panama v. Guinea-Bissau), itlos, para.

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110]. Second, of relevance during armed conflict at sea, whilst the display of a false flag during peacetime would in most situations provide grounds for a flag check boarding, it is an accepted ruse of war for warships and auxiliaries, up until the time at which an attack is launched [e.g. para. 110(a) San Remo Manual; see: Ruses of War]. Robert McLaughlin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

R. Reuland, ‘Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction’, 22 Vand. J. Transnat’l L. (1989), p. 1161.

Forced Labour; see: Compelling a Protected Person to Serve in the Forces of the Hostile Power; Workers; Slavery Foreign Fighters. There is no generally accepted definition of who is a ­so-called foreign fighter. The term is commonly used to describe individuals who join an insurgency in a country outside their habitual place of residence or nationality. It is, thus, normally reserved for those who fight with non-State armed groups to the exclusion of those who join foreign State armed forces. Foreign fighters are not a new phenomenon: the Spanish civil war, the war in Afghanistan following the Soviet invasion, and the conflicts in the former Yugoslavia and in Chechnya all attracted significant numbers of foreign fighters. Yet, the term foreign fighter gained prominence in the aftermath of the attacks of 11 September 2001, due to the presence of foreign fighters in the ranks of the Taliban and al-Qaeda in Afghanistan. Subsequently, foreign fighters, in particular Muslim foreign fighters, became associated with international ­terrorism, because “most transnational jihadi groups today are by-products of foreign fighter mobilizations” [T. Hegghammer, ‘The Rise of Muslim Foreign Fighters. Islam and the Globalization of Jihad’, 35(3) International Security (2010/11), p. 53] and the experience of foreign fighting is “one of the strongest predictors” of individual involvement in domestic terrorism [T. Hegghammer, ‘Should I Stay or Should I Go? Explaining Variation in Western Jihadists’ Choice Between Domestic and Foreign Fighting’, 107(1) American Political Science ­Review (2013), p. 10]. Foreign fighters share certain features with mercenaries [see: Mercenaries], but there are also important differences. The UN Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the

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

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receiving of terrorist training, including in connection with armed conflict” [unsc Resolution 2178 (2014), Preamble, para. 8]. States are, inter alia, required to have the ability to prosecute travel or attempted travel abroad for involvement in terrorist acts, including to receive terrorist training, as well as funding or otherwise facilitating such travel [unsc Resolution 2178 (2014), para. 6(a)(c)]. The unsc Resolution thus requires States to criminalize behaviour that has not been previously defined in any international terrorism treaty. However, Resolution 2178 (2014) does not provide a definition of terrorism [see: Terrorism (International Law)]. Without such a definition, the distinction between “foreign terrorist fighter” and “foreign fighter” remains unclear and largely depends on national definitions of terrorism [unsg, para. 92]. Similarly, requiring States to adopt sweeping measures without providing a definition of terrorism has led to criticism that the unsc Resolution will lead to, or at the very least, facilitate human rights abuses [L. Tayler, ‘Foreign Terrorist Fighter Laws: Human Rights Rollbacks under UN Security Council Resolution 2178’, 18(5) International Community Law Review (2016), pp. 495 et seq]. Finally, the regime set up by Resolution 2178 (2014) blurs the lines between terrorism and armed conflict, without due regard paid to the differences in the regimes governing armed conflict and terrorism and how to harmonize them [see: Anti-Terrorist Operations; Terrorist Organizations]. In D ­ ecember 2017, the Security Council adopted Resolution 2396 (2017), which focuses specifically on measures to address the threat posed by returning ‘foreign t­ errorist fighters’. Sandra Krähenmann – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

T. Hegghammer, ‘The Rise of Muslim Foreign Fighters. Islam and the Globalization of Jihad’, 35(3) International Security (2010/11). T. Hegghammer, ‘Should I Stay or Should I Go? Explaining Variation in Western ­Jihadists’ Choice Between Domestic and Foreign Fighting’, 107(1) American Political ­Science Review (2013). S. Krähenmann, ‘Foreign Fighters under International Law’, 7 Geneva Academy Briefing (2014). L. Tayler, ‘Foreign Terrorist Fighter Laws: Human Rights Rollbacks under UN Security Council Resolution 2178’, 18(5) International Community Law Review (2016).

Freedom Fighters. During the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts on 8 June 1977, discussions were held in relation to several subjects

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

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would determine api’s applicability to a particular situation. The difference is relevant insofar as, if api is applicable, national liberation wars would be international armed conflicts and, if captured, freedom fighters would enjoy prisoners of war status [see: International Armed Conflict; Prisoners of War]. In non-international armed conflict, the application of ihl “never internationalizes the conflict or confers any status – other than the international legal personality necessary to have rights and obligations under ihl – to a party to that conflict” [M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), Ch. 12, p. 28]. This is so, regardless of whether the armed group is made up of persons considered to be rebels, militias, criminal gangs, freedom fighters, insurgents, terrorists, bandits, warlords, etc. Marcela Giraldo – the views expressed are those of the author alone and do not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or the Inter-American Court of Human Rights (the author was a lawyer at the InterAmerican Court of Human Rights at the time of writing the entries) Bibliography

A.J. Armstrong, Mercenaries and Freedom Fighters: The Legal Regime of the Combatant under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol i), 30(125) jag J. (1978). C. Ewumbue-Monono, Respect for International Humanitarian Law by Armed NonState Actors in Africa, 88(864) irrc (2006). L.F.E. Goldie, Profile of a Terrorist: Distinguishing Freedom Fighters from Terrorists, 14(125) Syr. J. Int’l L. & Com. (1987). J. Klabbers, Rebel with a Cause? Terrorists and Humanitarian Law, 14(2) ejil (2003).

Fundamental Guarantees. The words fundamental guarantees refer to the minimum rules of protection that any person who finds himself or herself in the power of a party shall enjoy, according to ihl and ihrl. These fundamental guarantees apply as a minimum standard to all persons who do not, or no longer, take part in hostilities, notwithstanding their status under the GCs or the international or non-international character of the conflict. Indeed, these fundamental rules reflect “elementary considerations of humanity”, as the icj stated with reference to Common Article 3 GCs [Judgment, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), icj, para. 218]. As a result of this minimum standard, these fundamental guarantees cannot be infringed by derogations and any other applicable rule that provides for greater protection of the individual under the GCs, their APs, any other rule of international or domestic law supersedes.

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Common Article 3 GCs was included in the 1949 GCs to ensure that m ­ inimum rules apply in conflicts “not of an international character” to the treatment of persons who do not take a direct part in hostilities or who were placed hors de combat, notably by sickness, wounds or detention [see: C ­ ommon Article 3; Hors de Combat]. These rules were reiterated and expanded in 1977 by Articles 4, 5(1) and 6 apii that govern non-international armed conflicts within the meaning of Article 1 apii. With regard to international armed conflicts, the absolute obligation to treat humanely prisoners of war who were in the power of the enemy State was already set forth in Article 76 of the 1863 Lieber Code and codified in Article 4 of the 1907 Hague Regulations. The requirement of humane treatment was translated into specific prohibitions (murder, torture, ill-treatment, etc.) and guarantees (fair trial) in the GCs for persons hors de combat and, as of 1949, protected civilians [see: Protected Persons]. Civilians who are not protected by gciv within the meaning of Article 4 gciv can nevertheless avail themselves of Common Article 3 GCs as the minimum standard. Adopted in 1977, Article 75 api was explicitly drafted for the purpose of granting a minimum of protection to all those who are arrested and/or detained in relation to an international armed conflict, but are not considered to be protected persons under the GCs or not fully protected by gciv because of the derogations provided for in Article 5 gciv (notably spies, saboteurs and c­ ivilians having taken a direct part in hostilities). As the minimum standard applicable in time of armed conflict, Article 75 api does not permit any ­adverse distinction to be drawn (most notably based upon national origin). As such, these fundamental guarantees would be applicable to the own nationals of the party to the armed conflict. In the same vein, the scope of application of Common Article 3 GCs and Articles 4, 5(1) and 6 apii is not, in principle, restricted to individuals of the adverse armed group. All these codified fundamental guarantees are reinforced or even supplemented by customary ihl and ihrl. As for the latter, even if the extent to which ihl guarantees apply to the nationals of a party to an armed conflict towards their own State (or to the members of an armed group towards their own organization) remains controversial, ihrl does not make any distinction based upon nationality or allegiance. The fundamental guarantees that any individual in the power of a party to a conflict shall be entitled to can be summed up into the principle of the humane treatment of the person. The concept of humane treatment is firmly rooted in ihl with regard to prisoners of war and, in ihrl, in relation to persons deprived of their liberty [for example, art. 10 iccpr]. The mere fact that the concept is contained in both bodies of law provides guidance to understand it as respect for the “inherent dignity of the human person” [preamble i­ ccpr]. As a

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result, the following acts, including threats to commit such acts, are p ­ rohibited under any circumstances and at any time in relation to any individual who does not, or no longer takes part in hostilities: violence to life, health, and physical or mental well-being [see: Wilful Killing and Murder; Seriously Endangering the Physical or Mental Health or Integrity of Protected Persons], outrages upon personal dignity [see: Outrage upon Personal ­Dignity], disrespect for convictions and religious practices [see: Religious Convictions and Practices], taking of hostages [see: Hostages], the passing and execution of sentences without a fair trial affording all the essential judicial guarantees [see: Regularly Constituted Courts], acts of terrorism [see: Terrorism (International Law)], slavery [see: Slavery], and pillage [see: Pillage]. All these acts are also prohibited under ihrl and constitute war crimes under the statutes of international criminal courts. Therefore, the case-law of international human rights and criminal courts contributes, by interpreting comparable or similar rules, to the clarification or even the development of the components of fundamental guarantees under ihl. For instance, the notion of “cruel treatment”, which is forbidden by Common Article 3 GCs, was defined by the icty as “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or ­physical suffering or injury or constitutes a serious attack on human dignity” [Judgment, Delalić et al., icty, Trial Chamber, para. 552]. In another case, the icty deduced from this definition that the use of human shields constituted “cruel treatment” [Judgment, Blaškić, icty, Trial Chamber, para. 186], adding the prohibition of human shields to the list of fundamental guarantees under ihl. An issue may arise when divergences occur between an ihl concept and a similar concept differently interpreted under ihrl by a human rights court. For example, Article 66 gciv states that the occupying power may, in case of a breach of the penal provisions promulgated by it, “hand over the accused [civilians] to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied territory”. Conversely, the trial of civilians by military courts is considered by the ECtHR as failing to satisfy the requirement of independence and impartiality of a tribunal under Article 6 echr, because of the close links between the executive power and the military officers serving on these courts [Judgment, Cyprus v. Turkey, ECtHR, Grand Chamber, para. 358]. However, in this specific example, it may not be a definitive divergence since there may be situations where military courts are a­ ctually independent and impartial. Anne-Laurence Graf-Brugère – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is ­affiliated with

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Bibliography

J.K. Kleffner, ‘Friend or Foe? On the Protective Reach of the Law of Armed Conflict. A Note on the scsl Trial Chamber’s Judgment in the Case of Prosecutor v. Sesay, Kallon and Gbao’, in M. Mathee, B. Toebes, M. Brus (eds.), Armed Conflict and ­International Law: In Search of the Human Face (2013). C. Laucci, ‘Customary International Humanitarian Law Study: Fundamental Guarantees’, 6(1–2) Slovenian Law Review (2009).

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

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the prohibition of gender-based violence has become a norm of international customary law. Relevant is also the Declaration on the Elimination of Violence against Women (adopted on 20 December 1993). Although not binding, it contains certain provisions that reflect customary international law. It indicates that violence against women includes rape, sexual abuse, sexual harassment and intimidation, forced prostitution, and physical, sexual, and psychological violence perpetrated or condoned by the State. Furthermore, it spells out the measures to be undertaken by States to prevent and eradicate gender violence. At the regional level, mention must be made of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against ­Women (adopted on 6 September 1994 and entered into force on 3 May 1995), and of the Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (adopted on 11 July 2003 and entered into force on 25 ­November 2005). Besides domestic tribunals, international human rights courts (especially the ECtHR and the IACtHR) as well as UN Treaty bodies (in particular the cedaw, but also the hrc, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, and the cescr) have developed a vast case law on violence against women, spelling out in detail States’ duties, including the positive obligation to prevent gender violence and to thoroughly investigate, identify, prosecute, and sanction those responsible. These obligations apply also in cases of domestic violence. Within the UN Special Procedures, two are particularly relevant for the subject of gender violence, namely the Special Rapporteur on Violence against Women, its Causes and Consequences, and the Working Group on the Issue of Discrimination against Women in Law and in Practice. Since 2009, the O ­ ffice of the Special Representative of the unsg on Sexual Violence in Conflict serves as the UN spokesperson and political advocate on conflict-related sexual violence, and is the chair of the network UN Action against Sexual Violence in Conflict. In July 2010, the unga created the UN Entity for Gender Equality and the Empowerment of Women (UN Women), with the aim to streamline resources and to better coordinate, within the organisation, the mandates of those working on gender equality and the empowerment of women. Violence against women, in particular rape and other forms of sexual violence [see: Rape and Sexual Violence], is frequently used in the context of armed conflicts. Nevertheless, the prohibition of rape and other forms of sexual violence is a norm of customary ihl, applying to both international and

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non-international armed conflicts [rules 93, 134 icrc Customary ihl Study]. The prohibition of rape and other forms of sexual violence is encompassed by the principle of humane treatment [see: Inhuman Treatment], which is the pillar of ihl treaties and prohibits such acts against any person in every ­circumstance. Neither the 1949 GCs nor their APs use the expression gender ­violence, but they contain several provisions that, although often indirectly, deal with the subject [e.g. art. 12 gci; art. 12 gcii; art. 27 gciv; common art. 3 GCs; art. 76(1) api; art. 4 apii]. Another instrument of reference is the Declaration on the Protection of All Women in Emergency and Armed Conflict (adopted by the unga on 14 December 1974) which, although not binding, ­reproduces some customary rules of international law. Rape and other forms of sexual violence are not only criminal offences but, under certain circumstances, they may amount to crimes under international law. In this regard, among others, the icc Statute includes acts of rape and other forms of sexual violence in the definition of genocide, crimes against humanity, and war crimes respectively [arts. 6(b), 7(1)(g), 8(2)(b)(xxii), 8(2) (e)(vi) icc Statute]. International criminal tribunals (in particular the icty and the ictr) have extensively addressed cases of rape and other forms of sexual violence. On 21 March 2016, the icc issued its first conviction elaborating on superior responsibility for rape as a crime against humanity [Judgment, Bemba, icc, Trial Chamber]. On 8 June 2018, the Appeals Chamber reversed that decision and acquitted Mr. Bemba. Gender violence, especially during armed conflicts, is the subject of deep concern for the UN. In this context, the unsc adopted three Resolutions of crucial importance on the matter [unsc Resolution 1325 (2000), unsc ­Resolution 1820 (2008) and unsc Resolution 1888 (2009)], calling on all parties to armed conflicts to take special measures to protect women from gender violence, and requesting States to put an end to impunity for these crimes and provide adequate redress to victims. Gabriella Citroni – the views expressed are those of the author alone and do not necessarily reflect the views of TRIAL International or any other institution the author is affiliated with Bibliography

L. Chappell, The Politics of Gender Justice at the International Criminal Court – Legacies and Legitimacy (2015). A. Edwards, Violence against Women under International Human Rights Law (2011). M.A. Freeman, C. Chinkin, B. Rudolf, The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (2012).

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Geneva Convention i. The First Convention adopted at the Diplomatic Conference of 1949 in Geneva concerns the protection of wounded and sick m ­ embers of the armed forces in land warfare. gci embodies the founding principle of modern ihl that members of the armed forces, whether friend or foe, who are hors de combat, including by sickness or wounds, and hence without means of defence, must be protected and cared for. Individuals benefiting from protected status under gci must fulfil two conditions: they must be members of the armed forces (or otherwise belong to one of the categories set forth in Article 13 gci) and they must be hors de combat, as a result of being wounded or sick [see: Hors de Combat; Wounded and Sick]. The wounded and sick protected under gci must be respected and protected in all circumstances [art. 12 gci] and every provision of gci is geared towards this purpose. For instance, the parties to the conflict have an obligation to search for and collect them, to protect them against pillage and ill-­ treatment, and to provide for their adequate care at all times, particularly after a military engagement [art. 15 gci]. They must also, for example, search for the dead, prevent their remains from being despoiled, and respect certain conditions regarding burial or cremation [arts. 15, 17 gci; see Dead Persons]. The role of the local civilian population in collecting and caring for the wounded and sick is also recognized [art. 18 gci]. However, the protection of the wounded and sick can only be effective if it is coupled with protection owed to those assisting and caring for them. Therefore, gci provides for special protection to medical units and establishments [arts. 19–23 gci; see: Medical Units and Establishments], medical personnel [arts. 24–32 gci; see: Medical Personnel], buildings and materials [arts. 33–34 GCI; see: Medical Equipment], and medical transports [arts. 35–37 gci; see: Medical Transports]. This legal regime ensures that medical services can work with minimal disruption and deliver adequate care to wounded and sick combatants on the battlefield. As a sign of their special protected status, military medical personnel, buildings and transports are entitled to display the red cross, red crescent, or red crystal, on a white background, as a protective device [arts. 38–44 gci; see: Emblem]. Attacks against medical units and disruption of medical care in contemporary armed conflicts are tragic reminders that the protection owed to those caring for the wounded and sick should never be taken for granted. The principles and rules enshrined in gci, which form the backbone of modern ihl, remain fully relevant in regulating warfare and its humanitarian consequences. Since 1949, technological progress has enhanced the fighting capacities of

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belligerents, but also their ability to rescue and care for the wounded and sick left behind on the battlefield. Reflecting timeless principles that can adapt to evolving realities, gci’s provisions are fully adequate to these challenges. Their effectiveness rests only on the willingness and concrete actions of belligerents in ensuring compliance with the law. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), pp. 195–209.

Geneva Convention ii. The second Convention adopted at the Diplomatic Conference of 1949 in Geneva concerns the protection of wounded, sick, and shipwrecked members of the armed forces at sea. gcii rests on the same idea as gci [see: Geneva Convention i], but extends to the naval battlefield [see: Naval Warfare]. Combatants hors de combat, because of wounds, sickness, or shipwreck, shall not, owing to their vulnerability and inability to defend themselves, be the object of attack, but shall be protected and cared for. The same category of individuals protected under gci (members of the armed forces lato sensu wounded and sick) are protected under gcii when at sea [art. 13 gcii; see: Wounded and Sick]. In the naval war context, it was also necessary to protect those placed hors de combat by another type of misfortune: the shipwrecked [art. 13 gcii; Shipwrecked]. All gcii provisions ensure that wounded, sick and shipwrecked persons are respected and protected in all circumstances [art. 12 gcii]. In order to achieve this general objective, parties to the conflict have, for instance, an obligation, after each military engagement, to search for and collect them, to protect them against pillage and ill-treatment and to ensure their adequate care [art. 18 gcii]. As in land warfare, belligerents at sea must also search for the dead, and respect them [arts. 18, 20 gcii; see: Dead Persons]. At sea, as on land, those rescuing and caring for the wounded, sick, and shipwrecked are protected from attack. Therefore, gcii attaches special p ­ rotection to military hospital ships, including converted merchant vessels [arts. 22–35 gcii; see: Hospital Ships; Merchant Vessels], their personnel [arts. 36–37 gcii; see: Medical Personnel], and medical transports [arts. 38–40 gcii; see: Medical Transports]. In addition, it reiterates the protection of medical

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e­ stablishments ashore granted under gci [art. 23 gcii; see: Medical Units and Establishments]. Hospital ships and their personnel, as well as the religious and medical personnel of other ships, are entitled to display the protective emblem [arts. 41–43 gcii; see: Emblem]. Although naval battles, such as the ones in the Malvinas/Falklands conflict, are becoming rare, there are real tensions over water space and resources in several parts of the globe, which could well lead to armed conflicts waged mainly at sea. Moreover, hostilities on land sometimes extend to the maritime space, including by way of naval blockades [see: Blockade]. gcii can therefore be relevant and even life-saving in a number of contemporary situations. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W. Heintschel von Heinegg, ‘The Law of Armed Conflict at Sea’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), pp. 195–209.

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

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

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­ ombatants; Prisoners of War]. The actual implementation of gciii rules C must also be subject to careful scrutiny by third parties. In this respect, the visits of the icrc have been instrumental in monitoring and improving compliance with the law by detaining powers [see: icrc Visit]. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

H. Levie, Prisoners of War in International Armed Conflict (1979). G.P. Noone et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, 50(1) Naval Law Review (2004). S. Scheipers (ed.), Prisoners in War (2010).

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

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By contrast, Part iii of gciv [arts. 27–141 gciv] is applicable to protected civilians only. It consists of a coherent set of detailed rules, regulating various aspects of the lives of protected civilians who are or may be affected by armed conflict in different ways, directly or indirectly. Some rules apply irrespective of the territory where the protected person is located [e.g. Part iii, Section i gciv; Part iii, Section iv gciv, concerning the treatment of internees]; ­others are territorially bound [e.g. Part iii, Section ii gciv, which applies to the ­territory of the belligerent State; Part iii, Section iii gciv, which applies to occupied territories]. Section i of Part iii contains provisions on prohibited forms of treatment and on the responsibility of the power in whose hands protected persons are, including in facilitating assistance by the protecting power and relief organisations. Section ii focuses on the protection of aliens in the territory of a belligerent, by regulating their right to leave, but also their means of existence if they stay, as well as by providing restrictions on the security measures imposed upon them. Section iii is applicable to occupied territories and contains an extensive list of rules, reflecting the specific needs of inhabitants of a territory coming under the control of the enemy [see: Occupation]. This Section clarifies and develops the Hague Conventions of 1899 and 1907 concerning the laws and customs of war on land, in particular the 1907 Hague Regulations [see: Hague Regulations (1907)]. gciv imposes a number of d­ uties on the ­occupying power, including the provision of essential supplies and services or the protection of children, as well as restrictions on its actions, inter alia on movements of persons, the destruction of property and the requisition of hospitals, or its legislative powers. The treatment of detainees and guarantees related to the penal procedure in occupied territories are also covered, together with limitations on the kind of security measures which may be taken against protected persons. Section iv of Part iii provides for a detailed regime of protection for protected civilians who are interned in the territory of a belligerent or the territory it occupies pursuant to the grounds for internment or assigned residence in Articles 42 and 78 gciv, respectively [see: Internment; Assigned Residence]. Most aspects of the lives of civilian internees are subject to specific rules [see: Deprivation of Liberty, Treatment], namely their place of internment [Chapter ii], food and clothing [Chapter iii], hygiene and medical attention [Chapter iv], religious, intellectual, and physical activities [Chapter v], personal property and financial resources [Chapter vi], administration and discipline in internment camps [Chapter vii], relations with the exterior [Chapter viii], penal and disciplinary sanctions [Chapter ix], transfer [Chapter x], deaths [Chapter xi], and release, repatriation and accommodation in

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neutral ­countries [­Chapter xii]. Finally, Section v of Part iii regulates the functioning of the Information Bureau and the Central Agency. Although non-international armed conflicts constitute the majority of today’s conflicts, international armed conflicts and occupation are by no means remnants of the past. Millions of civilians are living in occupied territories or in the territory of belligerents and gciv remains the best international instrument offering them a protection that was designed specifically for these types of situations together with api. If gciv has proved so relevant for the past 60 years, it is also because continuous interpretive and implementing efforts have contributed to ensure that it remains a living body of rules. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

H.-P. Gasser, K. Dörmann, ‘Protection of the Civilian Population’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), pp. 211–248.

Geneva Conventions. The four GCs of 12 August 1949 are the main treaty instruments for modern ihl. With their three Additional Protocols, adopted respectively in 1977 [see: Additional Protocol i; Additional Protocol ii] and 2005 [see: Additional Protocol iii], they aim to protect those not or no longer taking part in hostilities, as well as to limit the use of violence to the extent necessary to defeat the enemy. The origins of the four 1949 GCs can be traced back to 1864, when 16 States participating in a diplomatic conference on the initiative of the Geneva ­Committee, adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field on 22 August 1864 [see: Dunant, Henry]. This Convention enshrined the principle that members of the armed forces, who are hors de combat due to wounds or sickness, must be protected and cared for, regardless of their nationality. As a corollary to this principle, the 1864 Geneva Convention recognized the neutrality and inviolability of medical personnel, establishments and units, and adopted the distinctive emblem of the red cross against a white background, as a visual expression of such protection. The 1864 Geneva Convention was updated and developed in 1906 and in 1929. The same year, on 29 July, the Convention Relative to the Treatment of Prisoners of War was adopted. At that time, the need to extend the protection to civilians affected by armed conflicts was already under discussion, and led

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to the drafting of a Convention on the protection of civilians in enemy hands (approved by the International Conference of the Red Cross in Tokyo in 1934). While the project was postponed by the outbreak of World War ii, the scale of violence during the war tragically reinforced the need to reaffirm States’ ­commitment to respect and protect those affected by armed conflicts. In 1948, the xviith International Conference of the Red Cross discussed and adopted four draft conventions. The new set of Conventions was finally adopted during the 1949 Diplomatic Conference in Geneva. The four 1949 GCs not only enhanced the protection owed to wounded, sick and shipwrecked combatants [gci and gcii; see: Geneva Convention i, Geneva Convention ii], as well as prisoners of war [gciii; see: Geneva Convention iii], they also extended the protective scope of the law to civilians [gciv; see Geneva Convention iv]. Whereas these four Conventions apply to international armed conflicts (opposing two or more States) [see: International Armed Conflict], Common Article 3 GCs – often described as a “­mini-convention” within the Conventions – applies to non-international armed conflicts, opposing a State – or States – to an armed group, or o­ pposing several armed groups [see: Common Article 3; Non-International Armed Conflict]. Universally ratified, the 1949 GCs are binding on all States. Most of their provisions are also largely recognized as forming part of customary international law [see: Customary International Humanitarian Law]. They are ­enforced by the same mechanisms as other rules of international law (related to State responsibility and individual criminal responsibility). In addition, they contain their own implementation rules and mechanisms. For instance, they provide for the obligation of all State parties to “respect and ensure respect” for the Conventions [common art. 1 GCs; see: Common Article 1]; the dissemination of the Conventions and their integration in military training and national legislation [see: Dissemination]; the investigation and repression of violations (especially via the criminal repression of “grave breaches”) [see: Grave Breaches]; and the role of protecting powers and of the icrc [see: Protecting Powers]. While prospects for new ihl treaties in the near future are slim, the 1949 GCs remain as important as ever to regulate armed conflicts and their humanitarian consequences. Whether they will stand the test of time depends on continuous and scrupulous efforts to interpret their provisions in a way that adapts to changing operational and legal environments, while remaining faithful to their object and purpose. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J. Pictet, ‘The New Geneva Conventions for the Protection of War Victims’, 45(3) ajil (1951).

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Geneva Gas Protocol (1925). The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925 Geneva Gas Protocol) was negotiated and signed at the Conference for the Supervision of the International Trade in Arms and Ammunition, convened in Geneva under the auspices of the League of Nations from 4 May to 17 June 1925. As at November 2016, 140 States were party to this Protocol. The 1925 Geneva Gas Protocol built on the norm laid down in the Declaration (iv, 2) concerning Asphyxiating Gases, adopted in The Hague on 29 July 1899, whereby States parties agreed to “abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases”, but which had failed to prevent widespread use of chemical weapons in World War i. Indeed, the preamble to the 1925 Geneva Gas Protocol noted the intention of States parties to ensure that the prohibition of use of “asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices” would become “universally accepted as a part of International Law, binding alike the conscience and the practice of nations”. Under the 1925 Geneva Gas Protocol, States parties declared that “so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration”. Thus, this Protocol extended the prohibition of chemical weapons in international armed conflict to encompass also bacteriological warfare. However, more than 20 States made reservations to the 1925 Geneva Gas Protocol, effectively limiting the prohibitions to one of no first use. For instance, the United States deposited a reservation in 1975 whereby “[t] he Protocol shall cease to be binding on the government of the United States with respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or devices, in regard to an enemy state if such state or any of its allies fails to respect the prohibitions laid down in the Protocol”. It was not until the adoption of the Chemical Weapons Convention in 1993 that the prohibition of use of all chemical weapons as a method of warfare was unequivocally endorsed [see: Chemical Weapons Convention (1992)]. While the underlying principle at the time of the adoption of the 1925 ­Geneva Gas Protocol was the prohibition of means and methods of warfare of a nature to cause superfluous injury [see: Superfluous Injury and Unnecessary Suffering], the outlawing of chemical warfare may also be understood in terms of respect for the rule of distinction and the corresponding prohibition on use of inherently indiscriminate weapons [see: Distinction; Indiscriminate  ­Attacks]. In the preamble to a Resolution adopted in 1969, the unga stated that biological and chemical weapons “are inherently ­reprehensible

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because their effects are often uncontrollable and unpredictable” [unga ­Resolution 2603 A (xxiv) (1969)]. According to the icrc, although three States voted against the Resolution and thirty-six abstained, the disagreement was primarily in relation to herbicides and not the general principles [rule 71 icrc Customary ihl Study]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

D. Schindler, J. Toman, The Laws of Armed Conflicts (1988), p. 126.

Geneva Law. The expression Geneva law commonly refers to the body of ihl rules governing the protection of persons who are in the power of a party to an armed conflict. The most important stages of the development of this branch of law all took place in Geneva, largely through the work of the icrc [see: ­International Committee of the Red Cross]. Geneva law can be traced to Henry Dunant’s idea to provide protection to wounded soldiers on the battlefield and to the medical personnel caring for them. His efforts led to the adoption of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which was subsequently updated in 1906, 1929, and 1949 [see: Dunant, Henry]. The scope of protection of Geneva law has been gradually extended to other categories of individuals affected by international armed conflicts, namely wounded, sick and shipwrecked soldiers at sea [the Hague Convention (iii) on Maritime Warfare of 1899; the Hague Convention (x) on M ­ aritime Warfare of 1907; gcii; see: Geneva Convention ii], prisoners of war [­Geneva Convention on Prisoners of War of 1929; gciii; see: Geneva Convention iii], and civilians in the hands of the enemy [see: GCIV; Geneva Convention iv]. These rules share a common goal in that they govern the protection of specific categories of protected persons, who do not or no longer participate in hostilities (hors de combat), and who are directly or indirectly affected by armed conflicts [see: Protected Persons]. Individuals in the hands of a party to a non-international armed conflict are protected under Common Article 3 GCs [see: Common ­Article 3]. Geneva law is often contrasted with “Hague law”. While Geneva law applies to individuals already affected by armed conflict, Hague law regulates the use of means and methods of warfare, which may affect combatants and ­non-­combatants [see: Hague Law]. Due to their distinct aims, it has been ­argued that “Hague law provides protection ahead of Geneva law, and focuses

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on prevention” [F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844) irrc (2001), p. 905]. This is a convenient dichotomy, but it must be nuanced. Both branches of law ultimately share the same goal, are based on the same principles, and cannot exist independently from each other. In practice, they have always ­intersected and it is sometimes difficult to determine whether a rule pertains to Hague law or Geneva law [Bugnion, pp. 907–910; Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 21–24]. For instance, rules governing the protection of medical personnel and units, which are located in Geneva law texts, also undeniably relate to the conduct of hostilities [see: Medical Personnel; Medical Units and Establishments]. The distinction between Geneva law and Hague law has become even more relative with the adoption of the two APs in 1977, which contain rules on the protection of persons in the power of a party to the armed conflict, as well as rules on the conduct of hostilities [see: Additional Protocol i; Additional Protocol ii]. In a landmark ruling, the icj established that “[t]hese two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system […]. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 75]. Thus, while the Geneva law and Hague law labels may be useful for didactic purposes, they, in fact, designate two largely overlapping and complementary sets of rules. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844) irrc (2001). E. David, Principes de Droit des Conflits Armés (2012), pp. 471–630. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 21–24. R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008), pp. 40–41.

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

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killing, torture or inhuman treatment, biological experiments, wilfully causing great suffering, or causing serious injury to body or health. Under gci, gcii, and gciv in particular, grave breaches also include the extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Under gciii and gciv, grave breaches extend to compelling a prisoner of war or a protected civilian to serve in the armed forces of the hostile power, and wilfully depriving a prisoner of war or a protected person of the rights of fair and regular trial prescribed in those ­Conventions too. Finally, under gciv, grave breaches encompass unlawful deportation or transfer of a protected person, the unlawful confinement of a protected ­person, and the taking of hostages as well. api of 1977 extends the application of the grave breaches regime to additional acts. Article 11 api identifies, as grave breaches, unjustified medical procedures seriously endangering the physical or mental health and integrity of persons, in particular physical mutilations, medical or scientific experiments, and removal of tissue or organs for transplantation. Article 85(3) api lists additional violations as grave breaches, when committed wilfully and when causing serious injury to body or health, namely: making the civilian population or individual civilians the object of attack; launching an indiscriminate attack, affecting the civilian population or civilian objects, in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; launching an attack against works or installations containing dangerous forces, in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; making non-defended localities and demilitarised zones the object of attack; making a person the object of an attack in the knowledge that he is hors de combat; and the perfidious use of the distinctive emblem of the red cross and red crescent or other protective signs. Moreover, Article 85(4) api identifies additional violations as grave breaches, when committed wilfully, namely: the transfer by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; unjustifiable delay in the repatriation of prisoners of war or civilians; practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; attacking clearly recognised historic monuments, works of art, or places of worship, which constitute the cultural or spiritual heritage of people and to which special protection has been given, causing, as a result, extensive destruction thereof, when such objects are not located in the immediate proximity of military objectives, or used by the adverse party in support of its military effort; and depriving a person protected by the GCs or by api of the rights of fair and

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regular trial. However, in comparison to the GCs, the grave breaches provisions of api cover a broader range of protected persons [see: Protected Persons]. They, namely, extend to persons who are in the power of the adverse party or who are interned, detained or otherwise deprived of liberty and to medical or religious personnel and medical units or transports under the control of the adverse party [arts. 11(1); 85(2) api]. Grave breaches of the GCs are also included in the jurisdiction of numerous international criminal tribunals, namely the icty [art. 2 icty Statute], the icc [art. 8(2)(a) icc Statute], the eccc [art. 6 eccc Law], as well as the Special Panels for Serious Crimes in East Timor [Section 6(1)(a) untaet Regulation No. 2000/15], the Supreme Iraqi Criminal Tribunal [art. 13(a) sict Statute], and the Extraordinary African Chambers within the Courts of Senegal [art. 7(1) eac Statute]. Certain grave breaches of api are included in the jurisdiction of the icty [art. 3 icty Statute] and of the icc [art. 8(2)(c) icc Statute] too. International jurisprudence has reaffirmed the customary status of the grave breaches p ­ rovisions, as well as the individual criminal responsibility for such violations [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, paras. 79–84; Judgment, Duch, eccc, Trial Chamber, p ­ aras. 400–408; Judgment, Habré, eac, Trial Chamber, para. 1620; see also: rules ­156–157 icrc Customary ihl Study]. Besides the matter of inherent gravity, grave breaches differ from other violations of ihl in three other respects [see: War Crimes; Serious Violations of the Laws and Customs of War]. First, the grave breaches provisions of the GCs and of api are only applicable during an armed conflict of an international character, which include situations of State occupation, while violations of Common Article 3 GCs and violations of apii are exclusively relevant to conflicts not of an international character [see: Non-International Armed Conflict]. As noted by the icty Appeals Chamber, however, this distinction might be gradually eroding, in light of the evolution of modern day warfare and its impact on State practice [Tadić, para. 83]. This could, in the future, bring about a change in the opinio juris and lead to the application of the grave breaches regime to armed conflicts not of an international character as well [see: ­Customary International Law]. Second, the protection afforded under the grave breaches regime does not apply generally to any civilian or civilian property, but is limited to those protected by each of the GCs and api. There is no distinction among grave breaches and other violations of ihl, however, insofar as the perpetrators are concerned. Any person, in principle, can commit a war crime, including a grave breach [Tadić, paras. 80–81; Judgment, Blaskić, icty, Appeals Chamber, para. 170; Judgment, Naletilić et al., icty, Appeals Chamber, paras. 110–121; see: Individual Criminal Responsibility]. Third, the GCs ­establish a

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mechanism to punish and prevent the commission of grave breaches, which does not apply to other violations of ihl. This mechanism is commonly referred to as aut dedere aut iudicare (extradite or prosecute) or sometimes as (a form of) universal jurisdiction. The GCs provide for an express obligation on the High Contracting Parties to prosecute offenders who perpetrate grave breaches. To this effect, parties are duty-bound to enact legislation establishing criminal sanctions for individuals who commit or order the commission of grave breaches [see: Penal Sanctions and Legislation]. The parties are also under an obligation to search and bring these individuals before their courts, regardless of their nationality. Alternatively, they may, in accordance with their own legislation, hand over such individuals to another High Contracting Party, provided that the latter has made a prima facie case for prosecution [art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv]. Although api does not contain a comparable mechanism for the prevention and punishment of grave breaches of this instrument, it establishes an obligation for States parties and the parties to the conflict to “repress grave breaches, and take measures necessary to suppress all other breaches, of the [Geneva] Conventions or of this Protocol which result from a failure to act when under a duty to do so” [art. 86(1) api]. Matteo Crippa – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 17–38. icrc, Information and Observations on the Scope and Application of the Principle of Universal Jurisdiction (2016). G. Mettraux, International Crimes and the Ad Hoc Tribunals (2006), pp. 54–89. K. Roberts, ‘The Contribution of the icty to the Grave Breaches Regime’, 7(4) jicj (2009).

Guerrilla. Guerrillas are fighters, included in the category of irregular forces. They often use methods of warfare such as sabotage and ambush. In situations of international armed conflict, guerrillas may be protected under ihl, provided they meet the relevant criteria required for members of regular armed forces. Pursuant to Article 4(A)(2) gciii, in order to be eligible for prisoner of war status [see: Combatants; Prisoners of War] a guerrilla must: belong to a party to the conflict and be commanded by a person responsible for his subordinates; wear a distinctive sign recognizable from a distance;

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carry arms openly; and observe the laws and customs of war. With respect to irregular forces, this provision is also considered to be customary international law [rule 4 icrc Customary ihl Study]. On the other hand, no special allowances or consideration appears to have been given to guerrilla fighters in gciv. Guerrilla resistance movements existed at the time of the drafting of GCs. However the drafters likely believed that the phenomenon of guerrilla fighting could and should be limited in the future [1987 icrc Commentary api, para. 1372]. When the APs were being debated and established, the issue of guerrilla fighters was thus not a new one. However, by 1977, there had been a significant increase in guerrilla activities in countries that had not yet achieved independence and, thus, api acknowledged this and tried to reflect that ­guerrilla ­movements operate differently from regular forces [see: Additional Protocol i]. Specifically, api attempts to recognize that there are some situations in which guerrillas cannot distinguish themselves throughout military operations and still have any chance of success. Similarly to Article 4 gciv, Article 44 api states that combatants are obliged to distinguish themselves from the civilian population. However, the provision contains a controversial exception for situations where “owing to the nature of the hostilities an armed combatant cannot so distinguish himself”. In such situations, the only requirement is that the guerrilla fighter carries his arms openly during an attack and while engaged in a military deployment preceding the attack [art. 44 api]. While a contentious provision, the intention was to both increase the legal protection of guerrilla fighters to the extent possible, and thereby encourage their compliance with the laws and customs of armed conflict, while simultaneously not reducing the protection of the civilian population [1987 icrc Commentary api, para. 1685]. This provision was contested during its drafting and remains controversial to date, with some believing that it puts civilians at risk by eroding the principle of distinction [icrc Customary ihl Study, p. 387, fn. 22]. There is, however, still an expectation that guerrillas will comply with ihl as a whole, as set out in Article 4(A)(2)(d) gciii, despite the fact that they may not be able to apply the rules in their entirety, given that some ihl provisions require the State machinery for their full implementation [1987 icrc ­Commentary api, para. 1688]. Although Article 44(3) api is not considered to be a norm of customary ­international law, it is useful in understanding debates around guerrillas and unlawful combatants [see: Combatants]. It is also worth noting that in situations where api does apply, the acceptance by guerrilla fighters of the r­ equirement of carrying arms openly during and prior to an attack – with the risk of being identified as a legitimate military target from this moment onwards – is what

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distinguishes a guerrilla from a terrorist [1987 icrc Commentary api, para. 1712; see: Terrorism (International Law); Terrorist Organizations]. Unless a State is a party to api, the rule for guerrillas remains that combatants are required to distinguish themselves from the civilian population while engaged in an attack or when they are involved in a military operation preparing an attack. If they fail to do so, they lose the right to be treated as prisoners of war [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005), p. 384]. In order for a guerrilla (who would otherwise have fit the criteria for combatant status) to lose such status (because this individual is not distinguishing his or herself) he or she must be caught in the act. That is, the assessment of whether a guerrilla is properly distinguishing him or herself, will occur at the time of capture. Guerrillas who have forfeited prisoner of war status, must nevertheless be afforded the fundamental guarantees set out in Common Article 3 GCs and Article 75 api [see: Fundamental Guarantees]. These are both considered to be customary international law. In non-international armed conflict, ihl provides even less guidance as to the definition of guerrillas and how they are to be classified. Suffice it to say that any guerrillas who are captured should be treated in accordance with Common Article 3 GCs [see: Common Article 3]. Unlike international armed conflicts, there is no prisoner of war status in non-international armed conflicts, so the debate regarding the status of guerrillas is moot in this context [see: Prisoners of War]. Therefore, they should be treated humanely as per Common Article 3 GCs but, nevertheless, unlike prisoners of war in i­ nternational armed conflicts, they can be tried and punished for their involvement in the armed conflict. Daniela Gavshon – the views expressed are those of the author alone and do not necessarily reflect the views of the Public Interest Advocacy Centre Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005), pp. 384–395. L. Olson, ‘Status and Treatment of Those Who Do not Fulfil the Conditions for Status as Prisoners of War’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).

Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907). One of the first steps towards the codification of the laws of war was taken in 1874, when 15 European States adopted, but did not ratify, a declaration concerning the laws and customs of war during the Brussels Conference.

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

364 Hague Convention for the Protection of Cultural Property (1954) p. 366; Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, para. 89]. In line with the general view of warfare at that time, namely that the only legitimate object of conducting war is to weaken the military forces of the enemy, the purpose of the Hague Convention was to revise the general laws and customs of war and to “defin[e] them with greater precision or to confin[e] them within such limits as would mitigate their severity as far as possible” [preamble Hague Convention (iv)]. Nevertheless, during the 1907 Conference, it had not proved possible to find mutual agreement on all circumstances to be covered by the regulations, such as the position of members of the civilian population taking up arms against an occupying power. Therefore, the Martens clause, first introduced by the 1899 Hague Convention (ii), was taken over in the Preamble of the 1907 Hague Convention (iv) in a slightly revised version [see: Martens Clause]. Article 2 of the 1907 Hague Convention (iv) contains the “si omnes” or general participation clause, specifying that the Convention and Regulations apply only if all parties to the conflict are party to the Convention (i.e. if a State not party to the Convention were party to the conflict, the provisions would not apply to any party to that conflict). However, this clause has fallen into disuse, as most of the provisions are considered customary law, as declared during the Nuremberg Trials in response to the si omnes clause being invoked as defence [Trial of the German Major War Criminals, p. 65]. Furthermore, Common Article 2(3) GCs, clarifying Article 25 of the 1929 Geneva Convention, rendered the si omnes clause obsolete [see: Common Article 2]. Apart from some new procedural rules, Article 3 of the 1907 Hague Convention (iv) was introduced to sanction violations of the Regulations. Subsequently, Article 91 api reaffirmed Article 3 without modifying it, thus evidencing its customary nature. Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his feedback) – the views expressed are those of the author alone and do not necessarily reflect the views of the Institut de Droit International or the United Nations High Commissioner for Refugees Bibliography

B. Baker, Hague Peace Conferences (1899 and 1907), in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2009).

Hague Convention for the Protection of Cultural Property (1954) and Its Protocols. Cultural property is closely intertwined with the identity of a ­population. Safeguarding it can help re-establish the identity of a broken community, linking its past with its present and future [K. Chamberlain, ‘Casualties

Hague Convention for the Protection of Cultural Property (1954) 365

of Armed Conflict: Protecting Cultural Property’, 17 yihl (2014), p. 190]. The loss of cultural property is also a loss to humankind. As stated in the preamble of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention), “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”. Drafted in the wake of large-scale destruction of cultural heritage during World War ii and inspired by the 1949 GCs, the 1954 Hague Convention is the paramount multilateral treaty for the protection of cultural heritage during armed conflict. World War ii also saw the systematic pillage of works of art from occupied territories, prompting the adoption of the 1954 Protocol, which aims at preventing exportation of cultural property and providing for restitution of illegally exported objects from occupied territories. Against the background of the damage caused to cultural property during the first Gulf War and the conflicts in the former Yugoslavia, and influenced by the APs, States adopted a Second Protocol to the 1954 Convention in 1999 (1999 Protocol). It seeks to “update and clarify” the 1954 Convention to better reflect “developments in warfare and the modern battlefield”. To qualify for protection under the 1954 Convention, the cultural property must be “of great importance to the cultural heritage of every people”. This encompasses movable and immovable property, as well as buildings designed to preserve or shelter movable cultural property and centres containing large amounts of cultural property. The two core provisions require the “safeguarding” of and “respect” for cultural property [art. 2 1954 Hague Convention]. With respect to safeguarding, Article 3 requires States parties to take “appropriate measures” in peacetime to safeguard cultural property in their territory against the foreseeable effects of armed conflict. More guidance on what these measures might entail is provided for in the Second Protocol [art. 5 1999 Protocol]. The obligation to “respect” cultural property is set out in Article 4 and ­applies in times of armed conflict. It requires refraining from: (a) using cultural property or its immediate surroundings in a way that would expose it to risk of damage or destruction; and (b) committing any act of hostility against cultural property [see: Attacks against Historic Monuments, Works of Art and Places of Worship]. However, this obligation can be waived “where military ­necessity imperatively requires such a waiver” [art. 4(2) 1954 Hague Convention]. The Convention moreover requires States parties to prevent, prohibit, and put an end to any form of theft, pillage, misappropriation or acts of vandalism against cultural property, and to refrain from requisitioning movable cultural property on the territory of another party [art. 4(3) of the 1954 Hague Convention]. Commentators disagree on whether this obligation has an exter-

366 Hague Convention for the Protection of Cultural Property (1954) nal ­element, i.e. entailing a duty to prevent theft, pillage, and misappropriation not only by one’s own troops, but also by any other actor [A-M. Carstens, ‘The ­Hostilities-Occupation Dichotomy and Cultural Property in Non-International Armed Conflicts’, 52 Stan. J. Int’l L. (2016), pp. 21–22]. To notify the protected status of cultural property, the Convention introduces the use of a distinctive emblem, that is the Blue Shield [arts. 6, 16, 17 1954 Hague Convention]. The use of this emblem is not compulsory and the absence of a distinctive emblem does not relieve an opposing party of the duty to protect that property during armed conflict. The opposing party must thus determine for itself what structures and objects fall within the definition contained in Article 1. In making this determination, O’Keefe considers that the “safest course” is to “err on the side of caution” and suggests that every example of cultural property described in that article should be protected [R.  O’Keefe,  The  ­Protection of Cultural Property in Armed Conflict (2006), p. 111]. Article 19 provides that, in non-international armed conflicts, parties are to “apply as a minimum the provisions of the present Convention which relate to respect for cultural property”. While this clearly includes Article 4, doubt exists as to which other provisions, if any, apply. Chamberlain opines that “[i]t would be consistent with the object and purpose of the Convention to interpret ‘respect for cultural property’ in the widest sense” [Chamberlain, p. 201]. Article 5 sets out obligations in the event of occupation [see: Occupation]. The occupying power must support the competent authorities of the occupied territory to safeguard and preserve its cultural property. Where such property is damaged by military operations and competent national authorities are unable to preserve it, the occupying power must take those measures itself in cooperation with those authorities. Part i of the 1954 Protocol, moreover, requires contracting parties to prevent the exportation of cultural property outside a territory occupied by it. This applies irrespective of whether the territory occupied belongs to another contracting party or not. Furthermore, the 1954 Protocol requires any contracting party to seize cultural property imported into its territory directly or indirectly from any occupied territory. Any property seized must be returned to the competent authorities at the close of hostilities and must never be retained as war reparations. Part ii of the 1954 Protocol deals with cultural property coming from the territory of one contracting party and deposited in the territory of another to protect that property from the dangers of armed conflict. Such property must be returned to the competent authorities of the territory from which it came at the end of hostilities. This part applies in both international and non-international armed conflicts.

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While the 1954 Protocol has not been considered a great success, the principle that an occupying power must prevent illicit export of cultural property from the territory it occupies now constitutes customary international law [rule 41 icrc Customary ihl Study]. Moreover, Part i of the Protocol has largely been supplemented by Article 9(1) of the Second Protocol of 1999 which, inter alia, obliges a party in occupation to prohibit and prevent “any illicit export, or other removal or transfer of ownership of cultural property”. The Second Protocol of 1999 increases the legal protection of cultural property and addresses certain weaknesses of the 1954 Hague Convention. Important features include enhanced provisions for the safeguarding of cultural property in peacetime; the establishment of more stringent conditions for invoking “imperative military necessity”; the establishment of detailed precautions in attack and against the effects of hostilities; provisions for the protection of cultural property in occupied territory; the establishment of a new regime of “enhanced protection” to replace the “special protection” regime of the 1954 Hague Convention; provisions for the establishment of jurisdiction over and prosecution and extradition of persons committing serious violations of the Protocol; and the establishment of a Fund and a Committee for the Protection of Cultural Property in the Event of Armed Conflict. Ellen Nohle, Gilles Giacca – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

K. Chamberlain, ‘Casualties of Armed Conflict: Protecting Cultural Property’, 17 yihl (2014). R. O’Keefe, The Protection of Cultural Property in Armed Conflict (2006).

Hague Declaration (iv, 3) Concerning Expanding Bullets (1899); see: DumDum (Expanding) Bullets Hague Law. The expression Hague law commonly refers to the body of ihl rules regulating the conduct of hostilities, which includes limitations and prohibitions on certain means and methods of warfare. This set of rules has been codified in a number of Conventions adopted in The Hague. Hague law can be traced back to an initiative by Czar Alexander ii of Russia that led to the adoption, in 1868, of the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, in Saint Petersburg [see: Saint Petersburg Declaration (1868)]. It paved the way for

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the 1899 Hague Peace Conference, which led to the adoption of six Hague Conventions and Declarations: Convention (ii) on the Laws and Customs of War on Land and its annexed regulations; Convention (iii) on Maritime Warfare; Declaration (iv,1) prohibiting Projectiles from Balloons, and Other Methods of Similar Nature; Declaration (iv,2) concerning Asphyxiating Gases; Declaration (iv,3) concerning Expanding Bullets; and the Final Act of the International Peace Conference. These instruments were revised and complemented by other Conventions adopted at the second Hague Peace Conference in 1907: Convention (iii) on the Opening of Hostilities; Convention (iv) on War on Land and its Annexed Regulations [see: Hague Convention (IV) Concerning the Laws and Customs of War on Land (1907)]; Convention (v) on Neutral Powers in case of War on Land; Convention (vi) on Enemy Merchant Ships; Convention (vii) on Conversion of Merchant Ships; Convention (viii) on Submarine Mines; Convention (ix) on Bombardment by Naval Forces; Convention (x) on Maritime Warfare; Convention (xi) on Restrictions of the Right of Capture; Convention (xii) on the International Prize Court; Convention (xiii) on Neutral Powers in Naval War; Declaration (xiv) on Explosives from Balloons; and the Final Act of the Hague Peace Conference. The rules and principles enshrined in the 1899 and 1907 Hague Conventions were subsequently reaffirmed and developed in further treaties, including the 1925 Geneva Protocol on Asphyxiating or Poisonous Gases, and of ­Bacteriological Methods [see: Geneva Gas Protocol (1925)]; the 1954 Hague ­Convention for the Protection of Cultural Property [see: Hague Convention for the P ­ rotection of Cultural Property (1954) and its Protocols]; the 1972 Convention on the P ­ rohibition of Biological Weapons [see: Biological Weapons Convention (1972)]; and the 1980 Convention prohibiting Certain Conventional Weapons and its Protocols [see: Convention on Certain Conventional Weapons (1980)]. This body of law imposes limits on the conduct of warfare in two manners. It sets forth rules outlawing or limiting the use of specific means or methods of warfare (e.g. poisonous gases, expanding bullets). It also includes general principles governing the choice of means or methods of warfare, such as the prohibition to use means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering, enshrined in the Preamble of the 1868 St. Petersburg Declaration [see: Superfluous Injury and Unnecessary Suffering], or manner in which attacks may be conducted [see: Distinction; Proportionality; Precautions (Active); Precautions (Passive)]. Currently, it is largely accepted that the majority of rules on the conduct of hostilities are also applicable as a matter of customary law to both international and non-international armed conflicts. Moreover, even where no specific

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treaty rule restricts or prohibits a particular form of conduct, it remains subject to the “laws of humanity and the requirements of the public conscience”, as expressed in the Martens Clause [see: Martens Clause]. Whereas a traditional distinction has been made between Hague law and Geneva law, this distinction has limited practical relevance nowadays [see: Geneva Law]. Elvina Pothelet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

F. Bugnion, ‘Law of Geneva and Law of the Hague’, 83 (844) irrc (2001). E. David, Principes de Droit des Conflits Armés (2012), pp. 273–471. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 21–24. R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008), pp. 40–41.

Hague Peace Conferences; see: Hague Law; Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907); Hague Regulations (1907) Hague Regulations (1907). The Hague Regulations (Regulations) are annexed to the 1907 Hague Convention (iv) [see: Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907)]. They can be considered as instructions directed to the armed forces of the States, “intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants” [preamble Regulations] and to limit “the choice of means and methods of injuring the enemy in an international armed conflict” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 75]. The Regulations are divided into three sections on: belligerents; hostilities; and military authority over the territory of the hostile State. The section on the internment of belligerents and the care of the wounded in neutral countries that previously appeared in the 1899 version had been included in the 1907 Hague Convention (v) instead. Some notions of importance will be shortly touched upon, without prejudice to the continued relevance of other notions (especially the rules relating to flags of truce and armistices). The section on belligerents specifies the status of belligerents, which is central as, once a person falls within this definition, the laws, rights and duties of war apply [see: Combatants]. It also provides for the right to be recognized

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and treated as prisoner of war in case of capture by the enemy [see: Prisoners of War]. Categories of belligerents include: (i) the armed forces, militia and volunteer corps, when fulfilling the conditions of having a responsible command, being recognizable, carrying arms openly, and respecting the laws and customs of war; (ii) persons taking part in a levée en masse, if they carry arms openly and respect the laws and customs of war [see also: art. 4 gciii; arts. 43–44 api; Combatants; Civilians]. The treatment of prisoners of war is also regulated [arts. 4–28 Hague Regulations]. The 1929 Geneva Convention on prisoners of war completed the provisions of the Regulations, providing more detail and precision and attempted to close protection gaps. The 1949 gciii replaced the 1929 Geneva Convention and again complemented the Regulations [art. 135 gciii]. Many articles correspond with each other, but gciii is nevertheless much more independent from the Regulations than was the case for the 1929 Geneva Convention [art. 135 gciii; 1960 icrc Commentary gciii, pp. 636, 640]. Section ii, Chapter 1 on the conduct of hostilities specifies the limitations with regard to the means and methods of warfare. First, Article 22 states that “the right of belligerents to adopt means of injuring the enemy is not unlimited”, whereas Article 23 states that it is prohibited to inflict unnecessary suffering, listing concrete acts, such as the prohibition to kill or wound a person hors de combat, to declare that no quarter will be given, and to employ weapons that cause unnecessary suffering [see: Superfluous Injury and Unnecessary Suffering; Quarter]. While Article 23(b) prohibits killing or wounding individuals “treacherously”, Article 24 specifies that ruses of war are permissible [see: Ruses of War; Perfidy]. Article 23(g) on the destruction of enemy property brings in the military necessity concept, stating that such a destruction or seizure is prohibited “unless […] imperatively demanded by the necessities of war” [see: Military Necessity]. Article 25, on the attack of undefended towns, differs slightly from the 1899 version through the addition of the words “by whatever means”, which was meant to take into account the technological developments of that time. This concept has evolved to the rule that only military objectives may be attacked [see: Distinction; Military Objectives]. Article 26 lays down a precautionary measure whereby authorities should be warned [see: Precautions, Active]. Articles 27 and 56 aim at protecting cultural property, which was later supplemented by a dedicated instrument [see: Hague Convention for the Protection of Cultural Property (1954) and its Protocols]. Furthermore, Articles 28 and 47 contain the prohibition of pillage [see: ­Pillage]. The Section on hostilities also covers spies, flags of truce, capitulations and ­armistices [see: Spies; Armistice].

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Section iii regulates occupation, laying down the definition in Article 42 that “territory is considered occupied when it is actually placed under the authority of the hostile army” and that it “extends only to the territory where such authority has been established and can be exercised” [see: Occupation]. Occupation can be understood as a status quo and of a temporary nature, which is why the rules relating to occupation are focused on the continuance of everyday life with as little changes as possible. Article 43 of the Regulations thus explains that the territory has to be administered, as far as possible, as before the occupation. Rules on the legal position of the inhabitants requiring respect for certain rights [art. 46 Regulations] are laid down, pointing out that no allegiance is owed [art. 45 Regulations]. The principle of individual responsibility is provided for in Article 50, which prohibits collective sanctions by the occupying State against the population in response to criminal acts committed by an individual [Judgment, re Rauter, Dutch Special Court of Cassation, pp. 1­ 33–137]. The subsequent Article 33 gciv is based on Article 50 of the Regulations and clarifies further the prohibition of collective penalties [see: Collective Punishment]. It is also worth noting that Article 33(3) gciv includes the prohibition of reprisals against protected persons and their property, which was not mentioned in the Regulations, even though the Brussels Declaration and the Oxford Manual had mentioned the need to cover reprisals [see: Reprisals against Civilians]. Moreover, rules on requisition, contributions and the seizure, destruction and administration of property are laid down in Articles 48 to 56 of the Regulations [see: Requisitions; Property, Destruction and Appropriation/Seizure of]. In sum, the 1949 GCs, the 1977 Aps, as well as other ihl treaties and customary law have reaffirmed, given precision and, in some cases, modified the Regulations in order to strengthen and improve protection under ihl but, overall, the Regulations are still relevant today, both as treaty and as customary law. Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his feedback) – the views expressed are those of the author alone and do not necessarily reflect the views of the Institut de Droit International or the United Nations High Commissioner for Refugees Health; see: Seriously Endangering the Physical or Mental Health or Integrity of Protected Persons; Public Health and Hygiene Hors de Combat. The protection of persons hors de combat (which literally translates as “outside the fight”) is one of the bedrocks of ihl. It arises out of one of the fundamental tenets of this body of law, namely the recognition that

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warfare ought to be limited to weakening the military forces of the enemy [see: International Humanitarian Law]. Considering that a person hors de combat no longer poses a military threat, harming or killing such a person exceeds this objective [see: Quarter]. The need to protect persons hors de combat has been recognised in a number of historical ihl documents [e.g. art. 71 Lieber Code; art. 23(c) Hague Regulations]. Common Article 3 GCs and Article 41 api currently enshrine such protection. Persons hors de combat are, furthermore, protected under customary ihl in international and non-international armed conflict alike [rule 47 icrc Customary ihl Study]. According to Article 41(2) api and Rule 47 icrc Customary ihl Study, a person may be hors de combat or should, in the circumstances, be recognised as such for a number of reasons. First, this is the case where a person is “in the power” of an adverse party. Combatants who have “fallen into the power” of the enemy are protected under gciii [see: Prisoners of War]. However, the formulation relating to persons hors de combat is broader. It may, therefore, also encapsulate situations that would fall outside of gciii protection [1987 icrc Commentary api, para. 1612]. gciii protection nevertheless applies as soon as it is established that a combatant has “fallen into the power” of the enemy, including the obligation of humane treatment [see: Deprivation of Liberty, Treatment]. Second, those who clearly express an intention to surrender are considered to be hors de combat. Third, a person is hors de combat if he or she has been rendered unconscious or is otherwise incapacitated by wounds or sickness and, as a result, is incapable of defending him- or herself. In this regard, there is overlap with the protection afforded to the wounded and sick [see: Wounded and Sick]. Although not mentioned in Article 41 api (in contrast to Rule 47 icrc Customary ihl Study), such protection is considered to extend to the shipwrecked too [1987 icrc Commentary api, para. 1620; see: Shipwrecked]. Unlike Article 41 api, Common Article 3 GCs distinguishes between “members of armed forces who have laid down their arms and those placed hors de combat”, although both categories of persons remain protected under this provision. Common Article 3 GCs otherwise mentions similar or identical situations in which a person is considered to be hors de combat, that is “sickness, wounds, [and] detention”. It also adds “any other cause”, which may signal a wider approach to hors de combat status. Any divergence that may arise with Article 41 api is, in any event, diminished by the corresponding rule of customary ihl. Persons hors de combat are not to be made the object of attack [see: Attacks against Civilians and Persons Hors de Combat]. The reference to “persons”

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indicates a wide reach and, therefore, “both regular combatants and those combatants who are considered to be irregular, both those whose status seems unclear and ordinary civilians” are entitled to protection [1987 icrc Commentary api, para. 1606; see Combatants; Civilians]. Violation of this rule is a grave breach of api [art. 85(3)(e) api; see: Grave Breaches] and is punishable before the icc [art. 8(2)(b)(vi), 8(2)(c)(i)-(ii) icc Statute]. Since the absence of a military threat is the rationale underlying the protection afforded to persons hors de combat, it must vice versa hold true that such protection is lost if this rationale becomes inapplicable. Thus, measures permitted under ihl may be employed against a person hors de combat who engages in any hostile act or attempts to escape. Furthermore, feigning hors de combat status may amount to an act of perfidy in certain circumstances [art. 37(1)(a)-(b) api; rule 65 icrc Customary ihl Study; see: Perfidy]. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

D. Banaszewska, ‘Hors de Combat’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2013).

Hospital and Safety Zones and Localities. These types of zones are meant to be permanent places of refuge, where certain categories of persons can find protection from the effects of an armed conflict [see also: Specially Protected Zones]. Although gci and gciv envisage hospital and safety zones and localities in international armed conflicts only, they may be set up in non-­international armed conflicts as well by means of special agreements [­common art. 3(3) GCs; Special Agreements]. Hospital zones and localities under gci aim to protect wounded and sick military personnel, persons entrusted with the organisation and administration of such areas, and medical personnel [art. 23(1) gci; see: Combatants; Wounded and Sick; Medical Personnel; Hospitals]. Hospital and safety zones and localities under gciv, in turn, are designed for the protection of wounded and sick civilians, aged persons, children under fifteen, expectant mothers, and mothers of children under seven [art. 14(1) gciv; see: Civilians; Children; Women]. It should be noted that, in practice, the same area may host all these categories of persons. The local civilian population may also find refuge in such zones [2016 icrc Commentary gci, paras. 1916–1926]. Hospital and safety zones and localities may be established in peacetime or after the outbreak of hostilities. As most specially protected zones, it is

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­ ecessary that the parties to the conflict adopt an agreement to create a new n zone or recognise an existing one; in this respect, they may draw on the Draft Agreements annexed to gci and gciv. While ihl does not oblige States to establish hospital and safety zones and localities, it envisages that both the protecting powers and the icrc may lend their good offices for the institution or recognition of such zones [art. 23(2)-(3) gci; art. 14(2)-(3) gciv; see: Protecting Powers]. Hospital and safety zones and localities may be set up either in a State’s ­national territory or in occupied territory. Being permanent places of refuge, they must be located far from the battlefield or in areas that, foreseeably, will not be essential to the military effort. It is also fundamental to delimit and mark them clearly. Military activities of any kind must not take place in such zones, which must be completely de-militarised and not be militarily d­ efended [arts. 2, 4–6 gci Annex 1]. Hospital and safety zones and localities cannot be the object of attacks. This rule applies in both international and non-international armed conflicts as a matter of customary law [rule 35 icrc Customary ihl Study]. A zone that fails to fulfil the requirements set in gci or gciv must anyway be protected as a civilian object, unless it qualifies as a military objective [Military Objectives; Civilian Objects]. Similarly, persons sheltered therein enjoy the p ­ rotection ­afforded to civilians and persons hors de combat [see: Protected Persons, ­Civilians, Hors de Combat]. Under the icc Statute, it is a war crime to attack hospital zones and localities [art. 8(2)(b)(ix), 8(2)(e)(iv) icc Statute]. Furthermore, targeting hospital and safety zones and localities may amount to the war crimes of attacking civilians and civilian objects or attacking buildings and personnel employing protected emblems; it also constitutes a criminal offence under the domestic laws of several countries [icrc Customary ihl Study, p. 119]. One example of a protected area explicitly based on Article 23 gci and 14 gciv was created in Osijek and the surrounding areas in December 1991, by agreement between Croatia and the Socialist Federal Republic of Yugoslavia. Although not envisaged by gcii, the UK and Argentina created an area equivalent to a hospital zone at sea during the 1982 Falkland/Malvinas conflict (­so-called Red Cross Box). Protected areas in non-international armed conflicts, akin to hospital and safety zones and localities, have been established during the conflicts in Bangladesh (1971), Chad (1980), and Lebanon (1983). While practice shows that gci and gciv are not strictly applied in the creation of protected areas, the concepts envisaged therein are used as terms of reference [2016 icrc Commentary gci, paras. 1886–1887]. Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists

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Bibliography

B.N. Patel, ‘Protection Zones in International Humanitarian Law’, 39 Indian Journal of International Law (1999). N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions: A Commentary (2015), pp. 370–374.

Hospital Ships. Hospital ships have long been considered a proper subject for specific regulation in ihl. They were contemplated in The Hague Convention of 1899, whereas The Hague Convention of 1904 on Hospital Ships dealt with their exemption from many dues and taxes in ports. The fullest elucidation of the legal regime surrounding hospital ships, prior to gcii, is found in Article 8 of The Hague Convention x of 1907. A hospital ship is a vessel specifically built or equipped “solely with a view to assisting the wounded, sick and shipwrecked, to treating them, and transporting them […]” [art. 22 gcii; see: Wounded and Sick; Shipwrecked]. There are only a very few States that currently maintain dedicated and declared hospital ships within their maritime forces, and it is vital to distinguish a hospital ship from other multi-role vessels, which may incorporate high level medical facilities, but which are not entitled to the designation (and in most cases, the protections) of a hospital ship. In addition to States, “National Red Cross and Red Crescent Societies […], officially recognized relief societies or private persons may operate, under the control of a Party to the conflict, a hospital ship for the benefit of wounded, sick or shipwrecked members of armed forces at sea” [arts. 22, 24–25 gcii; 2017 icrc Commentary gcii, para. 2031]. Only a hospital ship that meets the definitional, ­notification, usage/conduct, and marking requirements set out in gcii [see, inter alia, arts. 22, 43 gcii; art. 22 api] is entitled to this status. However, other vessels may also be entitled to a functionally equivalent level of protection, including coastal rescue craft [art. 27 gcii; see: Coastal Rescue Craft] and “medical transports” and “other medical ships and craft” [e.g. arts. 38–40 gcii; art. 23 api; see: Medical Transports]. However, the presence of a sick-bay in a warship does not entitle that vessel to any alteration of status [art. 28 gcii], although the sickbay itself is entitled to protection as a medical facility [arts. 28, 34–35 gcii; see: Sick-Bays]. Hospital ships are, of course, exempt from attack, and their loss of protection is strictly regulated [arts. 22, 34–35 gcii; paras. 47–51 San Remo Manual; see: Acts Harmful to the Enemy]. They are, however, subject to certain measures of control by the belligerents as a quid pro quo to this specially protected status. For example, they are subject to the powers of search (to ensure they are being used for their proper purpose), and control (such as by designating

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a course to steer, and control of communications), by the belligerent parties [art. 31 gcii]. Two interesting, and still vexing, points of law related to hospital ships persist. The first is the requirement in art. 34 gcii that – as a condition of their special protection – “hospital ships may not possess or use a secret code for their wireless or other means of communication”. This is problematic in that the use of most modern communications systems (such as satellite communications) involve as a matter of course the encryption of data, even for routine communications such as sending and receiving weather reports. However, as the icrc has sensibly noted, the focus of this condition was, and remains, a “prohibition against using means of communication, irrespective of the technology involved, for military purposes and ‘acts harmful to the enemy’” [2017 icrc Commentary gcii, paras. 2389–2403]. The second vexing point of law relates to the arming of hospital ships for self-defensive purposes. One ­manifestation of this ongoing interpretive debate is the question as to whether this limitation allows the use of chaff and other passive/deflective systems, but prohibits the arming of hospital ships with Close-in Weapons Systems or other active missile defensive systems. Robert McLaughlin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

D.L. Grimord, G.W. Riggs, ‘The Unique and Protected Status of Hospital Ships under the Law of Armed Conflict’, in R.B. Jacques (ed.), Issues in International Law and Military Operations, 80 International Law Studies (2006).

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

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hospitals in non-international armed conflicts. Hospitals and other medical establishments are protected so they can carry out their essential function of enabling the treatment, care, and protection of the wounded and sick during armed conflicts. The rule that hospitals must be respected at all times entails that they may not be the object of attack [art. 19 gci; art. 18 gciv; art. 12 api; art. 11 apii]. This includes protection from direct attack and protection from the effects of attacks on other lawful military objectives. Parties to the conflict may inform each other of the location of hospitals to enhance their protection, including by providing gps coordinates. The parties should try to situate hospitals in locations where they will not be at risk due to attacks on military objectives [see: Precautions, Passive]. Failing to provide such information, or situating them in proximity to lawful military objectives, however, does not release the other party from its obligations to respect and protect hospitals. Hospitals that have been recognized and authorized by the competent authorities may also be marked with the red cross, red crescent, or red crystal emblem [see: Marking; Emblem]. The use of the emblem does not itself confer protection; instead, it can help to identify an object that due to its nature is protected under ihl. Hospitals can lose their special protection from attack if they are used to commit acts harmful to the enemy [see: Acts Harmful to the Enemy]. ­Enabling the provision of care for wounded and sick members of the armed forces, including enemy armed forces, may not be considered an act harmful to the enemy that is outside the humanitarian functions of the hospital. Furthermore, the fact that personnel in the hospital carry small arms [see: Small Arms and Light Weapons] for personal self-defence or defence of the wounded or sick in their care does not deprive the hospital of its protection. Hospitals may be guarded by sentries using light individual weapons for defensive purposes only, without that leading to the hospital losing its special protection. Furthermore, the temporary presence of small arms and ammunition that was in the possession of the sick or wounded brought in for treatment and care does not constitute an act harmful to the enemy [art. 22 gci]. Even if a hospital loses its protection from attack, however, it may only be attacked if it qualifies as a lawful military objective and after a clear warning has been given, naming, in all feasible cases, a reasonable time limit, and after such a warning has gone unheeded [art. 21 gci; art. 19 gciv; art. 13 api; art. 11 apii; see: Military Objectives]. Lindsey Cameron – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way

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Hostages. The term hostage is not a legal classification of persons under ihl. Notwithstanding, the taking of hostages is prohibited by various provisions of the 1949 GCs and their APs, none of which define “hostages”, probably due to the difficulty of providing a comprehensive meaning covering all possible scenarios. The prohibition of hostage-taking protects different groups of people depending on the applicable rule. In international armed conflict, Articles 34 and 147 gciv safeguard “protected persons” [see: Protected Persons], while Article 75(1) and (2)(c) api protects persons affected by international armed conflict, occupation, or national liberation war “who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the [GCs] or under [api]”. In non-international armed conflict, Common Article 3 GCs protects “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” and Article 4(2)(c) apii protects “all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted”. The prohibition of hostage-taking “can be defined as the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person in order to compel a third party to do or to abstain from doing any act, as an explicit or implicit condition for the release, safety or well-being of the hostage” [2016 icrc Commentary Common Article 3 GCs, p. 650]. Common Article 3 GCs indicates that the taking of hostages is one of the acts that “shall remain prohibited at any time and in any place whatsoever” [e.g. Judgment, Cruz Sánchez et al. v. Peru, IACtHR, paras. 269–270]. The prohibition of hostage-taking is considered to be a rule of ­customary ihl [rule 96 icrc Customary ihl Study]. There is no unanimity as to whether or not the deprivation of liberty ought to be unlawful in a hostage-taking situation under ihl. If this is indeed required, it means that people whose detention is lawful (such as prisoners of war or civilian internees), or not otherwise prohibited under ihl, will not be protected by the prohibition of hostage-taking, even if they are treated as such during their detention. Other sources have indicated that the unlawfulness of the detention is a requirement [e.g. Judgment, Blaškić, icty, Trial Chamber, para. 158; 1958 icrc Commentary gciv, p. 601]. However, the icrc has recently clarified that “­unlawful detention is not a precondition for hostage-taking. Persons whose detention may be lawful, such as in the case of civilians posing a security threat, could nevertheless be used as hostages, which would then qualify the

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situation as hostage-taking. The requisite intent to take hostages need not be present at the outset of a detention; it can develop during the detention” [2016 icrc Commentary Common Article 3 GCs, p. 653]. Furthermore, although gciii does not encompass any provisions prohibiting prisoners of war from being taken hostage, Rule 96 of the icrc Customary ihl Study states that “there is no indication that the offence is limited to taking civilians hostage”. Threats made to the hostage are illegal under ihl. However, threatening a person with the continuation of his or her detention does not necessarily amount to hostage-taking. For instance, if a negotiation is conducted to exchange prisoners, making such a threat to “someone whose release is not ­legally required” will not constitute hostage-taking. It would, however, be unlawful to make such a threat “if the detention would be arbitrary” [2016 icrc ­Commentary Common Article 3 GCs, p. 656]. The icc Statute prohibits hostage-taking as a war crime in Articles 8(2)(a) (viii) (for international armed conflicts) and 8(2)(c)(iii) (for non-­international armed conflicts). Additionally, Article 1 of the International Convention against the Taking of Hostages defines the offence of hostage-taking, for the purpose of that Convention. Marcela Giraldo – the views expressed are those of the author alone and do not necessarily reflect the views of the Colombian Special Jurisdiction for Peace or the Inter-American Court of Human Rights (the author was a lawyer at the InterAmerican Court of Human Rights at the time of writing the entries) Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 124–127, 406–407. H. Salinas Burgos, ‘The Taking of Hostages and International Humanitarian Law’, 29 (270) irrc (1989). D. Tuck, ‘Taking of Hostages’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions. A Commentary (2015).

Hostilities, Conduct of. The conduct of hostilities can be described as all ­actions in an armed conflict which constitute a hostile act undertaken against the enemy, whether taking place in an international or a non-international armed conflict. The actions falling under the conduct of hostilities stand in contrast to measures undertaken in the context of law enforcement, as the ­latter are usually not regulated by ihl but, rather, by domestic law and ihrl [see: Law Enforcement; International Human Rights Law]. The two bodies

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of law can nonetheless overlap regarding the same set of actions. While the conduct of hostilities is a term of art under ihl, it is important to stress that it is not a precondition for the application of ihl [see: International Armed Conflict; Non-International Armed Conflict]. In this regard, the conduct of hostilities is but an element to an international or non-international armed conflict and it is usually referred to in order to determine the applicable rules, namely the provisions governing the means and methods of warfare. 1. Means and Methods of Warfare The conduct of hostilities covers the use of both means (i.e. specific weapons) and methods (i.e. specific ways of conducting an attack) of warfare. Distinguishing between means and methods of warfare is necessary, since every weapon can be used unlawfully (method), while only certain categories of weapons (means) are inherently unlawful [Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2015), pp. 2, 4]. The term “means of warfare” refers to all actions employing a specific kind of weapon or material. While today there is a large number of specialised conventions dealing with the prohibition or regulation of specific means of warfare [see e.g. Convention on Certain Conventional Weapons (1980); AntiPersonnel Mine Ban Convention (1997); Convention on Cluster Munitions (2008)], the most important rule of ihl dealing with means of warfare is the prohibition of weapons “which are of a nature to cause superfluous injury or unnecessary suffering” [art. 35(2) api; rule 70 icrc Customary ihl Study; see: Superfluous Injury and Unnecessary Suffering]. The expression “methods of warfare” refers to any military operations falling under the broader concept of “attacks” under ihl [art. 49(1) api; see: Attacks]. In this context, it is worth noting that it is universally agreed that actions not delivering kinetic force could amount to an attack: chemical, biological, and radiological attacks are indeed seen as attacks under international law [Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, paras. 120, 124]. The question arose more recently with regard to so-called cyber-attacks. While still a controversial topic, it is also accepted that cyber operations can fall under the definition of attacks [see: ­Cyber Warfare]. 2. Historical Origin and Legal Developments The idea that the way in which hostilities are conducted has certain limits goes back to ancient times and is probably older than the more modern idea of the

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

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3. Rationale and Purpose The rationale and purpose of the legal regime governing the conduct of hostilities is that “[t]he right of the belligerent to adopt means of injuring the enemy” [art. 22 1907 Hague Regulations] and “the right of the Parties to conflict to choose methods or means of warfare” [art. 35(1) api] are not unlimited. This axiomatic statement clearly rejects the concept of total war [1987 icrc Commentary api, para. 1367]. It is enhanced by the detailed prohibitions “to cause superfluous injury or unnecessary suffering” [art. 35(2) api] and to “strike military objectives and civilians or civilian objects without distinction” [art.  ­51(4)-(5) api; see Indiscriminate Attacks]. These customary law prohibitions constitute parts of the aforementioned principle of military necessity [rules 11–12, 70 icrc Customary ihl Study]. 4. Critical Remarks The twenty-first century has brought new (and revived old) challenges to the conduct of hostilities. Since the end of World War ii, and even more so after the end of the Cold War and the 9/11 terrorist attacks, there has been a steady evolution away from classical inter-State war opposing two traditional armies on each side. Instead, we are witnessing the increase of asymmetrical warfare where a superior party, e.g. a governmental army, is fighting against an inferior party, e.g. a rebel group or a terrorist movement [see: Asymmetric Warfare]. In addition, States’ armed forces in a non-international armed conflict (e.g. in Afghanistan) are simultaneously carrying out law enforcement tasks for security purposes, e.g. counter-terrorism measures [T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities Under International Humanitarian Law – Challenges of 21st Century Warfare (2014), pp. 2–3; see: Anti-Terrorist Operations]. As a consequence, the weaker party will often try to use certain rules of the conduct of hostilities to their advantage, for example by protecting military installations with civilian human shields or targeting unlawful combatants in situations not always covered by ihl [see: Human Shields; Terrorist Organizations]. This might endanger core principles of ihl, such as distinction or proportionality [see: Distinction; Proportionality]. Furthermore, the growing numbers of civilians, either affected by modern warfare or directly participating in hostilities, complicates regular combatants’ obligation to distinguish between fighters and civilians [see: Direct ­Participation in Hostilities]. In addition, the use of modern technologies like cyber warfare, drones, or lethal autonomous weapons poses challenges to the ­conduct of hostilities and its core principles [ila Study Group, pp. 9–10, 21, 34; see: Cyber Warfare; Drones; Autonomous Weapons].

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Robert Heinsch – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), p. 1 et seq. R. Geiss, M. Siegrist, ‘Has the Armed Conflict in Afghanistan Affected the Rules on the Conduct of Hostilities?’ 93(881) irrc (2011). T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under ­International Humanitarian Law – Challenges of 21st Century Warfare (2014 and 2017). S. Oeter, ‘Means and Methods of Combat’, in D. Fleck (ed.), Handbook of International Humanitarian Law (2013).

Human Rights Courts and Bodies. Human rights courts and bodies are monitoring and accountability mechanisms set up by human rights treaties to supervise the member States’ implementation of, and compliance with, their specific treaty obligations [see: International Human Rights Law]. These monitoring mechanisms can be judicial (i.e. a court, such as the ­ECtHR, which is the main supervisory organ of echr) and/or quasi-judicial (i.e. a ­committee of independent experts with power to review individual complaints, such as the hrc, which is the monitoring organ of iccpr). The founding treaties ­define and restrict the authority, mandate, and processes of these bodies. Human rights courts and bodies were originally not regarded as institutions through which ihl issues would be addressed. The understanding was that the two branches of law applied in completely distinct situations, peacetime and wartime respectively, and that human rights monitoring bodies lacked competence and expertise to deal with ihl issues [provisions delimiting the courts and bodies’ jurisdiction: art. 19 echr; art. 63 achr; art. 45 achpr; arts. 40–41 iccpr]. Nevertheless, over time, human rights courts and bodies have been called upon to assess human rights violations committed in armed conflict contexts, within States’ territory, but also extraterritorially. As a result, while they were expected not to address any alleged ihl violations, the human rights courts and bodies do refer to or even apply ihl through various entry points. First, all the human rights treaties contain explicit references to international law, which includes ihl. These provisions may not give human rights courts and bodies authorisation to directly pronounce on ihl violations as such, but they do compel them to look into ihl when deciding whether the State has

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violated its human rights obligations. For instance, human rights instruments allow for derogations from certain treaty provisions, as long as they are consistent with States’ other obligations under international law [e.g. art. 15 echr; art. 4 iccpr; art. 27 achr]. Thus, it follows that derogations that violate ihl norms are impermissible [hrc, General Comment 29: Article 4: Derogations during a State of Emergency, para. 9]. Another example of the straightforward invocation of international law, and therefore ihl, is included in the principle of legality, which ensures that no one shall be found guilty of any act that did not constitute a criminal offence, at the time of its commission, under national or international law [e.g. art. 15 iccpr; art. 7 echr]. For instance, the ECtHR had to pronounce on whether the distinction between civilians and combatants, set out in ihl, applied already in 1944, before the adoption of the 1949 GCs, in order to be able to conclude that there was no violation of the principle of legality [Judgment, Kononov v. Latvia, ECtHR, Grand Chamber, paras. 202–203]. Second, all the human rights treaties contain broadly framed legal terms that require further interpretation. In this regard, the monitoring bodies interpret human rights provisions in light of ihl. For instance, Article 6 iccpr prohibits the arbitrary deprivation of life. The term “arbitrary” cannot be reasonably defined in a context of armed conflict without taking into account ihl norms. However, ihl provisions merely provide elements of interpretation of the respective human rights treaties in order to define and specify the content of human rights norms. Indeed, the IACtHR, while examining a series of extrajudicial executions in an armed conflict context, highlighted that the achr only gave it competence to determine whether the States’ acts are compatible with the Convention itself, not with ihl [Judgment (Preliminary Objections), Las Palmeras v. Colombia, IACtHR, paras. 32–34; Judgment, Bámaca Velásquez v. Guatemala, IACtHR, paras. 208–209]. In 2014, an ECtHR judgement went a step further. Despite the exhaustive list of grounds for detention under Article 5 echr on the right to liberty and security, the Court applied the standards on detention and internment under the 1949 GCs to ultimately conclude that there was no violation of Article 5 echr [Judgment, Hassan v. UK, ECtHR, Grand Chamber, paras. 109–110; see: Deprivation of Liberty]. Lastly, showing a more inclusive approach, some of the most recent human rights treaties make explicit references to the ihl obligations of State parties and, therefore, expressly authorise the relevant monitoring bodies to evaluate ihl issues [e.g. art. 38 Convention on the Rights of the Child (crc); arts. 1–4 Optional Protocol to the crc on the Involvement of Children in Armed

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Conflict; art. 11 Protocol to the achpr on the Rights of Women in Africa; art. 11 UN Convention on the Rights of Persons with Disabilities]. In general, human rights courts and bodies have been cautious in referring to or applying ihl while assessing human rights violations in an armed conflict, unless it has been considered necessary for reaching a conclusion regarding violations of human rights norms. Occasional references to violations of ihl obligations that have some equivalent obligation in ihrl should be understood as observations aiming at reinforcing the significance of the respective human rights violation, rather than constituting a binding determination of ihl violations [cescr, General Comment 15: The Right to Water (2003); Decision, Democratic Republic of Congo v. Burundi, Rwanda and Uganda, ­ACmHPR, para. 79]. Interestingly, despite the lack of direct mandate, the hrc, and other UN human rights treaty bodies, did not hesitate to make direct references to States’ obligations under the 1949 GCs in their concluding observations following each periodic State reporting cycle [e.g. hrc, Concluding Observations on Bosnia and Herzegovina, UN Doc. CCPR/C/79/Add.14, para. 7]. Nevertheless, they do not follow the same practice in their views on individual complaints. The reason for this could be that the treaty bodies feel more legally constrained compared to the reporting procedures, which have a more quasi-political character. Looking to the future, the lack of ihl monitoring mechanisms and the fact that human rights courts and bodies are the only fora where there is a possibility for individuals to lodge direct complaints suggest that there will be an increasing number of cases where human rights courts and bodies will be called upon to examine situations where both bodies of law apply. Gradually, as the relationship between the two branches evolves and as the trend of inclusion of ihl references in human rights instruments continues, human rights courts and bodies may revise their cautious approach and directly address ihl issues [W. Kälin, ‘Universal Human Rights Bodies and International Humanitarian Law’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013), p. 441]. Commentators have underlined both the positive side of such a development, such as the complementary implementation of the two bodies of law and reinforcement of ihl implementation, as well as the negative side, such as the lack of experience and expertise of human rights courts and bodies on the topic of ihl or a reorientation away from human rights issues [H. Krieger (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (2015), p. 263].

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Ilia Siatitsa – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

C. Byron, ‘A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies’, 47 Va. J. Int’l L. (2006–2007). W. Kälin, ‘Universal Human Rights Bodies and International Humanitarian Law’, in R. Kolb, G. Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013). D. Steiger, ‘Enforcing International Humanitarian Law through Human Rights Bodies’ in H. Krieger (ed.), Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region (2015).

Human Shields. While formulated with slight differences in several treaty provisions, such as Article 23 gciii, Article 28 gciv, Article 51(7) api, and Article 8(2)(b)(xxiii) icc Statute, the use of human shields is generally described as using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations [rule 97 icrc Customary ihl Study; Judgment, Karadžić, icty, Trial Chamber, para. 525; see: Protected Persons]. The use of human shields distorts the delicate balance between military necessity and humanitarian considerations in the law, by taking advantage of its humanitarian protections for military ends [M.N. Schmitt, ‘Human Shields in International Humanitarian Law’, 47(292) Colum. J. Transnat’l L. (2008–2009), p. 301; see: Military Necessity; Humanity]. As ihl prohibits attacks against civilians and other protected persons [see: Attacks against Civilians and Persons Hors de Combat], it naturally disallows abuse of this prohibition too [M. Pedrazzi, ‘Using Human Shields as a War Crime’, in F. Pocar et al. (eds.), War Crimes and the Conduct of Hostilities (2013), p. 100]. On the basis of international instruments, as well as State practice, including that of States not party to api, apii, or the icc Statute, the icrc has reached the conclusion that the prohibition of using human shields is a norm of customary international law applicable in both international and non-international armed conflict [rule 97 icrc Customary ihl Study]. This conclusion has gained wide ­doctrinal support [Schmitt, pp. 306–307; Pedrazzi, p. 105; Y. Dinstein, ‘Issues Relating to the Use of Civilian Human Shields’, 44(273) Israel Yearbook on Human Rights (2014), p. 291]. The use of human shields is prohibited regardless of whether it is carried out by a defending party or by an attacking party [art. 51(7) api; Pedrazzi, p. 101].

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The prohibition of the use of human shields is not dependent on actual harm or attack, as its purpose is to protect civilians and other protected persons from being exposed to the risk of harm and not only to the harm itself [Judgment, Blaškić, icty, Appeals Chamber, para. 654]. In order for a conduct to qualify as the use of human shields, those placing a military objective and protected persons together must possess the specific intent to shield the military objective from attack or to shield, favour, or impede military operations [art. 8(2)(b)(xxiii)-2 icc Elements of Crimes; Karadžić, para. 526; rule 97 icrc Customary ihl Study]. Therefore, the coincidental presence of civilians during a military force’s retreat or the co-location of civilians and a military force in the course of the lawful evacuation of the former by the latter does not qualify as the use of human shields, unless the military force intends to take advantage of the civilians’ presence or movement to shield themselves from the enemy’s military attack [Schmitt, pp. 302–303]. 1. Prohibition of the Use of Human Shields in International Armed Conflicts In the context of international armed conflicts, several treaty provisions ­explicitly outlaw the use of human shields. For instance, Article 28 gciv and Article 51(7) api prohibit the use of civilians, whereas Article 23 gciii prohibits the use of prisoners of war as human shields in international armed conflicts [see: Civilians; Prisoners of War]. Articles 12(4) and 28(1) api prohibit the similar use of medical units and medical aircraft [also art. 19 gci; see: Medical Units and Establishments; Medical Aircrafts]. The rationale of the prohibition of using human shields, as described above, is particularly reflected in Article 51(7) api, which prohibits the use of civilians and the civilian population as human shields. This provision is a corollary to Article 48 api, which articulates the principle of distinction, as well as to Article 51(1) and (2) api, which provides that “the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations” and that they “shall not be the object of attack” [Schmitt, p. 302; see: Distinction]. Article 58 api further provides a complementary rule for the prohibition of using civilian shields, in particular by obliging parties to a conflict to “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives” and to “avoid locating military objectives within or near densely populated areas” [1987 icrc Commentary api, para. 2255; see: Precautions, Passive]. According to Article 51(8) api, the use of human shields shall not release the opposing party from its obligations towards civilians. In particular, this includes the duty, required by Article 57 api, to take all feasible ­precautionary

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measures when launching an attack [1987 icrc Commentary api, paras. 1989–1991; see: Precautions, Active]. This duty also applies to cases where the wounded and sick and/or the medical unit taking care of them are used as human shields [1987 icrc Commentary api, paras. 539–540]. Article 51(8) api also signifies that the principle of proportionality remains applicable, despite a violation by the other side by using human shields [art. 51(5)(b) api; Dinstein, pp. 286–287; see: Proportionality]. 2. Prohibition of the Use of Human Shields in Non-international Armed Conflicts There exists no specific treaty provision outlawing the use of human shields in non-international armed conflicts. Nonetheless, certain provisions applicable in non-international armed conflicts can be considered to encompass the prohibition against the use of human shields [1987 icrc Commentary api, para. 4772; rule 97 icrc Customary ihl Study]. Such provisions include Article 13 apii, which stipulates the principle of the protection of civilians and the civilian population, recognised by customary international law [1987 icrc Commentary api, para. 4761], as well as Article 5(1)(b) and (2)(c) apii concerning the protection of detainees and internees against the dangers of the armed conflict [Pedrazzi, p. 105]. 3. Further Developments in International Criminal Law Article 8(2)(b)(xxiii) icc Statute and Article 6.1(b)(xxiii) UNTAET Regulation No. 2000/15 criminalise the use of human shields as a war crime in international armed conflicts [see: Serious Violations of the Laws and Customs of War; War Crimes]. However, there is no specific treaty provision that criminalises the use of human shields in non-international armed conflicts. Thus, in combination with varying State practice, whether customary international law criminalises the use of human shields as a stand-alone crime, especially in non-international armed conflicts, is still debatable [Pedrazzi, p. 116]. Nonetheless, when specific legal conditions are met, the use of human shields can amount to the taking of hostages, cruel treatment, or more generally inhuman treatment, all of which are prohibited by Common Article 3 GCs and Article 4 apii, as well as by customary ihl both in international and noninternational armed conflicts [rules 87, 90, 96 icrc Customary ihl Study; see: Hostages; Inhuman Treatment]. The icty has held that the use of prisoners of war and civilian detainees as human shields may be punishable, where the required elements of crimes are met, as: (i) inhuman treatment (as a grave breach of the GCs in international armed conflicts); (ii) cruel treatment (as a violation of the laws or customs of war in non-international armed c­ onflicts);

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and (iii) persecution or other inhumane acts (as crimes against humanity) [Blaškić, paras. 154–155, 160, 653, 669–671; Karadžić, para. 523; Judgment, Naletilić and Martinović, icty, Trial Chamber, paras. 245, 262–263, 289–290, 298, 300, 303, 334; see also: Judgment, Naletilić and Martinović, icty, Appeals Chamber, ­paras. 420, 465 (affirming Martinović’s convictions); Judgment, Prlić et al., icty, Trial Chamber, Vol. 1, paras. 115, 150; Vol. 3, paras. 1262–1264, ­1356–1358, 1459–1461, 1714–1716; see also: Judgment, Prlić et al., icty, Appeals Chamber, paras. 1344–1351, 2311–2321, 3366 (affirming all six defendants’ relevant convictions)]. 4. Controversial Issues One of the most debated questions is whether and how to distinguish voluntary human shields (namely, those who willingly serve as shields) from involuntary human shields, and as part of this, whether voluntary civilian human shields should be regarded as civilians directly taking part in hostilities, thereby losing the protections from attack afforded to civilians as provided for in Article 51(3) api [see: Direct Participation in Hostilities]. Some commentators answer this question in the affirmative [Schmitt, pp. 318–319; Dinstein, pp. 282–284], while others argue that voluntary civilian human shields cannot be equated to civilians directly participating in hostilities and therefore retain the full protection afforded to civilians [Pedrazzi, p. 104]. The icrc has expressed the view that the answer depends on whether voluntary human shields directly cause the threshold of harm to the enemy required to be qualified as direct participation in hostilities. This is to be assessed in light of the nature of the military operations in question [N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), pp. 56–57]. The answers to these questions further affect the analyses of related issues, such as whether the opposing party encountering voluntary human shields bears obligations to ensure proportionality and to take precautions in the attack, which are part of the protection afforded to civilians taking no direct part in hostilities [arts. 51(5)(b), 51(8), 57 api]. It is less controversial that these obligations remain in place for opposing parties that face involuntary human shields [Schmitt, pp. 327–328; Dinstein, pp. 285–287]. In addition, where the opposing party is deemed to bear such obligations (either vis-à-vis both involuntary and voluntary human shields or vis-à-vis involuntary human shields only), a vigorously debated issue is whether the application of the proportionality test should be relaxed owing to the exceptional circumstances of human shields [Schmitt, pp. 328–332; Dinstein, pp. 285–289; W.H. Boothby, The Law of Targeting (2012), pp. 137, 139].

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In order to find logically coherent answers, it is essential to first consider the underlying issues of the direct participation rule and the proportionality test, as well as to identify concrete criteria for the implementation of these principles, which have also been subject to intense controversy. Saeko Kawashima – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W.H. Boothby, The Law of Targeting (2012), pp. 136–139. Y. Dinstein, ‘Issues Relating to the Use of Civilian ‘Human Shields’, 44(273) Israel Yearbook on Human Rights (2014). M. Pedrazzi, ‘Using Human Shields as a War Crime’, in F. Pocar, M. Pedrazzi, M. Frulli (eds.), War Crimes and the Conduct of Hostilities (2013). M.N. Schmitt, ‘Human Shields in International Humanitarian Law’, 47(292) Colum. J. Transnat’l L. (2008–2009).

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

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

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In order to guard against such dangers in the absence of an agreement between the parties, a robust military presence (such as a peacekeeping force mandated by the unsc) will be required to ensure the protection of those travelling through it. However, the presence of military forces to protect the corridor can also draw attacks from enemy parties, exposing civilians and other protected persons to hostilities and thereby undermining the very purpose of the corridor. In addition to presenting such dangers, the militarization of humanitarian mechanisms can jeopardize on-going negotiations for the sustained delivery of humanitarian assistance. Nathalie Weizmann – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations Bibliography

irin, ‘Why Humanitarians Wary of “Humanitarian Corridors”’ (2012). K. Shaheen, ‘Syria: UN Considers Role in Russia’s “Deeply Flawed” Humanitarian Corridors Plan’, The Guardian (2016).

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

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consignments or favouring certain persons on any grounds other than need (such as race, religion or political opinion) [art. 70 api; art. 18 apii]. However, this does not preclude specific actions for the benefit of certain vulnerable groups, such as children, expectant or nursing mothers, or persons with disabilities, or for the benefit of only one party to the conflict [see: Children; Women; Disability]. Moreover, ihl explicitly requires that priority be given to certain categories of vulnerable persons such as children, expectant mothers, maternity cases and nursing mothers [art. 70 api]. 2. Consent In situations of international armed conflict other than occupation, protected persons are entitled to receive individual or collective relief that is sent to them [art. 38 gciv; see: Protected Persons]. Whenever offers of humanitarian relief are made, consent is required from the State party to the conflict in whose territory the humanitarian relief is carried out, as well as from other States party to the conflict if the relief must transit through territory under their effective control, and from other States in whose territory the relief is initiated or must transit [art. 70 api]. In situations of occupation, if the civilian population, in whole or in part, is not adequately provided with supplies essential to its survival, the occupying power has an unconditional obligation to consent to impartial humanitarian relief operations [art. 59 gciv; see: Occupation]. The same absolute obligation binds States in whose territory the relief operation is initiated or passes through [art. 59 gciv]. With respect to individual relief consignments, protected persons in occupied territories shall be permitted to receive parcels addressed to them, subject to imperative reasons of security [art. 62 gciv]. When offers of humanitarian relief are made in non-international armed conflict, apii explicitly requires the consent of the State party “concerned” [art. 18 apii]. As for Common Article 3 GCs, it is silent as to whether consent is required in all cases from the State party to the conflict in whose territory the humanitarian relief is carried out, or only when the State is exercising effective control over the area in which the relief is intended. Some experts consider that Common Article 3 GCs allows relief operations as long as the State or nonState party receiving the offer consents to it and the relief does not have to cross the territory controlled by the opposing side. Others believe that such an approach could entail an important infringement on the territorial State’s sovereignty if only the consent of a non-State party were obtained [D. Akande, E.-C. Gillard, Cross-Border Relief Operations – A Legal Perspective (2014), pp. 12–19]. In any event, as a matter of practice in order to ensure a safe and unimpeded relief operation, the consent of non-State armed groups will be required when

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the humanitarian relief is intended for or passing through territory under their effective control. In situations of non-international armed conflict, ihl does not explicitly address the consent of States in whose territory the relief is initiated or must transit. In situations of international armed conflict other than occupation, and in non-international armed conflict, when civilians are inadequately provided with essential supplies and the relief operations being offered are humanitarian, impartial, and conducted without adverse distinction, consent to these operations may not be arbitrarily withheld. In other words, States do not have absolute and unlimited discretion to refuse relief actions. It is worth noting that, in the Syrian context, the unsc has overridden the requirement of consent in its decision to authorize UN humanitarian agencies and their implementing partners to use routes across conflict lines and certain border crossings in order to ensure that humanitarian assistance reaches people in need throughout Syria [unsc Resolution 2165 (2014)]. 3. Obligation to Allow and Facilitate Passage In any situation of armed conflict, once consent to an offer of humanitarian relief has been granted, the parties must allow and facilitate rapid and unimpeded passage – over land, water, or by air – of humanitarian relief consignments, equipment, and personnel. The parties must also ensure the freedom of movement of humanitarian personnel that is essential to the exercise of their functions [art. 59 gciv; arts. 70–71 api; rules 55–56 icrc Customary ihl Study]. Only in case of imperative military necessity may their activities or movements be temporarily restricted [art. 71 api; rule 56 icrc Customary ihl Study; see: Military Necessity]. In international armed conflict, including situations of occupation, this obligation to allow and facilitate also applies to States in whose territory relief operations are initiated or transit [art. 70 api]. In non-international armed conflict, ihl does not explicitly address the role of States in whose territory the relief is initiated or transits. Refusing access of humanitarian relief intended for civilians in need, including by deliberately impeding humanitarian relief or restricting the freedom of movement of humanitarian relief personnel, may constitute a violation of the prohibition of starvation [rule 53 icrc Customary ihl Study; art. 8(2)(b)(xxv) icc Statute; see: Starvation]. Measures to allow and facilitate passage can include waiving or simplifying and expediting entry procedures for humanitarian personnel; waiving, reducing or expediting customs inspection requirements; issuing permits for the passage of humanitarian relief, equipment, and personnel; ensuring adequate staffing and schedules in order to meet formalities efficiently and

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e­ xpeditiously; and allowing telecommunications equipment to be imported for its exclusive use in humanitarian relief operations, except as required for imperative reasons of security [D. Akande, E.-C. Gillard, Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (2016), para. 64]. Except in cases of urgent necessity in the interest of the civilian population concerned (such as reasons of security, medical needs in a certain area, or transportation difficulties), relief supplies must not be delayed or diverted from their intended destination [art. 60 gciv; 70(3)(c) api]. 4. Technical Arrangements The parties to an armed conflict and States in whose territory relief operations are initiated or transit have the right to prescribe technical arrangements for the passage of humanitarian relief. The conditions for the passage of consignments set out in Article 23(2) gciv have been rendered obsolete, since Article 70 api, which is considered to represent customary ihl, limits the possibility to evade obligations on subjective and unverifiable grounds [Akande, Gillard (2016), paras. 88, 92]. Technical arrangements must be applied in good faith, and their nature, extent, and impact must not prevent the rapid delivery of humanitarian relief in a principled manner. Their imposition or effect must not be arbitrary [Akande, Gillard (2016), paras. 56, 71]. Technical arrangements can require the search of consignments to verify that relief consignments are exclusively humanitarian (e.g. not containing equipment that could be used for military purposes), the use of prescribed routes at specific times so that relief convoys do not interfere with and are not endangered by military operations, or measures to ensure that medical supplies and equipment comply with health and safety standards [art. 59 gciv; art. 70 api]. The parties to an armed conflict may make passage of humanitarian relief consignments conditional on their distribution under the local supervision of an impartial organisation or on other measures, to ensure that the supplies will reach their intended beneficiaries [art. 70(3)(b) api]. 5. Obligation to Respect and Protect Parties to an armed conflict must respect and protect humanitarian relief personnel in the course of military operations [art. 71 api; rule 31 icrc Customary ihl Study]. It is prohibited to direct attacks against them. Practice indicates that it is also prohibited to harass, intimidate, or arbitrarily detain them [rule 31 icrc Customary ihl Study]. The parties must also respect and protect objects that are used for humanitarian relief operations, such as supplies, installations, material, units or vehicles. Their destruction, misappropriation and looting are also prohibited [art. 70 api; rule 32 icrc Customary ihl Study].

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Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance mission is considered a war crime in both international and non-international armed conflicts, as long as they are entitled to the protection given to civilians or civilian objects under ihl [art. 8(2)(b)(iii), 8(2)(e)(iii) icc Statute]. Nathalie Weizmann – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations Bibliography

D. Akande, E.-C. Gillard, Promoting Compliance with the Rules Regulating Humanitarian Relief Operations in Armed Conflict: Some Challenges (2017). D. Akande, E.-C. Gillard, Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (2016). D. Akande, E.-C. Gillard, Cross-Border Relief Operations – A Legal Perspective (2014). F. Schwendimann, The Legal Framework of Humanitarian Access in Armed Conflict (2011).

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

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ciple of distinction between combatants and civilians [see: Distinction], the rules on the conduct of hostilities [see: Hostilities, Conduct of], and the rules on the protection of vulnerable groups and persons [see e.g. Protected Persons; Women; Children; Disability]. Although humanity may not always be an overt part of these rules, in the sense that conduct is not uniformly conditioned on whether it would be humane, the assurance of humane treatment is a significant part of their underlying value. Likewise, considerations of humanity may also play a residual role in resolving those limited areas where ihl is genuinely unclear. Thus, the celebrated statement known as the Martens Clause – which has subsequently been repeated and reinforced in the 1949 GCs and 1977 APs, and in international case law – calls for individuals to be protected based on “the laws of humanity, and the requirements of the public conscience” [see: Martens Clause]. But this approach must, on the other hand, be treated with a degree of caution. As already stated, it does not mean that humanity trumps positive law. In particular, there seems to be little support in State practice for the view that the principle of humanity can be called upon to limit conduct which is permitted by positive rules of ihl. For example, if rules of ihl permit an attack to be made, and the attack does not employ weaponry which is prohibited by positive rules of ihl (see below), it remains controversial, at the least, to suggest that the attacker is nonetheless obliged to prioritise the weapon’s effects on the target (as opposed to other valid military considerations) in their choice of (lawful) weapon. Consistent with the significant influence that the principle of humanity has played “behind the scenes” in the general elucidation of ihl, however, it is given clear and prominent effect in certain positive rules. Some of these rules identify circumstances in which considerations of military necessity are more or less absent while, conversely, considerations of humanity are imperative, such as the rules protecting vulnerable persons or prohibiting conduct which is entirely irrelevant to the conduct of hostilities. Other rules, by contrast, strike a more visible balance between these concerns, such as some of the rules concerning the conduct of hostilities. In the long term, it is likely that legal ­developments resulting from evolving conceptions of the principle of humanity will focus in this latter area. Yet, it is noteworthy that recent clarifications have, in fact, come from the opposite direction, in further delimiting conduct which is per se regarded as inhumane and devoid of military necessity. One obvious consequence of the principle of humanity, therefore, is the absolute prohibition of inhuman treatment of persons once they are in the ­power of a party to the conflict [see: Inhuman Treatment]. Violating these protections, which include express prohibitions of killing, torture, ­hostage-taking, arbitrary punishment, may be a war crime [e.g. art. 8(2)(a)(i)-(viii), 8(2)(c)

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(i)-(iv) icc Statute; see: War Crimes; Grave Breaches; Serious Violations of the Laws and Customs of War]. Furthermore, certain conduct is so manifestly inconsistent with the principle of humanity that it is criminalised even when both perpetrator and victim are affiliated to the same party to the armed conflict [arts. 12–13 gci; arts. 12–13 gcii; 2016 icrc Commentary gci, pp. 191–192]. This of course does not mean that soldiers may not be intentionally exposed to danger or risk of suffering from the adverse party, for that is their essential function. But it does underscore that they may not be treated inhumanely by their comrades, when they are wounded, sick, or shipwrecked in international armed conflict [see: Wounded and Sick; Shipwrecked], or in the sense that they are subjected to conduct which is prohibited per se due to its inhumane nature. This includes, but is not limited to, the conduct prohibited under Common Article 3 GCs [see: Common Article 3]. Thus, along similar lines, the icc has confirmed that the protection against rape and other grave sexual violence committed in the context of armed conflict is likewise absolute [­Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9”, ­Ntaganda, icc, Appeals Chamber, paras. 51, 63–65, 67–68; see: Child Soldiers]. Certain war crimes also expressly give effect to the principle of humanity in the conduct of hostilities. This is most apparent in the absolute prohibition of certain means or methods of war, widely accepted both in customary law and relevant treaties [see e.g. Geneva Gas Protocol (1925); Dum-Dum (Expanding) Bullets]. Yet consensus on such questions is particularly hard-won and debate continues to be lively in this area, even once prohibitive treaties (for example, regarding the use of anti-personnel mines and certain kinds of cluster munitions) have been ratified by a significant number of States. What is inhumane in the conduct of hostilities in armed conflict, which itself is proverbially “hell”, thus remains a markedly vexed question. It may be indicative in this context that icc States parties have thus far made no move to designate certain weapons expressly as being “of a nature to cause superfluous or unnecessary suffering” [art. 8(2)(b)(xx) icc Statute; see: Superfluous Injury and Unnecessary Suffering]. Matthew Cross – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ 11(1) ejil (2000). R. Coupland, ‘Humanity: What is it and How Does it Influence International Law?’ 83(844) irrc (2001).

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K. Larsen et al. (eds.), Searching for a ‘Principle of Humanity’ in International ­Humanitarian Law (2013). T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, 94(1) ajil (2000a). T. Meron, ‘The Humanization of Humanitarian Law’, 94(2) ajil (2000b).

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

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a­ ssessment of the particular circumstances of the case and the characteristics of the victim. Sunkyung Kim – the views expressed are those of the author alone and do not necessarily reflect the views of the Ninth Circuit Court of Appeals Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005), pp. 315–319.

Hybrid or Internationalised Tribunals. The expressions hybrid, mixed, or internationalised criminal tribunals refer to tribunals which have been created to address violations of international criminal law, but which borrow elements from both national and international legal systems. These tribunals are often created by way of treaty or agreement, and are mostly locally based courts, which employ both national and international judges and staff. Examples of hybrid tribunals include the scsl, the eccc, the Special Panels for Serious Crimes in East Timor (East Timor Panels), the Regulation 64 Panels in Kosovo, the War Crimes Chamber in the State Court of Bosnia and Herzegovina (wcc), and the stl. More recent examples are represented by the Extraordinary African Chambers and the Kosovo Specialist Chambers. Each of these judicial institutions has unique features, which relate to the manner in which they were created, scope of jurisdiction, composition of judges and staff, physical location, applicable law and the relationship with the relevant domestic legal system. The scsl and eccc, as entities, were created by way of agreement between the respective national governments and the UN. However, strictly speaking, the eccc is considered to be a national court, which is assisted by the UN. While a similar agreement was signed between the government of Lebanon and the UN, this was never ratified by the Lebanese Parliament and thus the stl was established following unsc Resolution 1757 (2007). The wcc was established following an agreement between the Bosnian government and the Office of the High Representative. The East Timor Panels and the Regulation 64 Panels in Kosovo were established by the UN Transitional Authority in East Timor and the UN Interim Administration Mission in Kosovo (unmik) respectively. The Extraordinary African Chambers were established by way of agreement between the African Union and Senegal to try crimes committed in Chad during Hissène Habré’s regime and, similarly to the eccc, is meant to be a national jurisdiction with an international assistance component. The Kosovo

Hybrid or Internationalised Tribunals

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Specialist Chambers were created with the support of, and following an agreement with, the European Union. These hybrid courts were often created to have jurisdiction over war crimes in situations where the affected States were in the midst of or still recovering from armed conflict and needed international pressure, encouragement, assistance and/or support to run independent and fair trials for alleged ­atrocities. Having regard to the need to preserve impartiality, hybrid tribunals employed international judges and staff with the goal of applying international best practices with respect to fair trial rights [see: Fair Trial]. At the same time, the hybrid structure, as opposed to the purely international criminal tribunals, ­allows for varying degrees of national ownership or involvement in the judicial process. This is achieved through locating the court in or closer to the territory where the alleged crimes were committed, the employment of national staff and judges, and the application of domestic substantive and/or procedural laws as a complement to international law. These hybrid courts can be created as independent bodies or form part of the domestic legal structure. Resort to hybrid tribunals developed on the basis that there was no single approach to respond to mass atrocities that occur in different political and legal circumstances. The future of such hybrid tribunals is uncertain, but there could still be a role for new hybrid tribunals to fill gaps left by the icc or other accountability mechanisms. In this regard, there have recently been discussions about the possibility of creating hybrid judicial structures to address the armed conflict which occurred in Sri Lanka, while a special court for the Central African Republic as well as the International, Independent and Impartial Mechanism for the Syrian Arab Republic are already in the early stage of operations. These hybrid tribunals have faced numerous political and financial challenges to their creation, jurisdiction, and functioning but have still contributed to the body of law which international scholars and practitioners can draw upon in relation to war crimes and the adjudication of criminal responsibility for such crimes. For example, the jurisprudence of the scsl has developed or provided judicial guidance on issues including the use of child soldiers, forced marriage, attacks against UN peace-keepers, sovereign immunity, and protection of witnesses. The eccc has developed the law on the role and participation of civil parties in International Criminal Trials, bridged a gap between World War ii jurisprudence and the jurisprudence of the ad-hoc tribunals, and developed a different view on the law relating to liability for joint criminal enterprise. While there are justifiable criticisms about the selectivity and the political challenges faced by many of the hybrid judicial structures, ultimately

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they have contributed to determining the truth and criminal responsibility for mass crimes in circumstances where they otherwise may never have been adjudicated. Harshan Athureliya – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

A. Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’, in C.P.R. Romano, A. Nollkaemper, J.K. Kleffner (eds.), Internationalized Criminal Courts (2004). L. Raub, Positioning Hybrid Tribunals in International Criminal Justice, 41 N.Y.U. J Int’l L. & Pol. (2008–2009). S. Williams, Hybrid and Internationalised Criminal Tribunals (2012).

Implementation. Measures of implementation aim at ensuring that rules of ihl are fully respected. In a broad sense, they strive to make rules of ihl work. In some references and contexts, the notion of implementation extends to and comprises enforcement, though usually both terms are distinct. A non-exhaustive list of essential implementation activities comprises the translation of ihl treaties and customary ihl rules [see: Translation]; dissemination of ihl [see: Dissemination]; identification, marking, and protecting specially protected persons, objects, and localities [see: Precautions, Passive]; prevention of misuse and improper use of protected emblems, in particular the red cross, red crescent and red crystal [see: Emblem]; the determination and training of qualified personnel being endowed with certain protective tasks under ihl [see: Qualified Persons]; and the prosecution of violations of ihl [see: Penal Sanctions and Legislation; Penal Prosecution]. The majority of implementation measures are taken on the domestic level, starting with an act of transformation of the rule of ihl into a rule of national law. Domestic implementation provides the special and specific legal infrastructure for rules of ihl to be applied and employed by different actors. Indeed, these actors may need to contribute to the application of a rule in a form and with the instruments they are used to in their daily routines. Only relatively few rules of ihl are self-executing and do not necessarily need an implementing legislation in order to be meaningful to and/or applicable by the relevant actors. An example of such a self-executing norm is the prohibition to conduct indiscriminate attacks [art. 51(4) api] or to make the civilian population as such, as well as individual civilians, the object of

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attack [art. 51(2) api; rule 1 icrc Customary ihl Study; see: Attacks against Civilians and Persons Hors de Combat]. Even in cases where the actors involved are not aware of the exact legal aspects and dimensions of the principle of distinction and the dimensions of attacks, it can reasonably be expected that persons taking a direct part in hostilities will know what type of behaviour is expected by the rule – assuming that they know the rule. Conversely, the closely related prohibition to spread terror among the civilian population according to Article 51(2) api is considerably less self-executing [see also: rule 2 icrc Customary ihl ­Study; see: Terrorism (ihl)]. At least, the notion of “spreading  terror” in the context of armed conflict requires an explanation of the legal dimensions of “terror” prohibited under ihl and, in particular, of examples of “­prohibited acts of terror” in order to increase the probability that parties to the conflict, willing to apply ihl, are actually in a position to do so. Implementation is particularly important for ihl to be applied by members of the armed forces. In order to ensure that humanitarian norms are not only known to members of the armed forces via dissemination, but also understood and operationalized, States usually break down ihl treaties and customary ihl into military manuals, which are applicable on a general basis and to all members of its armed forces [see: Military Manuals]. Military manuals very often combine international and national legal provisions and translate them into operationally relevant norms. So-called rules of engagement constitute directives delineating the circumstances and limitations of the behaviour of members of the armed forces in the context of specific operations [see: Rules of Engagement]. On a general level, certain areas of ihl specifically necessitate legal infrastructure. For instance, sanctions for violations of ihl require enacting respective criminal and disciplinary law [see: Discipline]. In addition, a specific status conferred on persons (combatants, medical and religious personnel, civil defence personnel), objects (civilian hospitals, medical installations, civil defence installations) or institutions (National Societies of the Red Cross and Red Crescent, other voluntary aid societies in terms of Article 26 gci, special organizations of a non-military character as mentioned in Article 63(2) gciv, the National Information Bureau) under ihl needs to be specified under domestic law. For ihl to be actually applied, it is paramount that not only parties to the conflict know that a specific object has a certain status (e.g. a civilian hospital), but also that domestic public authorities are aware of this fact and have implemented relevant domestic administrative and private law to this effect. Likewise, it is essential that administrative, medical, and support personnel know about the required behaviour arising from the characteristics of such a status.

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An even more detailed implementation of the immunity of civilian hospitals, for example, elaborates on content, form, and regularity of drills and exercises. Measures of implementation may be enacted both in times of armed conflict and in times of peace. The more implementation measures are taken ­already before the outbreak of hostilities, the more probable it is that rules of ihl become effective and are observed. At the same time, in practice, it is often difficult for potential parties to an armed conflict and individuals involved to conceptualize the practical ramifications of legal protection in armed conflict and to accept the ensuing necessities in terms of administrative, human resources, and financial investment. This holds in particular true in contexts where the likelihood of an international or non-international armed conflict is perceived as limited. Probably the most difficult ihl treaty to implement effectively is the 1954 Convention for the Protection of Cultural Property [see: Hague Convention for the Protection of Cultural Property (1954) and its Protocols]. The vast majority of its operative provisions are applicable in peace-time and require implementation already in time of peace. The mere identification and marking of cultural property with a distinctive emblem, in order to facilitate its recognition in the conduct of hostilities, constitutes a considerable effort in terms of the administrative, human resources, and financial burden, which States very often renounce to undertake. Implementation is the critical precondition for ihl norms to effectively regulate the behaviour of parties to armed conflicts. It is also a precondition for the enforcement of ihl, as no regulation may be enforced which is not legally binding on the actor expected to apply it and which is not made applicable in the actor’s actual behaviour. Heike Spieker – the views expressed are those of the author alone and do not necessarily reflect the views of the German Red Cross or any other institution the author is affiliated with Bibliography

V. Bernard, M.C. Nikolova, ‘Generating Respect for the Law: The Need for Persistence and Imagination’, in Éditions Yvon Blais (ed.), Hommage à Jean Pictet par le ­Concours de Droit International Humanitaire Jean Pictet (2016). M. Sassòli, ‘The Implementation of International Humanitarian Law: Current and ­Inherent Challenges’, 10 yihl (2007).

Improvised Explosive Devices. Improvised explosive devices (ieds) have ­garnered much attention in recent years, primarily due to the use of such weapons by non-State armed groups and the heavy toll they have inflicted on

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civilians and civilian populations. ieds are not specifically defined in ihl, but they are covered by the original and amended versions of Protocol ii ccw [see: Convention on Certain Conventional Weapons (1980); Landmines; BoobyTraps]. Although ieds are not defined in these instruments, the concept is enveloped into the definition of an “other device” and presented as an example of such devices in amended Protocol ii ccw. Amended Protocol ii ccw defines “other devices” as follows: “[o]ther devices’ means manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are activated manually, by remote control or automatically after a lapse of time” [art. 2(5) amended Protocol ii ccw]. Since 2009, expert work in the ccw has devoted attention to the problems of ieds, in military and humanitarian terms, and adopted a working definition to facilitate their work and discussions. Although not formally negotiated and adopted by States parties, the definition guiding the work of the expert group is as follows: “[a]n ied is an explosive device placed or fabricated in an improvised manner and incorporating destructive, lethal, noxious, pyrotechnic, or incendiary chemicals. An ied is designed to destroy, incapacitate, harass, or distract. It may incorporate military stores or be devised wholly from non-­ military components” [Group of Experts of the States Parties to Amended Protocol ii ccw, Discussion Paper 1 (2009)]. Although there are variations, this definition is similar to that used by nato and the UN [nato, nato Glossary of Terms and Definitions: Listing Terms of Military Significance and Their Definitions for Use in nato, AAP-06 (2013), p. 2-I-2; unsg, Report: Countering the Threat Posed by Improvised Explosive Devices (2016), p. 7]. One important point to highlight in surveying these definitions is that, under amended Protocol ii ccw, a victim-activated munition is not considered to be an “other device”. Rather, such weapons are classified as mines and potentially booby traps covered by the relevant provisions of the Protocol [see: Landmines; Booby-Traps]. This approach is consistent with that taken by the Convention on the Prohibition of Anti-Personnel Mines [see: Anti-Personnel Mine Ban Convention (1997)]. Thus, in ihl, a victim-activated improvised ­explosive device is more properly classified as an improvised mine. Louis G. Maresca – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

J. Revill, Improvised Explosive Devices: The Paradigmatic Weapon of New Wars (2016). Small Arms Survey, Infernal Machines: Improvised Explosive Devices (2013). A. Wilkinson, J. Bevan, I. Biddle, ‘Improvised Explosive Devices (ieds): An Introduction’, in J. Bevan (ed.), Conventional Ammunition in Surplus (2008).

406

Incendiary Weapons

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

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objective”, and to avoiding or, at least, minimizing incidental civilian harm [art. 2(3) Protocol iii ccw]. Opinions on the legality of incendiary weapons diverge and it is unclear to what extent the Protocol’s provisions have become part of customary ihl. In the determination of the icrc, State practice establishes as a norm of customary international law applicable in both international and non-international armed conflicts that “if incendiary weapons are used, particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects” [rule 84 icrc Customary ihl Study; see: Precautions, Active]. Furthermore, due to their propensity to cause injury and suffering beyond what is necessary to place an enemy combatant hors de combat, the icrc considers that, as a norm of customary international law applicable in both international and non-international armed conflicts, “the anti-personnel use of incendiary weapons is prohibited, unless it is not feasible to use a less harmful weapon to render a person hors de combat” [rule 85 icrc Customary ihl Study]. In spite of customary and treaty-based restrictions, incendiary weapons continue to cause grave harm. To increase the humanitarian benefit of Protocol iii ccw, it has been suggested to revise the Protocol so as to cover weapons and munitions which, albeit not “primarily designed” to do so, cause harm through heat or fire in practice [art. 1(1)(b) Protocol iii ccw], such as certain smoke or illumination projectiles. In this regard, Human Rights Watch and the Harvard Law School’s International Human Rights Clinic propose that the prohibition on the use of incendiary weapons for attacks on targets within a concentration of civilians should apply regardless of the method of delivery [Human Rights Watch, Harvard Law School’s International Human Rights Clinic, The Human Suffering Caused by Incendiary Munitions – Memorandum to Convention on Conventional Weapons Delegates (2011)]. Maya Brehm – the views expressed are those of the author alone and do not necessarily reflect the views of Article 36 Bibliography

Human Rights Watch, Harvard Law School’s International Human Rights Clinic, ‘Memorandum to Convention on Conventional Weapons Delegates – The Human Suffering Caused by Incendiary Munitions’ (2011). ‘Incendiary Weapons’, Weapons Law Encyclopedia. F. Kalshoven, ‘Arms, Armaments and International Law’, in Collected Courses of the Hague Academy of International Law (1985), pp. 256–259. M. Lumsden, Incendiary Weapons (1975).

408

Indiscriminate Attacks

Indiscriminate Attacks. Indiscriminate attacks are prohibited under ihl in international and non-international armed conflict. According to both treaty and customary international law, indiscriminate attacks are defined as “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction” [art. 51(4) api; rule 12 icrc Customary ihl Study]. The prohibition of indiscriminate attacks is intrinsically linked to the principle of distinction [see: Distinction], as its main objective is to spare the civilian population from the effects of attack [see: Civilians; Civilian Population]. It differs from the prohibition to directly attack civilians in that, in the context of a direct attack, the attacker directly targets civilians, while an attacker involved in an indiscriminate attack disregards civilian damages or injury [see: Attacks against Civilians and Persons Hors de Combat]. According to Article 85(3)(c) api, “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” is a grave breach of ihl and therefore a war crime [see: Grave Breaches]. This has been confirmed in Article 8(2)(b)(iv) icc Statute for international armed conflicts. In addition, Article 8(2)(b)(xx) icc Statute prohibits the use of weapons “which are inherently indiscriminate in violation of the international law of armed conflict”. Indiscriminate attacks are exemplified by the two types of attacks mentioned in Article 51(5) api: (a) so-called “carpet bombing”, that is “an attack by bombardment by any methods or means which treats as a single military 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”; and (b) violations of the principle of proportionality, namely an attack “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” [see: Proportionality]. 1. Historical Origin Compared to the moral and religious development of the basis for the principle of distinction in the Middle Ages, the prohibition of indiscriminate attacks is a more recent development, which first arose in the legal practice of the nineteenth century and led to its status as a rule of customary law [1987 icrc

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Commentary api, paras. 1823–1827]. The first attempt to codify the prohibition of indiscriminate attacks in the area of air warfare manifested itself in Article 24(3) of the 1923 Hague Rules for Air Warfare. Although they have to be seen as clarifying the customary law rule at that time, the 1923 Hague Rules for Air Warfare never entered into force and remained the last attempt at codification until the 1977 Diplomatic Conference which brought about the adoption of the respective provision in api [1987 icrc Commentary the respective provision in api, para. 1924]. The drafting process leading to the current form of Article 51(4) and (5) api was not an easy one. There were voices that wanted to limit the prohibition to the statement of the first sentence of Paragraph 4: “[i]ndiscriminate attacks are prohibited” [1987 icrc Commentary api, para. 1950]. However, due to the experiences from World War ii, a more detailed definition of indiscriminate attacks was agreed upon. 2. Article 51(4) api Article 51(4) api covers two aspects of ihl relating to indiscriminate attacks: the indiscriminate use of weapons (i.e. the method of warfare) and the use of indiscriminate weapons as such (i.e. means of warfare) [see: Hostilities, Conduct of]. In this regard, Article 51(4) api sets forth a three-step approach. Subparagraph (a) deals with attacks not directed at a specific military objective and refers to the manner in which a particular attack is carried out [W. Boothby, Weapons and the Law of Armed Conflict (2009), p. 78]. This is the clearest consequence of the principle of distinction. Crucial for the proper implementation of this subparagraph is the definition of a military objective and it must be clarified in advance whether the attack is directed against such a military objective [see: Military Objectives]. As a consequence, military strategies like “blind fire” into territory controlled by the enemy is prohibited, as is the release of bombs over the territory of the adversary when the original objective was missed [S. Oeter, ‘Means and Methods of Combat’, in D. Fleck (ed.), Handbook of International Humanitarian Law (2013), p. 191]. While attacking a specific military objective, the attacker might spread his fire over a certain area (“harassing fire” or “interdiction fire”) against strategic points, but the respective target must be able to be identified as one single military target. In this regard, the strategy of “area bombardment” in which several distinct military objectives are treated as one single target is prohibited, due to the danger that in these cases such untargeted fire will endanger civilians and the civilian population. Subparagraph (b) encompasses the inherent ability or inability of either the means or methods of warfare to be directed against a specific military

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o­ bjective [Boothby, p. 78]. This refers especially to the first historic examples of r­emote controlled weapons, like the German V-1 or V-2 bomb, which, because of their inaccuracy, could not properly target a military objective and were shot into the broad direction of British cities during World War ii. Another example would be the way Scud-Missiles were shot by Iraq in the general direction of Tel-Aviv. In a similar way, it has been discussed that the use of land or sea mines can constitute an attack in the spirit of this subparagraph when “a person was directly endangered by such a mine” [1987 icrc Commentary api, paras. 1959–60; see: Landmines]. Finally, sub-paragraph (c) prohibits the use of methods or means of combat the effects of which cannot be limited as required by api. This is sometimes seen as the most controversial part of the definition of indiscriminate attacks [Oeter, p. 193]. These obligations need to be understood as “the rationale and essence of the principle of distinction” [Boothby, p. 78]. Considering the possibility that the use of nuclear weapons could violate this paragraph, a number of States lodged a reservation with regard to this provision. 3. Article 51(5) api While Article 51(4)(a)-(c) api describes indiscriminate attacks in an abstract way, Article 51(5) api gives two more concrete examples. It needs to be highlighted that these are just two examples “among others”, so it is not to be seen as an exhaustive list. Article 51(5)(a) api concerns the type of attack known as “area bombardment” during World War ii, which was seen as legal by the allied powers at that time [Oeter, p. 196]. While there has been a long-term discussion about the legality of these attacks, States were reluctant to lay down an explicit prohibition. Therefore, subparagraph (a) now reflects an innovation. In the end, this is a further exemplification of the more abstract category of indiscriminate attacks contained in Article 51(4)(b) api. It is important to clarify that this provision is only applicable when the military objectives are “clearly separated and distinct” [Boothby, pp. 78–79]. Where there is no possibility for the commander to make a clear distinction between the different targeted objectives, Article 51(5)(b) api provides for an explicit codification of the principle of proportionality. This provision thus clarifies that a violation of the principle of proportionality is seen as a breach of the prohibition of indiscriminate attacks. While the exact wording of this subparagraph was the object of extensive discussions, it is striking that neither the word “disproportionate” nor the word “extensive” was chosen, but rather the seemingly stronger term “excessive”. According to his own account, Frits Kalshoven suggested this terminology, since States originally could not agree

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

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Robert Heinsch – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W. Boothby, Weapons and the Law of Armed Conflict (2009), pp. 69 et seq. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 146 et seq. T. Gill, R. Geiss, R. Heinsch (ila Study Group), The Conduct of Hostilities under International Humanitarian Law – Challenges of 21st Century Warfare (2017). S. Oeter, ‘Means and Methods of Combat’, in D. Fleck (ed.), Handbook of International Humanitarian Law (2013).

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

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securing the implementation and enforcement of international law [see: State Responsibility]. In particular, individual criminal responsibility for violations of international law has traditionally been attached to particularly serious behaviour, e.g. acts of genocide, crimes against humanity, war crimes, and acts of aggression, which are often identified as the “core international crimes” [e.g. arts. 5–8bis icc Statute; arts. 2–5 icty Statute; arts. 2–4 ictr Statute; see: International Criminal Law]. These violations of international law are often carried out by a plurality of people and/or in contexts of emergency, armed conflict, or generalized violence. Individuals may be involved in crimes in various capacities, but criminal responsibility arises only for some specific types of involvement, also known as “modes of liability” or “forms of responsibility”. Their precise and foreseeable definition is fundamental to attribute individual responsibility for what often can be described as collective criminality. In this regard, the statutes of international criminal tribunals usually contain a list of modes of liability to be applied in the relevant proceedings [e.g. art. 25 icc Statute; art. 7 icty Statute; art. 6 ictr Statute]. “Commission”, also known as “perpetration” is the principal mode of liability for a crime. Crimes can be perpetrated by an individual directly (i.e. when he or she carries out all the elements of the crime as defined by the law), by an individual indirectly (i.e. when he or she carries out the elements of the crime through another person, regardless of whether the latter is criminally responsible or not), or by more individuals jointly. In order to deal with this last case, different tribunals have adopted dissimilar doctrines. In particular, the icty has used the doctrine of Joint Criminal Enterprise, deemed to have a customary basis, according to which all individuals sharing a common criminal plan are responsible for all crimes involved in the plan’s implementation, as long as they have made a significant contribution to such implementation. According to the broadest reading of such doctrine, those who share the plan would also be responsible for the perpetration of all the crimes that, despite not forming part of the original plan, constituted a reasonably foreseeable consequence of the plan’s implementation [Judgment, Tadić, icty, Appeals Chamber, paras. 227–228]. Joint Criminal Enterprise has been used as a mode of liability also by other tribunals, including the ictr and the scsl. The icc, instead, has had recourse to a different doctrine to deal with joint perpetration, namely the ­theory of co-perpetration through control over the crime. According to such doctrine, participants in a common plan involving the perpetration of one or more crimes are responsible for such crimes if they shared the plan and made an essential contribution to its implementation [Judgment, Lubanga,

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icc, ­Trial Chamber, paras. 981–1018]. Such essential contribution would be evidence of “control over the crime”, in that withholding it could have frustrated or significantly modified the common criminal plan’s execution. Individuals who have not perpetrated a crime can still be found to be criminally responsible for a variety of other (so-called “accessory”) forms of participation. Like in many domestic systems, ordering, instigating (in the language of Article 25(3)(b) icc Statute, “soliciting or inducing”), or aiding and abetting the perpetration of a crime would give rise to individual criminal responsibility in international law as well. Peculiar to international law is the mode of liability known as “command/superior responsibility” [see e.g. art. 28 icc Statute; art. 7(3) icty Statute], pursuant to which those military or civilian superiors who culpably fail to prevent or punish crimes committed by their subordinates may be held criminally liable [see: Command Responsibility]. Finally, it should be recalled that individual criminal responsibility could be excluded in certain occasions [e.g. arts. 31–33 icc Statute]. Specific circumstances (e.g. self-defence) legally justify the performance of a conduct that would otherwise constitute a crime. Other circumstances (e.g. involuntary intoxication or duress) may excuse individuals who performed an illegal conduct, exonerating them from criminal responsibility. As mentioned, since the Nuremberg trials, the fact that an individual acted pursuant to superior orders does not relieve him or her from responsibility. However, Article 33 icc Statute seems to have introduced (for war crimes only) an exception to the ­unavailability of such defence, when the defendant was not aware of the order’s i­llegality and such illegality was not manifest [see: Superior Orders, Defence of]. Antonio Coco – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Eser, A., ‘Individual Criminal Responsibility’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002). Schabas, W., The International Criminal Court: A Commentary on the Rome Statute (2016), pp. 539–671. E. van Sliedregt, Individual Criminal Responsibility in International Law (2013).

Information Bureaux; see: National Information Bureaux Inhuman Treatment. The prohibition on inhuman treatment is a core ihl principle. Indeed, after World War ii, it was placed at the centre of the law

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

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Trial Chamber, para. 543]. Interestingly, this approach is supported by Article 7(1)(k) icc Statute (with regards to inhuman treatment as a crime against humanity), but not by Article 8(2)(a)(ii) and 8(2)(c)(i) icc Statute (with regards to inhuman treatment as a war crime). Such divergences are perhaps attributable to the different goals of the respective legal fields, but the question of how this development affects the ihl notion of inhuman treatment remains to be seen. Emma Irving – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

C. Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and Other Forms of IllTreatment in International Humanitarian Law’, 89(867) irrc (2007). M. Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014). M. Nowak, R. Janik, ‘Torture, Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).

Inhumane Weapons Convention; see: Convention on Certain Conventional Weapons (1980) Initiative; see: International Committee of the Red Cross Integrity; see: Seriously Endangering the Physical or Mental Health or Integrity of Protected Persons Internal Disturbances and Tensions. Internal disturbances are situations involving clashes characterized by a certain gravity and length, amounting to a serious disruption of domestic order, including acts of violence. In general, in such situations, government authorities face groups of persons or demonstrators that express their opposition and discontent, and demand to be heard. This may occur, for instance, during meetings, gatherings of persons, demonstrations, national strikes, riots, and even coups d’état. Experts indicate that even isolated and sporadic acts of violence or situations of fighting between different factions can be considered to be an internal disturbance [M. Harroff-Tavel, ‘Action Taken by the International Committee of the Red Cross

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

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International Human Rights Law; Customary International Law]. In addition, soft-law instruments, such as the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide guidelines for law enforcement officials on how to proceed while using coercive force. Disturbances and tensions are, nonetheless, sometimes accompanied by violations of human rights. Rights particularly endangered in such cases comprise: the right to life; the right to liberty and security; the right not to be subjected to torture and cruel, inhuman, or degrading treatment or punishment; and the right not to be subject to arbitrary arrest or detention. In case of such violations, the victims and their families may access the national criminal justice system in accordance with domestic legislation. Should such crimes amount to crimes against humanity or even genocide, they may potentially have recourse to the international justice system too, such as the icc, provided that it may exercise jurisdiction. Finally, it is worth noting the pressing need for a legal instrument specifically defining and regulating disturbances and tensions, considering that they occur increasingly often and involve consequences that – in some cases – are comparable to those of armed conflicts or lead to an escalation of violence ultimately resulting in hostilities [Moloeznik, pp. 42–46]. States consider these situations to be strictly of national concern and are, thus, afraid of ­constraining their national sovereignty by agreeing to specific definitions. In this respect, the international community has refrained from the use of the expressions “internal disturbances and tensions” and has opted for the more general expression “other situations of violence”. Marcos Pablo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

C. de Rover, To Serve and to Protect: Human Rights and Humanitarian Law for Police and Security Forces (1998). M. Harroff-Tavel, ‘Action Taken by the International Committee of the Red Cross in Situations of Internal Violence’, 294 irrc (1993). M.P. Moloeznik, Manual de Sistemas Comparados de Policía (2010).

International Armed Conflict. An armed conflict is characterised as “international” (as distinct from “non-international”) when it involves two or more o­ pposing States [see: Non-International Armed Conflict]. The legal

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

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armed force between States” rather than “protracted armed violence between States and organised armed groups or between such groups […]”. 2. Resort to Armed Force According to the icty in Tadić, the threshold for an international armed conflict is very low – whenever a State resorts to armed force against another State. The icrc confirms that no specific threshold level of intensity is required to establish an international armed conflict. The icrc concedes that there might be circumstances in which members of a State’s armed forces resort to force ultra vires or in what might be termed a “border skirmish” or a “naval incident” that neither of the States involved wants characterised as an international armed conflict [2016 icrc Commentary gci, para. 237]. However, the icrc also asserts that, as soon as one State has physical custody of members of the armed forces of another State, there is an international armed conflict and the protective regime of gciii applies [2016 icrc Commentary gci, para. 239]. For instance, the U.S. claimed the protection of gciii for a pilot shot down over Lebanon’s Beka’a Valley in 1982 by a Syrian surface-to-air missile, on the basis that an international armed conflict existed between the US and Syria over Syrian occupied Lebanese territory [C. Greenwood, ‘International Humanitarian Law and United Nations Military Operations’, 1 yihl (1998), p. 7]. It is conceivable that an international armed conflict could be triggered solely by virtual means if, for example, cyber attacks targeted critical infrastructure with devastating effects [see: Cyber Warfare]. Most experts agree that the means of conducting hostilities is less significant than the consequences for the purposes of determining the existence of an international armed conflict [rule 82 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations]. 3. Indirect Intervention A non-international armed conflict between a State’s armed forces and a nonState armed group can transform into an international armed conflict by the indirect intervention of a second State in support of the non-State armed group [see also: Transnational Armed Conflict]. In the Nicaragua case, the icj decided that alleged violations of ihl by the Contra Rebels could not be attributed to the U.S. for the purposes of State responsibility [see: State ­Responsibility]. The icj determined that U.S. financing, organising, training, equipping, and supplying the Contras and even U.S. selection of targets and planning of military operations for the Contras was insufficient to hold the

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U.S. responsible. The Court decided that the relevant test was one of “effective control” by the U.S. over the specific “military and paramilitary operations in the course of which the alleged violations” of ihl were committed [Judgment, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), icj, para. 115]. The Court determined further that evidence of such control was lacking. In Tadić, the icty Appeals Chamber considered the nature of Serbian Government support for the Bosnian Serb military to determine whether that support was sufficiently extensive to transform an otherwise non-international armed conflict into an international armed conflict. The Appeals Chamber considered the icj’s “effective control” test, but decided it was not the appropriate test for internationalisation of an armed conflict. The correct test for these purposes, according to the Chamber, is one of “overall control” “[a]nd must comprise more than the mere provision of financial assistance or military equipment or training. This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of ihl. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group” [Judgment, Tadić, icty, Appeals Chamber, para. 137]. The majority of the Appeals Chamber decided that Serbia exercised a sufficient level of control over the Bosnian-Serb military to determine that Serbia was a party to the armed conflict with Bosnia-Herzegovina and that, therefore, the armed conflict was international – involving two opposing States despite the lack of direct engagement by Serbian government armed forces. This test has been repeatedly applied in subsequent icty cases and by other international criminal courts and tribunals. In 2007, the icj came to consider the nature of the relationship between Serbia and the Bosnian Serb military forces to determine whether or not Bosnian Serb violations of the 1948 Genocide Convention could be attributed to Serbia. The icj reaffirmed its “effective control” test and rejected the icty’s “overall control” test. The icj conceded that the overall control test may well be “applicable and suitable” for determining whether or not an armed conflict is international, but distinguished that question from the determination of State

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responsibility for the violations of international law by a non-State armed group. It is clear that the icj’s “effective control” test sets a higher threshold than that for the icty’s “overall control” test in terms of the level of involvement of the foreign State. The icrc considers that the icty’s “overall control” test is the most appropriate standard for determining the legal character of an armed conflict ­because it better reflects the relationship between the armed group and the third State [2016 icrc Commentary gci, para. 409]. The icc has also ­embraced this standard, albeit without further explanation [Judgment, Lubanga, icc, Trial Chamber, para. 541; Judgment, Katanga, icc, Trial Chamber, para. 1178; Judgment, Bemba, icc, Trial Chamber, para. 130]. It remains to be seen how these tests will be applied by international criminal courts and tribunals in the future. 4. Military Occupation The second paragraph of Common Article 2 GCs states that “[t]he Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance” [see: Common Article 2]. Again, the GCs provide no definition of a military occupation and it is necessary to refer back to Article 42 of the 1907 Hague Regulations for a definition: “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised” [see: Occupation]. Military occupation occurs where the armed forces of a foreign State exercise authority and control over part or all of the physical territory of another State without that territorial State’s consent. Whether the occupation meets with armed resistance or not, the relevant legal framework is that applicable to international armed conflicts. Usually the exercise of authority and control manifests in the presence of foreign armed forces who have displaced the local authorities in their administration of law and order. However, it is also arguable that an occupation exists over territory which the foreign armed forces could exercise effective authority and control whenever they chose to do so [2016 icrc Commentary gci, paras. 301–304]. 5. Wars of National Liberation Article 1(4) api extends international armed conflicts to include “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-­determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law Concerning Friendly Relations and Co-­operation Among States in accordance with the Charter of the United Nations”.

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This particular provision is amongst the most controversial in the entire Protocol and has precluded some States from ratification and/or accession. The most common objection is that the provision elevates the legal status of some armed groups by identifying them as parties to an international armed conflict. Such a result, according to some States, is tantamount to “legitimisation” of “terrorist” organisations. Widespread objections to the provision have ensured that Article 1(4) api does not reflect customary international law and only applies as a matter of treaty law to those States parties to api. Tim McCormack – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court or any other institution the author is affiliated with Bibliography

C. Dwyer, T. McCormack, ‘Conflict Characterisation’, in R. Liivoja, T. McCormack (eds.), Handbook on the Law of Armed Conflict (2016). J.K. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013).

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

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universality [see: International Red Cross and Red Crescent Movement]. In addition, the icrc is well-known for its respect of the principle of confidentiality, which entails that none of its findings are shared publicly, except in exigent circumstances. This has, naturally, generated much criticism in the international community for not openly exposing abuses. However, the icrc considers confidentiality essential to the execution of its mandate, as it allows it to generate trust and communicate effectively with the persons and/or parties concerned. The importance of preserving the icrc’s confidentiality has resulted in the privilege attached to its staff not to testify before any national or international body [see e.g. rule 73(4) icc rpe; see also: Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness, Simić et al., icty, Trial Chamber, paras. 34–80]. Pursuant to the first element of its mandate, the icrc seeks to protect the lives and dignity of victims of armed conflict and other situations of violence. This is done, for instance, by establishing a dialogue with weapon bearers, such as members of government armed forces or armed groups with the aim “to ensure that […] [these] actors fulfil their obligations and uphold the rights of individuals. It also tries to prevent or put an end to actual or probable violations of ihl or other bodies of law protecting people in these situations” [icrc, The icrc – its Mission and Work (2009), p. 14]. In addition, by visiting places of detention, the icrc seeks to ensure the humane treatment of detainees [see: Inhuman Treatment; Torture]. In recent years, the icrc has developed a more holistic approach in its detention activities, by means of which it seeks to cover the needs of all detainees, whether detained in relation to the conflict or pursuant to a violation of the law. However, limits linked to the context, the type of places to visit, and capacities remain. Through its visits, the icrc identifies facts and conditions, which it then shares with the authorities to remind them of their responsibilities. If necessary, the icrc can provide training and technical support on a variety of subjects (such as international standards regarding water and habitat) or deliver supplies (such as food, clothes, and cleaning kits). Finally, it is important to highlight the role of the icrc in restoring and maintaining contact between family members and clarifying the fate of persons reported missing as a consequence of armed conflict or other situations of violence [see: Missing Persons]. The second element of the icrc’s mandate consists of assisting victims of armed conflict and other situations of violence by addressing the essential needs of individuals and/or communities in accordance with the social and cultural environment. These needs usually relate to issues of health, water, sanitation, shelter, and economic security. The assistance activities of

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the icrc are not limited to the provision of goods and services. In certain ­contexts, they extend to providing support to the existing institutions and services, t­ raining s­ pecialized staff, and persuading the authorities to assume their responsibilities. The icrc’s modes of action are key to a better understanding of its functioning. To increase awareness of responsibility and provide services or goods, the icrc engages, as the case may be, in: (i) persuasion (e.g. direct dialogue with armed actors or ihl training); (ii) mobilization of State agencies or third actors to fulfil a specific task (e.g. requesting an organisation to deliver food supplies); (iii) denunciation as a measure of last resort (e.g. reminding Israel of its obligation under ihl of facilitating contact between Palestinian detainees in Israel and their families residing in the occupied territories in May 2017); (iv) provision of support to local staff (e.g. concerning health activities and animal vaccination) or supplies (e.g. fishing kits, farming tools, and vaccination equipment); and (v) acting as a substitute to provide the required activity itself when there is no will or capacity to do so. The icrc does not limit itself to any of these modes of action but may combine them. It is, furthermore, noteworthy that the icrc acts as the guardian of ihl. It received this role as recognition for its support in the adoption of the 1864 Geneva Convention and it was formalized in Article 5 of the Statutes of the International Red Cross and Red Crescent Movement. Since then, the icrc has sought to promote the adequate application of ihl and to adapt it to the demands of current armed conflicts, especially in relation to the means and methods of warfare. For instance, it provides authoritative interpretation (commentaries) of the GCs and APs, has prepared an extensive study on customary ihl [see: Customary International Humanitarian Law], and supports efforts to introduce ihl into national legislation [see: Implementation]. Gerardo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

P. Boissier, History of the International Committee of the Red Cross, Volume i: From Solferino to Tsushima (1978). A. Durand, History of the International Committee of the Red Cross, Volume ii: From Sarajevo to Hiroshima (1984). icrc, The icrc. Its Mission and Work (2009). A. Aeschlimann, ‘Protection of Detainees: icrc Action behind Bars’, 87(857) irrc (2005).

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International Committee of the Red Cross, Visit. Persons deprived of their liberty in the context of either armed conflict or other situations of violence are inherently vulnerable by virtue of the power relationship between detaining authority and detainee [see: Deprivation of Liberty; Assigned Residence; Internment]. The icrc has accordingly been mandated by the GCs and their APs to secure humane treatment and conditions of persons detained in connection with either international or non-international armed conflict [see: International Committee of the Red Cross]. Where the humanitarian situation demands, it may also visit persons criminally or administratively detained, outside the context of armed conflict. Through its visits, the icrc endeavours to: prevent torture and other forms of ill-treatment [see: Torture; Humiliating and Degrading Treatment; Inhuman Treatment]; prevent and resolve disappearances [see: Missing Persons; International Convention for the Protection of all Persons from Enforced Disappearance (2006)]; improve conditions of detention (e.g. regarding food, water and health services) [see: Deprivation of Liberty, Treatment]; restore and maintain family contacts; and ensure respect for legal safeguards. The icrc’s visits to persons deprived of liberty date back to the 1870 FrancoPrussian War, when its staff visited prisoners of war to distribute letters and relief parcels from their families [see: Prisoners of War]. During World War i, the icrc compiled reports on visits, with a view to improving the detention conditions of prisoners of war, and the individual data on those prisoners were centralized. The subsequent 1929 Geneva Convention explicitly made provision for the monitoring of detention by the icrc. However, at the time, there was no treaty or customary law entitlement for the icrc to visit prisoners in accordance with its now standard modalities, including private interviews. On the basis of this experience, the organization vested itself with a stricter methodology, which was enshrined, in 1949, in Article 126 gciii and Article 143 gciv. These visit procedures are binding on all States engaged in international armed conflict as a matter of customary ihl [rule 124 icrc Customary ihl Study]. Similar rules customarily apply in non-international armed conflict, although icrc access to prisoners is not automatic and must be negotiated [common art. 3 GCs; art. 18(1) apii; rule 124 icrc Customary ihl Study]. In the decades following World War ii, the icrc developed its activities in aid of persons deprived of their liberty. In all armed conflicts, the organization has invoked ihl (normally through a formal rappel du droit diplomatic ­cable) and called on the parties to honour their international commitments, in ­particular by granting the icrc access to all persons captured in the course of military operations. In situations of violence falling short of armed conflict,

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the icrc has taken the initiative of offering its services to the authorities concerned [art. 5(2)(d) Statutes of the International Red Cross and Red Crescent Movement]. The icrc’s detention-related work is based upon a comprehensive assessment of the situation both inside and outside places of detention. This is facilitated by confidential, bilateral dialogue with the detaining authorities. Its established visit methodology includes: access to all detainees within its legal remit; access to all premises and facilities used by and for the detainees; authorization to repeat its visits; the possibility to speak freely and in private with the detainees of its choice; and the assurance that the authorities will provide the icrc with a list of all detainees within its field of interest or authorize it to compile such a list. A subsequent analysis of the information gathered enables the icrc to identify the main risks faced by the detainees and other factors influencing their situation, including the challenges that confront the detaining authorities in attempting to address humanitarian concerns. The icrc works with the detaining authorities and expects them to take the necessary steps to ensure humane treatment and conditions of detention. It therefore maintains a confidential dialogue with them concerning its findings, relevant national and international standards, and the action and resources required to improve the situation of detainees. On the basis of its assessment and analysis of each ­situation, the icrc develops a specific strategy to meet the needs of the detainees most effectively. The strategy may include icrc action in relation to ­individual detainees, facilities, organizations and regulatory frameworks, plus material or technical activities aimed at meeting humanitarian needs. The effectiveness of the icrc’s detention visits is closely connected to the detaining authorities’ respect for its consistent and rigorous working methods, including the conditions and procedures for visits and the confidentiality of its work. In the absence of an agreement to respect its visit modalities, which remain the same worldwide, the icrc cannot effectively protect the rights of detainees under international law. In 2016, close to one million persons deprived of liberty benefited from icrc involvement and activities in 1650 places of detention in 98 countries. Nevertheless, in a minority of cases, there remain practical challenges to visits, including the denial of access by sovereign States in non-international armed conflict and other situations of violence, the refusal to accept the icrc’s mandatory working modalities, or the impossibility of gaining access to certain facilities on the territory of non-State armed groups. Any of these challenges may be overcome through arguments appealing to the authorities’ understanding of the icrc’s neutral, impartial, and independent mandate based in ihl.

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Andrew Carswell – the views expressed are those of the author alone and do not necessarily reflect those of the icrc Bibliography

A. Aeschlimann, ‘Protection of Detainees: icrc Action behind Bars’, 87(857) irrc (2005). D. Tuck, ‘Detention by Armed Groups: Overcoming Challenges to Humanitarian Action’, 93(883) irrc (2011).

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

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

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surrendered, expelled, or returned [art. 16 icpaped; see: Non-Refoulement]. States parties must afford one another mutual legal assistance and ­humanitarian cooperation [arts. 14–15 icpaped]. Article 17 icpaped prohibits secret detention. Access to information on persons deprived of their liberty must be ensured to certain persons having a legitimate interest, including relatives and their legal representatives, while conducts aiming at obstructing or unduly restricting such access must be sanctioned [arts. 18–22 icpaped]. States parties must ensure that law enforcement personnel are trained on the contents of the treaty [art. 23 icpaped]. Article 24 icpaped recognises as victim of enforced disappearance not only the disappeared person, but also any individual who has suffered harm as the direct result of an enforced disappearance, such as relatives of the disappeared. This provision spells out in detail the rights of victims of enforced disappearance, including the right to know the truth and to obtain compensation and reparations. Article 25 icpaped sets forth obligations in cases concerning the enforced disappearance of children, including where the latter are wrongfully removed and the documents ­attesting to their true identity are falsified, concealed, or destroyed. The implementation  of the  icpaped is monitored by the Committee on Enforced Disappearances (ced). The icpaped requires States parties to adopt several amendments in their domestic legislation. To date, compliance has not been particularly high. Very few States codify enforced disappearance as a separate crime under their domestic legislation or have adapted their legislation to issue “certificates of absence due to enforced disappearance”. The ced plays thus a crucial role in enhancing the level of enforcement of the icpaped. There is a rich – although not always homogeneous – jurisprudence on enforced disappearance, mostly developed by domestic tribunals and international human rights mechanisms. While the latter coincide in considering that this practice entails a violation of the right to personal liberty and security and amounts to a form of inhuman treatment against the relatives of the disappeared person, their case law differs as regards the other fundamental rights impaired, including the right to life, the right to recognition as a person before the law, the right to an effective remedy and the right to fair trial. The main discrepancy however concerns the violation of the prohibition of torture with regard to the disappeared person. The hrc and the IACtHR apply a presumption and reverse the burden of proof, considering that the deep feelings of fear and defencelessness experienced by the disappeared person amount, at a minimum, to inhuman and degrading treatment. The ECtHR has never reached this conclusion, rather requesting applicants to prove beyond reasonable doubt that their relative has in fact been tortured.

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Gabriella Citroni – the views expressed are those of the author alone and do not necessarily reflect the views of TRIAL International or any other institution the author is affiliated with Bibliography

L. Ott, Enforced Disappearance in International Law (2011). T. Scovazzi, G. Citroni, The Struggle against Enforced Disappearance and the 2006 United Nations Convention (2007). M.L. Vermeulen, Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance (2012).

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

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be repressed by States, but the failure of many States to do so contributed to the establishment of international courts and tribunals with corresponding jurisdiction. International criminal law has, therefore, strengthened the implementation of ihl to a certain extent. However, the two branches of law must not be equated to each other. The main differences are the following: ihl is primarily concerned with State responsibility and is primarily applied during armed conflict in order to prevent violations as far as possible [see: International Humanitarian Law]. To the contrary, international criminal law focuses on individual criminal responsibility and is mainly applied after a violation has occurred. The main aims of international criminal law are retribution (the expression of society’s condemnation by punishing the perpetrator for his or her conduct) and deterrence (preventing the perpetrator and others from engaging in similar conduct in the future). Wider aims have been ascribed to international criminal law as well, including rehabilitation of the offender, documenting historical events, and contributing to reconciliation. However, doubts have been expressed as to the possibility of achieving such aims through international criminal law, which remains essentially a tool for determining the guilt or innocence of an individual. The rise of international criminal law has, inter alia, been hailed for preventing the collective condemnation of a State or a group, and for enabling the prosecution of those accused of horrendous crimes in circumstances in which States have not been willing or able to do so. However, this body of law has not been free from criticism. In this regard, the high costs of international criminal tribunals, the limited enforcement powers of these institutions, and the selectivity of international criminal justice have, for example, been highlighted. Camilla van der Walt, Ousman Njikam – the views expressed are those of the authors alone and do not necessarily reflect the views of the United Nations Mission in South Sudan, the United Nations International Residual Mechanism for Criminal Tribunals, or the United Nations in general Bibliography

R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal Law and Procedure (2010), pp. 3–40. D. Shaw, International Law (2008), pp. 397–443.

International Criminal Tribunals. Following World War ii, and particularly from the early 1990s, international criminal tribunals (icts) became ­increasingly important fora in the prosecution of serious violations of ihl, in

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

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a­ ppointment and composition of judicial benches (having a great diversity of professional backgrounds, often with limited prior legal or judicial experience), and staffing and funding arrangements (again, legal staff bring a diverse range of skills and experience to the icts). A central question for the future of icts is the interplay between the role of the icc as a permanent institution and the possibility of further ad hoc icts, which may offer the international community greater flexibility in reaching political agreements on how to provide accountability. The icts have continued to contribute to significant developments in ihl (for instance, the effect of the icty’s Tadić Appeals Chamber jurisprudence on non-international armed conflicts, or the impact of the icc’s Bemba trial judgment on sexual and genderbased violence in armed conflict) and have brought about steps towards greater accountability following many of the armed conflicts of recent years. Yet, both the ad hoc tribunals and the icc have continued to face criticism based principally on the length of proceedings and on accusations that prosecutions are brought selectively. While the icc is undoubtedly the premier forum for prosecuting international crimes for the foreseeable future, this does not prevent the existence of a range of different icts with prescriptive jurisdiction that overlaps with the icc’s. Therefore, the potential for future icts remains rich and fertile [see: Hybrid or Internationalised Tribunals]. The future of icts is unlikely to be monolithic or limited to the icc; it is more likely to be diverse and comprised of a community of icts [W. Burke-White, ‘Community of Courts: Toward a System of International Criminal Law Enforcement’, 24 mjil (2002), p. 1], which in turn, goes hand-in-hand with a pluralistic approach to the development of international criminal law [P. Webb, International Judicial Integration and Fragmentation (2013)]. Tomas Hamilton – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

L. Bådagård, M. Klamberg, The Gatekeeper of the ICC-Prosecutorial Strategies for ­Selecting Situations and Cases at the International Criminal Court (2016). S. Brammertz, The Legacy of the icty: Fair Trials and Cooperation with Local Courts. Assessing the Legacy of the icty (2011), pp. 27–34. R. O’Keefe, International Criminal Law (2015), pp. 85 et seq. C. Stahn, The Law and Practice of the International Criminal Court, Part 1: Context, Challenges, and Constraints (2014).

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P. Webb, International Judicial Integration and Fragmentation (2013). R. Zacklin, The Failings of Ad Hoc International Tribunals (2004).

International Human Rights Law. ihrl is the body of international law comprising a set of rules, established either by treaties between States or by custom, aimed at regulating the relationship between States and individuals, with regard to the latter’s fundamental rights and freedoms. ihrl lays down obligations which States are bound to respect, protect, and fulfil. This means that States must refrain from interfering with or curtailing the enjoyment of human rights (obligation to respect). They must further protect individuals and groups against human rights abuses (obligation to protect). Finally, they must take positive action to facilitate the enjoyment of basic human rights (obligation to fulfil). Human rights are inherent entitlements that belong to every person as a consequence of being human, regardless of the nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. They are interrelated, interdependent, and indivisible. Human rights are also inalienable. That means that they should not be taken away, except in specific situations and according to due process (for example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law). The origins of ihrl go back to the Magna Charta of 1215. However, it is only with the adoption, by the unga on 10 December 1948, of the udhr, that these rights have been recognised under international law. The latter spelled out for the first time basic civil, political, economic, social, and cultural rights that all human beings should enjoy. The udhr, together with the 1966 iccpr (which provides e.g. for the right to life, the right to equality before the law and freedom of expression) and its two Optional Protocols, and the 1966 icescr (which provides e.g. for the right to work, to social security and education, or collective rights, such as the rights to development and self-determination) form the so-called International Bill of Human Rights. Equally important are the Conventions on Genocide (1948), the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the UN Convention Against Torture (1984) and the Convention on the Rights of the Child (1989) [see: Non-Discrimination; Torture; Convention on the Rights of the Child (1989) and its Protocols]. States have adopted further human rights instruments at the regional level, such as the echr (1950), the American Declaration of the Rights and Duties of

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Man (1948), the achr (1969) and the achpr (1981), which address particular human rights concerns in a specific region. Through their ratification, States undertake to adopt implementing measures at domestic level. Since 1948, the unga has adopted some eighty (80) human rights conventions and declarations, whereas the ohchr has lead responsibility for their promotion and protection. The UN has further established mechanisms, such as the hrc and numerous so-called treaty-bodies to monitor their implementation. In addition, there are numerous non-treaty based principles and guidelines (soft law) that also belong to the body of ihrl. The cornerstone principle of ihrl is universality: after its first emphasis in the udhr in 1948, it has been reiterated in various conventions, declarations, and resolutions. All States have ratified at least one and 80% of States have ratified four or more of the core human rights treaties, reflecting consent among States in creating legal obligations binding upon them, and giving concrete expression to universality. Furthermore, some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations. While ihrl was originally designed to apply in times of peace, its core provisions, which have ius cogens status and can never be restricted, have found their way into the special provisions of ihl. In this regard, the icj confirmed the convergence and complementarity of ihrl and ihl and recognized the continuing applicability of ihrl also in time of armed conflict [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, p. 240, para. 2; see also: V. Chetail, ‘The Contribution of the International Court of Justice to International Humanitarian Law’, 85(850) irrc (2003), p. 240]. Nevertheless, some ihrl treaties allow for derogations in situations of public emergency. These, however, must have a legal basis, be proportional to the crisis at hand and be compatible with other rules of international law, including ihl. Among the non-derogable human rights are the right to life, the prohibition of torture or cruel, inhuman or degrading treatment or punishment, prohibition of slavery and servitude, and the prohibition of retroactive criminal laws [J.-M. Henckaerts, ‘Concurrent Application of International Humanitarian Law and Human Rights Law: a Victim Perspective’, in R. Arnold, N. Quénivet (eds.), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (2008), pp. 237–268; C. Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, 40(2) Israel Law Review (2007), pp. 310–355]. ihlr violations, for instance, have been condemned in the context of armed conflicts or military occupation in Afghanistan, Iraq, Sudan, Russia, the

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former Yugoslavia, and Uganda [Henckaerts, p. 250]. In particular, the interplay between these two branches in the context of armed conflict has been examined by the ECtHR in the following three cases stemming from the involvement of UK troops in Iraq: Al-Skeini v. United Kingdom (2011), Al-Jedda v. United Kingdom (2011), and Hassan v. United Kingdom (2014). The British case of Serdar Mohammed v. Ministry of Defence deals with similar issues in the Afghan context, while the IACmHR and the IACtHR have addressed this aspect in Coard v. United States and Bámaca-Velasquez v. Guatemala, respectively. In the Al Jedda case, for instance, the ECtHR examined the lawfulness of UK detention practice in Iraq under the echr [J. Pejić, ‘The European Court of Human Rights’ Al-Jedda Judgment: the Oversight of International Humanitarian Law’, 93(883) irrc (2011), p. 837]. With regard to the derogation of human rights, a controversial issue is whether States can derogate from human rights treaties for situations that take place outside their territories, especially in times of armed conflict. Authors like Milanović, for instance, argue that, contrary to the dicta in some of the decisions of the House of Lords and the UK Supreme Court, extraterritorial derogations are not only permissible, but may even be necessary and desirable, “as part of the price worth paying for the treaties’ extensive and effective application outside states’ boundaries” [see M. Milanović, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict’, in N. Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and Its Challenges (2016), pp. 55 et seq]. Another matter of debate concerns the application of ihl and ihrl to peacekeeping activities and the interplay between these two bodies of law in the latter scenarios. The issue is particularly relevant with reference to the use of active, offensive force deployed by peacekeepers under the unsc mandates in Africa, and involves some critical considerations about the current interpretation of the dual applicability principle and the narrowed legal implications resulting from the application of the lex specialis logic to peacekeeping missions [J. Fowkes, ‘The Relationship between ihl and ihrl in Peacekeeping Operations: Articulating the Emerging AU Position’, 61(1) Journal of African Law (2017), pp. 1–22]. Roberta Arnold – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

V. Chetail, ‘The Contribution of the International Court of Justice to International ­Humanitarian Law’, 85(850) irrc (2003). C. Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, 40(2) Israel Law Review (2007).

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

International Humanitarian Fact-Finding Commission; see: Commissions of Inquiry and Fact-Finding Missions International Humanitarian Law. ihl, also referred to as the laws of war, is a set of rules designed to protect persons who are not, or no longer, ­participating in hostilities, as well as to safeguard other categories of persons and objects by imposing limits on the means and methods of warfare. ihl is based on several core principles, such as distinction, proportionality, and precaution [see: ­International Humanitarian Law, General Principles of]. As such, ihl is part of public international law and regulates the conduct of parties engaged in an armed conflict (ius in bello) [see: Public ­International Law]. It differs from ius ad bellum, another part of public international law, which regulates whether a State may lawfully resort to armed force against another State [see: Ius ad Bellum]. ihl only applies to situations of armed conflict, whether international or non-international [see: International Armed Conflict; Non-International Armed Conflict; Transnational Armed Conflict]. It is also distinct from ihrl, which, in general, confers inherent entitlements onto every human being, a­ pplies during peacetime and armed conflicts alike, and primarily regulates the relationship between States and persons within States’ jurisdiction [see: International Human Rights Law]. The 1863 Lieber Code and the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field are the first examples of codification of the laws of war. Modern ihl subsequently developed through two main streams: first the 1907 Hague Conventions, which aimed at regulating the conduct of warfare [see: Hague Law] and then the four GCs of 1949 which aimed at providing protection to people not taking part in hostilities [see: Geneva Conventions]. The GCs have been supplemented by the

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1977 api and apii on the protection of victims of international and non-international armed conflict respectively, and by the 2005 apiii related to the red crescent as an additional distinctive emblem. The GCs specifically address the protection of certain groups during international armed conflicts, notably wounded, sick, and/or shipwrecked members of armed forces in the field and/ or at sea, prisoners of war, and civilians [see: Protected Persons]. In non-international armed conflicts, persons who are not, or are no longer, taking part in hostilities are protected, mainly through Common Article 3 GCs and apii [see: Common Article 3; Additional Protocol ii]. The GCs have been universally ratified, whereas the rate of ratification of the 1977 APs is more limited [see: Additional Protocol i; Additional Protocol ii]. The GCs and APs represent the core of ihl, alongside customary ihl [see: Customary International Humanitarian Law]. Customary ihl is now considered to be essential because it fills gaps left by treaty law and is applicable to States that have not ratified ihl treaty law. For instance, the icrc Customary ihl Study concluded that at least 136 of 161 Rules of customary ihl ­apply equally to international and non-international armed conflicts. However, ­certain States continue to oppose the international customary law status of certain rules of ihl. ihl is at the core of substantive international criminal law, which prescribes international crimes – primarily war crimes, crimes against humanity, and genocide – and is concerned with the individual criminal responsibility of perpetrators for such crimes [see: International Criminal Law]. International criminal law contributes, to some extent, to the enforcement of ihl by prosecuting individuals for the most serious breaches of ihl. The icty and ictr, in particular, contributed to the clarification of ihl notions, thus enhancing the continuity between ihl and international criminal law. For instance, the icty held that the Tribunal’s work and jurisprudence would be grounded in ihl and confirmed that customary law and Hague law apply to non-international armed conflicts [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber]. Aurélie Roche-Mair – the views expressed are those of the author alone and do not necessarily reflect the views of the International Bar Association or any other institution the author is affiliated with Bibliography

N. Melzer, International Humanitarian Law – A Comprehensive Introduction (2016), pp. 17–20. M. Shaw, International Law (2008), pp. 1167–1203.

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

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

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­development of ihl was deeply entwined with institutionalised forms of such thinking, and certain contemporary rules (for example, some aspects of perfidy) remain hard to explain except in this context [see: Perfidy]. Perhaps for these reasons, some States and commentators continue to dispute whether chivalry or honour should be regarded as a principle of ihl [US Department of Defense, Law of War Manual (2016), pp. 50, 65–69; C.J. Dunlap Jr., ‘The DoD Law of War Manual and its Critics: Some Observations’, 92(85) International Law Studies (2016), pp. 103–107]. Matthew Cross – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

G. Abi-Saab, ‘The “General Principles” of Humanitarian Law according to the International Court of Justice’, 27(259) irrc (1987). V. Chetail, ‘The Contribution of the International Court of Justice to International ­Humanitarian Law’, 85(850) irrc (2003). C.J. Dunlap Jr. ‘The DoD Law of War Manual and its Critics: Some Observations’, 92(85) International Law Studies (2016). D.W. Greig, ‘The Underlying Principles of International Humanitarian Law’, 9(46) ­Australian Yearbook of International Law (1980). N. Hayashi, ‘Basic principles’, in R. Liivoja, T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (2016). O.F. Kittrie, Lawfare (2016). U.S. Department of Defense, Law of War Manual (2015, updated 2016), pp. 50–70.

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

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or companies” [F. Seyersted, Common Law of International Organizations (2008), p. 3]. The law of igos involves three different types of legal relationship and dynamics: (i) between the organization and its member States; (ii) between the organization and staff or organs of the organization; and (iii) between the organization and the outside world comprising issues of treaty-making by the organization and of accountability [J. Klabbers, An Introduction to International Organizations Law (2015), p. 3]. Concerning the icrc, even though it is considered a ngo, it has been given a number of specific functions of a public international organization by the four GCs and the three APs [Seyersted, pp. 8, 54; see: International Committee of the Red Cross]. igos used to be established by an international agreement or treaty between States and/or others igos, are based on a document akin to chart or “constitution”, are integrated by at least one organ, and are created by international law [C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005), p. 10]. igos may be classified in different ways, for example according to: (i) the size (regional, global or bilateral); (ii) the purpose (general political, specific defensive and/or security related, or specialized technical); (iii) the functions and powers (consultative, operational, regulatory of territory or persons, or supranational); (iv) the duration (permanent or temporary); (v) the intergovernmental or the supranational character of the organization; and (vi) the type of membership (open or closed) [Seyersted, pp. 9–10; Amerasinghe, pp. 9–13]. Some international agreements may establish organs (such as international tribunals or human rights bodies) to supervise or monitor States’ compliance with the provisions of a treaty, “either independently from or under the auspices of an igo”, even though, various international tribunals are igo “in their own capacity” [Seyersted, p. 13; see: International Criminal Tribunals; Human Rights Courts and Bodies]. In the context of ihl, international organizations may carry out a wide range of activities, from dissemination of ihl rules, to protection of and assistance to civilians, displaced persons, and victims of hostilities, medical aid, transitional justice and investigation into ihl violations as well as criminal prosecution of those responsible for war crimes. Importantly, if the founding instrument of an international organization allows for the deployment of armed forces, such as in the case of the un, even if the issue remains controversial, depending on the circumstances, the international organization could be bound to respect ihl if it operates in an armed conflict context [UNSG Bulletin on Observance by United Nations Forces of International Humanitarian Law (1999); M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part I, Vol. I (2011), Chapter 13, pp. 23-24].

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Jorge Errandonea – the views expressed are those of the author alone and do not necessarily reflect the views of the Inter-American Court of Human Rights Bibliography

C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005). F. Seyersted, Common Law of International Organizations (2008).

International Red Cross and Red Crescent Movement. The International Red Cross and Red Crescent Movement (“Movement”) is a worldwide humanitarian network composed of three main components: the icrc [see: International Committee of the Red Cross], the International Federation of the Red Cross and Red Crescent Societies (Federation), and 190 member Red Cross and Red Crescent Societies. Its mission is to “prevent and alleviate human suffering wherever it may be found, to protect life and health and ensure respect for the human being, in particular in times of armed conflict and other emergencies, to work for the prevention of disease and for the promotion of health and social welfare, to encourage voluntary service and a constant readiness to give help by the members of the Movement, and a universal sense of solidarity towards all those in need of its protection and assistance” [Preamble, Statutes of the International Red Cross and Red Crescent Movement]. This mission f­ ollows an ethical, operational, and institutional framework based on seven fundamental principles, namely humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. The abovementioned components of the Movement, while maintaining their independence and identity, cooperate with each other and, whenever necessary, with other organizations that are active in the humanitarian field. Such cooperation always proceeds on the basis of the fundamental principles [arts. 1, 7 Statutes of the International Red Cross and Red Crescent Movement]. In order to “provide more effective response to humanitarian needs using to best effect the Movement’s many resources”, clear guidelines have been adopted within the Movement “for the performance of tasks by [its] members, using the specific areas of competence and the complementary capacities of each to best effect” [Preamble Agreement on the Organization of the International Activities of the Components]. Thus, this agreement establishes, in general terms, that the lead agency will be the icrc in situations of international and non-international armed conflicts, internal strife, and their direct results. The Federation will take a proactive role in cases of natural or technological disasters and other emergency and disaster situations in peace time, which may

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require resources exceeding those of the operating National Society. Lastly, a National Society may undertake the functions of lead agency necessary for the coordination of international relief assistance within its own territory, subject to the concurrence of the icrc or the Federation [art. 3 Statutes of the International Red Cross and Red Crescent Movement]. The “International Conference is the supreme deliberative body for the Movement” and, in this context, the “representatives of the components of the Movement […] [and] States Parties to the Geneva Conventions […] examine and decide upon humanitarian matters of common interest and any other related matter” [art. 8 Statutes of the International Red Cross and Red Crescent Movement]. The participation of States’ representatives undeniably adds a political component to the discussion. Regardless of the efforts of the three components of the Movement, States’ interests and agendas are put forward and, therefore, more powerful States may set the tone of the discussion, influence the wording of a resolution, and possibly limit the scope of a decision. Consequently, the final outcome may not be what the humanitarian community would have expected and was aiming for. In recent years, members of the Movement have been directly attacked on several occasions, for instance in Libya, Yemen, Syria, and Afghanistan. This tendency poses a serious challenge to the acceptance of and respect for humanitarian actors in places affected by crisis. The Movement has responded by raising awareness on the part of authorities, affected communities, armed actors, and States on the importance of a safe environment for humanitarian actors. The measures adopted in this respect range, for instance, from dissemination of information on the nature of humanitarian work to support in relation to the adoption of laws. Gerardo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

H. Haug, Humanity for All: the International Red Cross and Red Crescent Movement (1993). icrc, ifrc, Handbook of the International Red Cross and Red Crescent Movement (2008).

Internment. Internment is a form of deprivation of liberty [see: Deprivation of Liberty] based on security reasons and, for that reason, it is often referred to as security or administrative detention. Internment is also independent of any criminal procedure. Article 21 gciii, for instance, confirms that prisoners of war may not be prosecuted by the detaining power for having directly

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

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“[t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary”, while Article 78 gciv states that protected persons in occupied territory may be subjected to assigned residence or internment “[i]f the Occupying Power considers it necessary, for imperative security reasons”. The two different wordings nevertheless create a similar standard, with the only difference that internment should be even more exceptional during occupation [1958 icrc Commentary gciv, p. 367]. Second, because internment is an exception that may only be resorted to based on specific security grounds, procedural guarantees were introduced to ensure compliance with such grounds. Both Articles 43 and 78 gciv require that the internment procedures include a right to appeal the decision, as well as a regular review process: internment in the territory of a party “shall [be] periodically [reviewed], at least twice yearly”, while it shall be subjected to a “periodical review, if possible every six months” in occupied territory. Both the appeal and the review process shall be dealt with by “an appropriate court or administrative board” in the territory of a party, and by “a competent body” in occupied territory. Here again, the difference in wording should not be interpreted as setting two different standards; it was only meant to take into account the reality of occupation, which precludes the establishment of an overly elaborate procedure. It should however be noted that both articles require the detaining power and the occupying power to take steps to determine the bodies entitled to exercise such competence over the fate of civilian internees, before they may intern any protected person. In practice, this means that while ihl grants some flexibility to States as to the exact composition of the review entity, it makes it clear that the decision shall be an administrative one, made not by an official but by an administrative organ offering the necessary guarantees of independence and impartiality [1958 icrc Commentary gciv, p. 260]. The regulation of the resort to internment, while well-developed in international armed conflict, becomes virtually non-existent when it comes to non-international ones [see: Deprivation of Liberty]. The icrc considers that internment is nonetheless “inherent” to non-international armed conflict, but recognizes that Common Article 3 GCs and apii are silent on the grounds or procedural safeguards applicable to persons interned in such situations [icrc, Opinion Paper on Internment (2014), p. 6]. Such silence should not be interpreted as implying a prohibition of internment in non-international armed conflict – for this would clearly be unrealistic, if not counter-productive and dangerous considering that internment remains a frequent occurrence in, or even a necessary component of, non-international armed conflict. What it reveals is rather the extreme difficulty experienced by States in agreeing upon wording that would regulate the grounds and procedural guarantees for

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i­ nternment, without simultaneously creating a legal entitlement for non-State parties to armed conflict to themselves intern [see: Belligerents, Equality of]. As a consequence, a consensus still remains to be achieved on the resort to internment during non-international armed conflict, whether regarding its legal basis or its regulation. The absence of any explicit legal provision detailing grounds and procedures has provoked opposing views on filling this gap, with some arguing in favour of a membership-based approach that would resemble the logic of gciii, and others promoting a threat-based approach more akin to the logic of gciv. A third position suggests that, in the absence of guidance from ihl, ihrl should regulate internment in non-international armed conflict. Anne Quintin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

E. Debuf, Captured in War: Lawful Internment in Armed Conflict (2013). L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016). icrc, Internment in Armed Conflict: Basic Rules and Challenges – Opinion Paper (2014).

Italian Military Internees. On 8 September 1943, the “axis” between Nazi Germany and Fascist Italy fell apart, after the latter signed an armistice with the Anglo-American coalition [see: Armistice]. This event triggered a rapid escalation towards the final outcome of World War ii, at least on the European frontline, but also marked an important and neglected development in ihl. After the armistice entered into force, Adolf Hitler issued an executive decree ordering the German army to treat all Italian soldiers, previously loyal allies in the conflict, as military internees, unless they accepted to continue fighting alongside the Germans. Italian soldiers who refused to do so were loaded on trains, deported to ad hoc detention camps, and assigned to forced labour or to work in war-sustaining factories. The power to intern military personnel was not unknown under the law applicable at the time: Article 11 of the 1907 Hague Convention (v) provided that a neutral power shall intern troops of a party to an armed conflict when these troops are present on its territory [see: Internment]. However, Germany was not a neutral power at that stage and, thus, did not have the right to intern Italian soldiers deployed on any territory. Crucially, Germany denied Italian military internees (imis) the status of prisoners of war, which was regulated under the 1929 Geneva Convention on

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Prisoners of War [see: Prisoners of War]. According to Article 1(2) of the 1929 Geneva Convention on Prisoners of War, which complemented the provisions of the 1899 and 1907 Hague Regulations, its protection extended to “all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations […]”. The Convention regulated in detail the treatment of prisoners of war during captivity, including the prohibition to perform work in “direct connection with the operations of war” [art. 32 1929 Geneva Convention on Prisoners of War]. Both Germany and Italy were parties to this treaty and Italian soldiers were captured on the basis that they were (suddenly) considered enemies. Accordingly, Italian soldiers should have been treated as prisoners of war [see: Deprivation of Liberty, Treatment], at least as of 13 October 1943, the date of Italy’s declaration of war to Germany. The classification of imis had, therefore, no legal basis under ihl or any other legislation, and left them in a legal vacuum, outside the protection of the law [A. Pons, Autobiografia di Guerra (2005), pp. 83–84, on file with the author]. In this regard, it is worth recalling that ihl is grounded in simple but clear dichotomies, which constitute its strengths and limitations at the same time. A fundamental dichotomy concerns the status of individuals involved in, or affected by, armed conflict. An individual is either a combatant or a civilian, in international armed conflict, and is either a civilian or a civilian taking direct part in hostilities, in non-international armed conflict [see: Combatants; Civilians; Direct Participation in Hostilities]. While these dichotomies help classifying persons in times of armed conflict in order to determine what protection, if any, they are entitled to, they do not leave much room for intermediate options. This makes it difficult, at times, to adapt ihl to new or changing scenarios. On the other hand, however, it is also difficult to place somebody affected by armed conflict outside these categories. Every person who has fallen into the enemy’s hands “must have some status under international law […]. There is no intermediate status; nobody in enemy hands can be outside the law” [1958 icrc Commentary gciv, p. 51]. The situation of imis constitutes an example of denial by a State of one of the foundational propositions of international law, namely that “no State can set itself above a rule of international law by unilateral action” [C. Tomuschat, Entitlement of Italian Military Internees to Benefit under the Law Creating A Foundation “Remembrance, Responsibility and Future”? – Legal Opinion (2001), p. 18]. Their circumstances evidence how persons involved in or otherwise affected by war can be at the mercy of a State that chooses to elevate itself above ihl. Niccolò Pons – the views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers

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Bibliography

G. Hammermann, Gli Internati Militari Italiani in Germania. ­1943–1945 (2004). C. Tomuschat, Entitlement of Italian Military Internees to Benefit under the Law ­Creating A Foundation ‘Remembrance, Responsibility and Future’? – Legal ­Opinion (2001).

Ius Ad Bellum. The term ius ad bellum came to common use after World War ii, under the law of the UN Charter. It designates the situations in which a State (or other entity) is legally entitled under international law to use force against another State or another entity. The concept is however spatially bound: it covers only uses of force in “international relations”, i.e. mainly between or among States; it does not extend to uses of force of a State on its own territory, for example to curb an insurrection. However, in a larger sense, the concept can be extended to such relations when they are exceptionally subjected to international law. This is the case, for example, if a Government concludes an agreement (e.g. a ceasefire) with a rebel group, which may even be monitored by an international organization. A use of force could in this case be in breach of that agreement and involve ius ad bellum issues. 1. Ius ad Bellum under Current International Law Under current international law, there are three situations in which a subject of international law holds a right to use force, i.e. holds an ius ad bellum. The first situation relates to the scenario of self-defense if an armed attack occurs [art. 51 UN Charter; Judgment, Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), icj, paras. 193 et seq]. The second situation refers to an authorization by the unsc under Chapter vii of the UN Charter, as this concept evolved in practice. The unga can recommend a use of force, but the extent to which this recommendation can create a legal title for a lawful use of force, if there is no other legal basis, is controversial. Regional International Organizations can authorize a use of force, but only subject to an authorization of the unsc [art. 53 UN Charter]. Third, a State can use force on the territory of another State when the recognized government of the latter has given its consent, but only within the limits of the consent given [see e.g. Judgment, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), icj, paras. 42 et seq]. There are no other recognized international legal grounds entitling to the use of force. In particular, humanitarian intervention is not legally accepted. Too many States – notably within the so-called Third World – are

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

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2. Ius Ad Bellum and Ius In Bello From the perspective of the law of armed conflicts (ius in bello) the main point of interest is the precise relationship it entertains with ius ad bellum. Both branches of international law relate to the use of force: while ius ad bellum defines which State is entitled to use force, in what situations, and under what conditions, ius in bello specifies how the military force must be used once there is in fact a situation of use of force or of hostilities and contains mainly restrictions on the lawful ways to conduct hostilities and to treat enemy personnel and civilians [see: International Humanitarian Law]. A fundamental difference is that ius ad bellum is grounded in a general prohibitive rule (non-use for force), from which it carves out permissive exceptions, whereas ius in bello is based on a general permissive rule (it is lawful to harm the adverse party in order to overpower it), from which it carves out prohibitive exceptions. There is an ever-existing tendency of every belligerent to consider that, when it possesses a good title for using force under ius ad bellum (e.g. because it ­resists aggression, or because it fights against “barbaric terrorist movements”), it should also be entitled to enjoy more liberties under ius in bello. This argument boils down to a claim for lawful inequality in ius in bello: you cannot treat alike the aggressor and the aggressed; you cannot treat alike the civilized and the barbarians, etc. Under modern international law, however, as far as ius in bello is applicable at all (e.g. it is not applicable to all context of the fight against terrorism), the foundational principle is the equality of the belligerents under the law of armed conflicts [see: Belligerents, Equality of]. In other words, all belligerents have to apply equally the ius in bello rules they are bound by. This is tantamount to saying that there is a separation between ius in bello and ius ad bellum [M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), pp. 114 et seq]. There are at least four fundamental reasons for the mentioned rule of separation between ius ad bellum and ius in bello. First, a deontological reason: the law of armed conflict provides a minimum of humanitarian protection for the actual or potential victims of war. It is not acceptable that this minimum of protection be discarded and that consequently the war ushers in unbounded destructive activity to the detriment of all. After all, one can question why the protected persons (e.g. civilians) should be less protected, just because they happen to stand on the wrong side from the point of view of the ius ad bellum entitlement of their Government [see: Protected Persons]. Second, a practical reason: the law of armed conflicts contains prohibitions that must apply to all belligerents to be workable. If one belligerent takes liberties with regard to the rules, the other belligerent will unfailingly reciprocate. No State or actor will accept to be bound by more restrictive rules than its adversary, all the more in

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the context of the struggle for survival. Third, a structural reason: it is by far not always clear which State possesses a good title under ius ad bellum. Also, there is no international organ with the power to make a binding finding on this issue. Therefore, it is common practice that each State claims to be the aggressed while none is, quite obviously, ever the aggressor. Thus, in practice, a claim to be entitled to take liberties with regard to ius in bello would be presented by each belligerent. Fourth, a legal reason: once the rules on the use of force (ius ad bellum) are brought into play or have been violated, the subsidiary rules of ius in bello are called upon to apply. They have precisely been foreseen for these specific situations. To claim that they should now not apply in their full complexion, because of the breach of ius ad bellum by some actor, is tantamount to overlooking their true legal function and operation. Overall, it can be said that the separation between ius ad bellum and ius in bello is the sine qua non condition for keeping alive the practical functioning of ius in bello. This principle of separation is now clearly expressed in paragraph 5 of the Preamble of api. It is a rule of customary international law. 3. Interaction between Ius ad Bellum and Ius in Bello There are different types of interactions between ius ad bellum and ius in bello, as illustrated by the following examples. First, the separation between ius ad bellum and ius in bello leads, in some contexts, to a two-tier legal analysis. Take the example of belligerent occupation [see: Occupation]. From the standpoint of ius ad bellum, such an occupation may be an internationally wrongful act, triggering all the consequences of State responsibility: namely a duty of cessation, restitution, and reparation. From the standpoint of ius in bello, the occupation is recognized as an entitlement to administer the territory. There is even an obligation to do so in all the cases where the belligerent holds effective hostile control over that territory [arts. 42–43 1907 Hague Regulations]. The precise link between both legal analyses can be explained as follows: (i) there is a duty of restitution and reparation under ius ad bellum, which is unaffected by the ius in bello issue (separation of ius ad bellum and ius in bello); (ii) acts performed under ius in bello and in conformity with this body of law (sometimes even mandated by it) will not be considered as internationally wrongful acts and will not give rise to a duty to make reparation (this was already established in the case law after World War ii) [see H. Meyrowitz, L’Égalité des Belligérants devant le Droit de la Guerre (1970), pp. 261 et seq]; and (iii) the ius in bello does not take position on the lawfulness of the occupation itself (which it leaves to ius ad bellum), but limits itself to consider how that territory must be administered.

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Thus, the overall result is that international law can at once, without contradiction, consider that a given occupation is unlawful and yet that it also gives rise to rights and obligations of the occupier which, when breached, could incidentally give rise to further internationally wrongful acts. Second, there are also situations where there is a closer link between the two legal branches. Thus, for example, in the law of self-defense, the applicable conditions of necessity and proportionality may refer to the conformity of the action under ius in bello, including the protection of the natural environment and the law of neutrality [see: Environment; Neutrality]. Therefore, a use of force that does not respect the latter rules can also be termed “unnecessary” and possibly “disproportionate” under ius ad bellum self-defense [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, paras. 30, 89]. In other words, the principle of separation applies strictly in the context of the “equality of belligerents” (equal application of the rules of ius in bello), but not necessarily in some other legal contexts. Robert Kolb – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

O. Corten, Le Droit Contre la Guerre (2014), pp. 932 et seq. C. Gray, International Law and the Use of Force (2004), pp. 334 et seq. H. Meyrowitz, L’Égalité des Belligérants devant le Droit de la Guerre (1970), pp. 418 et seq. K. Okimoto, The Distinction Between Jus ad Bellum and Jus in Bello (2011), pp. 389 et seq.

Ius in Bello; see: International Humanitarian Law; Ius Ad Bellum Journalists. Journalists are civilians and they, thus, benefit from the corresponding protection defined in ihl, in both international and non-­international armed conflicts [see: Civilians]. The icrc has recognized the protection of journalists in armed conflict as a norm of customary international law [rule 34 icrc Customary ihl Study]. Pursuant to Article 79 api, relative to international armed conflict, journalists engaged in dangerous professional missions in areas of armed conflict, ­including “war correspondents” authorized or accredited with the armed ­forces, qualify as civilians within the meaning of Article 50(1) api [see: War Correspondents]. Journalists may not be the targets of direct military attacks or reprisals, may not be subjected to threats of violence or indiscriminate ­attacks, and may not be used as shields [art. 51 api]. They also enjoy the fun-

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damental guarantees included in Article 75 api [see: Fundamental Guarantees]. Pursuant to Article 52 api, journalist equipment, material, and facilities are considered to be civilian objects and, therefore, are also not to be made the object of direct attack. Serious violations of the laws of armed conflict ­perpetrated against journalists, therefore, constitute grave breaches of the GCs and api [see: Grave Breaches] as well as violations of international criminal law [art. 8(2)(b)(i), (ii) icc Statute]. Like other civilians, journalists lose their protection if they participate directly in hostilities and for as long as they so participate [art. 79(2) api; see: Direct Participation in Hostilities]. Importantly, the term participation in relation to journalists does not apply to their ordinary professional activities, such as conducting interviews, taking notes and pictures, making audio and video recordings. Under api, journalists are entitled to obtain an identity card, issued by the State of nationality or residence, or the State in which the media organization employing them is located, attesting to their status as journalists on dangerous professional missions [art. 79(3) api]. The card, however, does not confer any particular status, rights, or privileges. It attests the journalists’ profession and only serves for identification purposes, particularly in case of arrest or capture. Although apii, relative to non-international armed conflicts, does not contain specific provisions for the protection of journalists, their protection as civilians extends also to such conflicts, particularly under Article 13 apii as well as Common Article 3 GCs [see: Common Article 3]. The role of journalists and war correspondents has been recognized in international criminal justice, in connection with their appearance as witnesses. The icty Appeals Chamber held that journalists working in war zones might be forced to testify only when the evidence sought “is of direct and important value in determining a core issue in the case” and “cannot reasonably be obtained elsewhere” [Decision on Interlocutory Appeal, Brđanin and Talić, icty, Appeals Chamber, para. 50]. There has been a wealth of debate on whether journalists should be granted special status under ihl, similarly to medical and religious personnel [see: Medical Personnel; Religious Personnel]. In the view of the icrc, however, the protection currently afforded to journalists under the GCs and APs is adequate. The issue rather appears to be the awareness of the armed forces of the protection applicable to journalists and its enforcement on the battlefield. Matteo Crippa – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia

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Bibliography

A. Balguy-Gallois, ‘The Protection of Journalists and News Media Personnel in Armed Conflict’, 86(853) irrc (2004). E. Crawford, K Davies, ‘The International Protection of Journalists in Times of Armed Conflict: the Campaign for a Press Emblem’, 32(1) Wis. Int’l L.J. (2014), pp. 1–36. I. Dusterhoft, ‘The Protection of Journalists in Armed Conflicts: How Can They Be Better Safeguarded?’, 29(76) Utrecht Journal of International and European Law (2013). F. Foster, ‘The Price of News from the Front Line: Rethinking the Protection of ­Media Personnel under International Humanitarian Law’, 20(3) Journal of Conflict & ­Security Law (2015). H.P. Gasser, ‘The Protection of Journalists Engaged in Dangerous Professional ­Missions’, 23(232) irrc (1983).

Judges and Public Officials. Article 54 gciv prohibits the occupying power to alter the status, apply sanctions, or take any measures of coercion or discrimination against judges and public officials in occupied territory. This prohibition is without prejudice to the prohibition to compel protected persons to work as specified in Article 51(2) gciv and “it does not affect the right of the occupying power to remove public officials from their posts” [art. 54(2) gciv]. As a situation of occupation is by nature temporary and should not introduce far-reaching changes in the pre-existing order [see: Occupation], judges and public officials should be allowed to continue enforcing the law and administering the daily life of the population as its “natural guardians and protectors”, because they are in the best position to do so [1958 icrc Commentary gciv, p. 306]. Importantly, judges and public officials remain protected at all times under gciv, regardless of their status [1958 icrc Commentary gciv, p. 304; see: Protected Persons]. Nevertheless, along the same line of the special protection (and specific provisions) granted under ihl to particularly sensitive or vulnerable categories of persons in armed conflicts [see e.g.: Children; Women], a specific regulation was foreseen to protect judges and public officials, in light of their particular functions within the State apparatus, which may raise issues of conflict between their ethical duty to serve their country and the new authority of the occupying power. The icrc has understood the term “public officials” as referring to “people in State or local government service, who fulfil public duties” and the term “judges” as referring to “members of the judiciary” [1958 icrc Commentary gciv, p. 304]. The prohibition to alter their status aims at safeguarding the independence of judges and public officials in the exercise of their functions

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[1958 icrc Commentary gciv, p. 304]. The prohibition to apply sanctions or other coercive or discriminatory measures attempts to strike a balance between the duty to act under the authority of the occupant, to whom they owe obedience, and the right not to swear allegiance, nor be demanded to exercise their functions in the name of the occupying power [1958 icrc Commentary gciv, p. 305]. However, according to Article 51 gciv, judges and public officials over eighteen years of age may be compelled to do work necessary for the public utility services – such as water, gas, electricity, etc. – or for the feeding, clothing, sheltering, transportation or health of the population of the occupied territory. The continuation of their work should, whenever possible, help the occupying power to achieve its duty to maintain public order and life, as required by Article 43 of the 1907 Hague Regulations. The last sentence of Article 54 gciv safeguards the long-standing right of the occupying power to remove public officials from their posts, while ensuring the bona fide application of Article 54 gciv as a whole [1958 icrc Commentary gciv, p. 308]. This applies, however, only to public officials but not to judges, considering that “the principle of independence of the judiciary ­applies absolutely, even in the law of belligerent occupation” [H.P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (2013), p. 290]. Nevertheless, since the interest of the occupied population is a priority, should the judiciary stop functioning on account of the judges’ refusal to perform their duties, the occupying power can appoint new judges [Gasser, p. 290]. The power of altering the status of or removing judges and public officials from duties belongs to that set of prerogatives of the occupying power that arguably require effective control over the occupied territory [art. 42 1907 Hague Regulations]. This, in turn, raises the issue as to when a territory can be defined occupied, thus triggering all rights and duties of the occupant and the occupied population [see: Occupation]. If a territory can be defined occupied as the invasion proceeds, that is when military operations are still ongoing (functional approach) – thus triggering all relevant provisions of gciv – judges and public officials would benefit from the protection of Article 54 gciv at an early stage. However, this would empower the occupant to remove those officials who may use their authority to the detriment of the occupying power when the occupation is not yet fully established on the battlefield. On the other hand, if occupation law becomes applicable only when the occupation is well established, this would leave judges and public officials bereft of the additional protection granted under Article 54 gciv, though still enjoying the rights afforded to protected persons.

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Land Warfare

Ania Salinas – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

H.P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (2013). M. Siegrist, The Functional Beginning of Belligerent Occupation (2011).

Kriegsraison; see: Military Necessity Land Warfare. While the means and methods of warfare have rapidly evolved, and have posed novel challenges to the legal framework for the conduct of hostilities, ultimately the bulk of armed conflict is still conducted on land. It follows that the rules and regulations pertaining to the conduct of land warfare remain as relevant as they were in the era when these rules developed. Early attempts to regulate the conduct of land warfare were contained in the Lieber Code, a series of binding instructions addressed by the U.S. ­President to the Union Army during the American Civil War in 1863. The basic protections contained in the Code were developed and gave rise to ­international agreements which placed certain limits on the conduct of land warfare. Significant early international instruments included the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field and the 1868 Additional Articles relating to the Condition of the Wounded in War (which were both updated at an international conference in Geneva in 1906). The Hague Conventions of 1899 and 1907 contained the basic rules and regulations pertaining to the laws and customs of war on land [see: Hague ­Convention (iv) Concerning the Laws and Customs of War on Land (1907); Hague Regulations (1907)]. These Conventions sought to revise the 1874 ­Brussels Declaration concerning the Laws and Customs of War, which was never ratified after its adoption at a diplomatic conference. The Hague Law also built on the developments made in the 1880 Oxford Manual, which was adopted by the Institute of International Law as a form of guidance for national legislation governing the laws of war. Article 1 of the 1907 Hague Convention obliged the contracting parties to issue instructions to their armed forces which were to be in conformity with the regulations annexed to the Convention (“Regulations”). In addition, the preamble to the Hague Conventions introduced the so-called Martens Clause,

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a provision setting a minimum standard of protection applicable to any situation [see: Martens Clause]. The Regulations contained rules pertaining, inter alia, to the treatment of prisoners of war and the conduct of hostilities. For the purposes of land warfare, Article 22 of the Regulations specified that the right of belligerents to adopt means of injuring the enemy was not unlimited. In this regard, Article 23 of the Regulations identified specific conduct which was “especially forbidden”, including: (a) the use of poison or poisoned weapons; (b) to kill or wound treacherously; (c) to kill or wound an enemy who had surrendered; (d) to declare that no quarter will be given; (e) to employ arms, projectiles or material calculated to cause unnecessary suffering; (f) to make improper use of a flag of truce, national flag or military insignia / uniform of the enemy; (g) to destroy or seize the enemy’s property, unless imperatively demanded by the necessities of war; and (h) to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of a hostile party, or to compel the national of the hostile party to take part in operations against their own country. Article 25 included a prohibition against attack or bombardment of towns, villages, dwellings or buildings which were undefended. These early Regulations pertaining to land warfare were further developed in the 1949 GCs and their 1977 APs [see: Geneva Law]. The basic principles and rules governing land warfare outline the obligations of combatants and, more generally, of all those who actively participate in hostilities. These obligations concern behaviour towards civilians and civilian property, those who are hors de combat, and towards military objectives and enemy combatants. The core ihl principles which govern land warfare include the principles of distinction, precaution, and p ­ roportionality [see: Distinction; Precautions, Active; Precautions, Passive; Proportionality]. In addition, there are a range of rules aimed at prohibiting: perfidy; the use of human shields; the recruitment of child soldiers; the denial of ­quarter and threats to deny quarter; collective punishment; reprisals; and ­forcible displacement of the civilian population, not justified by military necessity or civilian security [see: Perfidy; Human Shields; Child Soldiers; Quarter; Collective Punishment; Reprisals against Civilians; Deportation or Transfer of Civilians]. One of the most significant underlying values of these rules is respect for and protection of non-combatants, whether they are civilians or combatants, who are hors de combat [see: Hors de Combat]. Those protected ­included the wounded and sick, medical personnel, medical vehicles and medical units [see:  Wounded and Sick; Medical Personnel; Medical Units and Establishments].

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Some of the ihl rules governing land warfare also seek to protect combatants [see: Combatants]. Most notably, these include the prohibition on the use of means and methods of warfare which cause superfluous injury or unnecessary suffering [see: Superfluous Injury and Unnecessary Suffering]. Given that certain categories of weapons by their very nature are likely to cause superfluous injury or unnecessary suffering, they have been subject to prohibitions or strict rules governing their use during hostilities. The difficulty with the regulation of land warfare has always been relating to the ever-changing and developing technology, particularly with respect to weapons employed. That is reflected by the fact that the law is often two steps behind those developments, as it constantly needs to adapt and attempt to regulate the use of new and more lethal or powerful weapons. The law has had to address the use of weapons ranging from poisoned arrows to poisonous or asphyxiating gases [see: Geneva Gas Protocol (1925); Chemical Weapons Convention (1992)], expanding bullets [see: Dum-Dum (Expanding) Bullets], nuclear weapons [see: Nuclear Weapons], anti-personnel land mines [see: Landmines], biological weapons [see: Biological Weapons Convention (1972)] and more recently cluster bombs and the use of drones [see: ­Convention on Cluster Munitions (2008); Drones]. Another challenge is to find agreements between States on which weapons ought to be banned or restricted. The next challenge in the regulation of warfare may turn to military operations conducted in space or cyberspace, and whether the existing principles, which have developed over time in the context of land warfare, can adapt again and regulate military action conducted in a vastly different setting [see: Cyber Warfare]. While there will certainly need to be more specific provisions to deal with the unique circumstances of space and cyberspace, some of the underlying principles and the interests which ihl seeks to protect will be the same. Harshan Athureliya – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

W.H. Boothby, Weapons and the Law of Armed Conflict (2016). H.S. Levie, ‘History of the Law of War on Land’, 838 irrc (2000). Y. Sandoz, ‘Land Warfare’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014). M.N. Schmitt, ‘International Law and Military Operations in Space’, 10 Max Planck Yearbook of United Nations Law (2006).

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Landmines. There are several treaties in ihl regulating landmines. These include the original (1980) and amended (1996) versions of Protocol ii ccw [see: Convention on Certain Conventional Weapons (1980)], and the Convention on the Prohibition of Anti-Personnel Mines of 1997 [see: Anti-Personnel Mine Ban Convention (1997)]. Each of these treaties contains definitions identifying the constituent elements of a landmine, and distinguish between those mines that are meant for use against persons (anti-personnel mines) and those that are intended for use against vehicles (anti-vehicle mines or mines other than anti-personnel mines). The definitions in these treaties have many common elements. A “mine” is defined rather consistently in ihl. Article 2(1) of the original and amended versions of Protocol ii ccw and Article 2(2) of the Anti-­Personnel Mine Ban Convention define it as a munition placed on, under or near the ground, or other surface area, and meant to be exploded by the presence, proximity or contact of a person or vehicle. Thus, a landmine’s primary feature is that it is an explosive weapon meant to be buried, placed on or near the ground or connected to some other surface area. Another feature, and perhaps the one that most distinguishes mines from other kinds of explosive weapons, is that they are designed to be victim activated, that is, triggered by the intended target. Thus, munitions designed to be detonated by a timer, by command of the user or by other means are not considered landmines in ihl. Amended Protocol ii ccw and the Anti-Personnel Mine Convention specifically define “anti-personnel mine”. A definition of such mines was not included in the original version of Protocol ii ccw, but one was developed for its amended version in light of the effort to further regulate anti-personnel mines at the First ccw Review Conference (1995–1996) and the development of specific provisions in amended Protocol ii ccw regulating these weapons. For the most part, the definitions of an anti-personnel mine in Article 2(3) of the amended version of Protocol ii ccw and Article 2(1) of the Anti-­Personnel Mine Ban Convention have common elements. The principal distinction is that amended Protocol ii ccw defines an anti-personnel mine as “a mine that is primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons”. The definition of the Anti-Personnel Mine Ban Convention omits “primarily”, but retains the remaining elements. Thus, it defines an anti-personnel mine as “a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons”. The exclusion of the word “primarily” was meant to clarify that the Anti-Personnel Mine Ban Convention covers mines even when they have multiple functions (i.e. an

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anti-personnel mine coupled with anti-vehicle mines). This has been one of the criticisms of the definition used in amended Protocol ii ccw. Questions are often raised as to how these definitions interrelate with other kinds of munitions, such as improvised explosive devices (ieds) [see: Improvised Explosive Devices] and booby traps [see: Booby-Traps]. While ieds are not defined in any ihl treaty, a victim-activated ied would be considered as a mine and fall under the treaties discussed above. Booby-traps are defined in both the original and amended versions of Protocol ii ccw and there are specific provisions regulating these weapons. But when such devices are explosive, detonated by the action of the victim, and placed on, under or near the ground, they can also be classified as mines given existing definitions. Unlike anti-personnel mines, anti-vehicle mines are not specifically defined in ihl. The elements identifying such mines are generally derived from the definition of mine, as outlined above, which distinguishes between mines to be detonated by a person and those to be detonated by a vehicle. While the terms anti-vehicle or anti-tank mines are often widely used in general ihl discussions, it is useful to note that in the ccw context such mines are normally referred to as “mines other than anti-personnel mines”. Louis G. Maresca – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

Geneva International Centre for Humanitarian Demining, The Humanitarian and ­Developmental Impact of Anti-Vehicle Mines (2014). International Campaign to Ban Landmines, Landmine Monitor (2016). L. Maresca, S. Maslen, The Banning of Anti-Personnel Mines: The Legal Contributions of the International Committee of the Red Cross 1955–1999 (2000). S. Maslen, Commentaries on Arms Control Treaties, Vol i: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (2004).

Laser Weapons. Laser beams are capable of causing physical harm through the use of directed and focused energy, heating or even tearing human tissue apart. ihl prohibits the use of laser beams as weapons. Laser weapons were first used in the 1982 Falkland War by UK armed forces in order to blind pilots of Argentinian aircrafts. The U.S. and the Soviet Union bilaterally restricted dangerous military use of laser weapons during peacetime in 1989. The international community recognised the potential disastrous

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effects of laser weapons on future battlefields, especially to the human eye. As a result, States agreed to restrict the use of laser weapons in Protocol iv ccw on 13 October 1995 [see: Convention on Certain Conventional Weapons (1980)]. Protocol iv ccw prohibits the use and transfer, to State and non-State actors, of blinding laser weapons. In particular, Article 1 Protocol iv ccw prohibits “[t]o employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices”. The icrc has identified the prohibition of permanently blinding laser weapons as a rule of customary ihl applicable in both international and non-­ international armed conflicts [rule 86 icrc Customary ihl Study]. However, some argue that such a rule has not yet materialised for non-international armed conflicts [W.H. Boothby, Weapons and the Law of Armed Conflict (2016), pp. 202–207]. The icc Statute was amended in 2017 to include the following war crime in international and non-international armed conflict: “[e] mploying laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices” [art. 8(2(b)(xxix), 8(2)(e)(xviii)]. The main driver behind the restrictions on the use of laser beams in warfare is the general principle of ihl prohibiting to employ means and methods of warfare that cause serious injury or unnecessary suffering [see: Superfluous Injury and Unnecessary Suffering]. Indeed, large numbers of soldiers ­returning blind from the battlefield would be an immensely heavy burden on post-armed conflict medical and social services and society in general [B.M. Carnahan, M. Robertson, ‘The Protocol on “Blinding Laser Weapons”: a New Direction for International Humanitarian Law’, 90(3) ajil (1996), p. 485]. Laser pointers designed to guide bombs on target or to calculate the distance to a target are not prohibited, although some types could potentially be damaging to the human eye. According to Article 3 Protocol iv ccw, “[b]linding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol”. However, Article 2 Protocol iv ccw requires State parties to take all feasible precautions to avoid permanent blindness to the naked eye as an incidental effect of laser systems. This provision must be understood as a prohibition to use any type of laser system, such as a laser pointer, with the intention to cause permanent blindness.

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Jeroen van den Boogaard – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

B. Anderberg, O.E. Bring, M.L. Wolbarsht, ‘Blinding Laser Weapons and International Humanitarian Law’, 29(3) Journal of Peace Research (1992). W.H. Boothby, Weapons and the Law of Armed Conflict (2016), pp. 202–207. B.M. Carnahan, M. Robertson, ‘The Protocol on “Blinding Laser Weapons”: a New ­Direction for International Humanitarian Law’, 90(3) ajil (1996). L. Doswald-Beck, ‘New Protocol on Blinding Laser Weapons’, 36(312) irrc (1996). M.C. Zöckler, ‘Commentary on Protocol iv on Blinding Laser Weapons’, 1 yihl (1998).

Law Enforcement. The concept of law enforcement refers to the activity of ensuring the observance or obedience to the rules and norms governing a society. It can also be defined as the “territorial and extraterritorial measures taken by a State to vertically impose public security, law and order or to otherwise exercise its authority or power over individuals in any place or manner whatsoever” [N. Melzer, Targeted Killing in International Law (2008), p. 90]. The conduct of activities falling into this concept is governed by “a normative framework comprising the rules, principles and standards of international law” [Melzer, p. 90]. Several soft law instruments use the concept of law enforcement in order to refer to State agencies charged with performing police functions. For example, the 1979 UN Code of Conduct for Law Enforcement Officials (UN Code of Conduct) states that the “term ‘law enforcement officials’, includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention” [art. 1 UN Code of Conduct (commentary)]. The scope of power of law enforcement agencies is defined and limited within a specified jurisdiction by the domestic law of each country. On that point, the UN Code of Conduct establishes that “[l]aw enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession” [art. 1 UN Code of Conduct]. The legal status of law enforcement agencies are “regulated differently by different states” [D. Fleck, The Handbook of International Humanitarian Law (2008), p. 88].

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The general international normative framework that applies to the State agencies and officials in charge of applying law enforcement derives ­principally from ihrl [see: International Human Rights Law]. In times of armed conflict, that same normative framework continues, in principle, to apply. However, in certain circumstances, law enforcement operations must be analyzed taking into account the principle of lex specialis, which may lead to the application of ihl [Fleck, pp. 45–78]. According to ihrl, an operation conducted by a State security agency and officials must adhere to strict rules and actions, thus denoting a defensive use of force as an exceptional last resort measure. In the performance of their duty, law enforcement officials must “respect and protect human dignity and maintain and uphold the human rights of all persons” [art. 2 UN Code of Conduct]. Such operations must be analyzed taking into account essential actions in three different phases: (a) preventive actions related to the lawfulness and exceptionality of the use of force, in relation to the obligations to ensure rights and to adapt domestic law; (b) actions at the time of the incident connected with a legitimate purpose, absolute necessity and proportionality; and (c) actions following the incident associated with due diligence and the principle of humanity in relation to the obligation to respect and ensure the right to life and personal integrity. In this regard, law enforcement operations differ significantly from operations within the framework of ihl, since the latter proceeds from the premise that the use of force is permissible under certain circumstances [see: Hostilities, Conduct of; Combatants]. In practice, a lack of clarity or difference of opinion as the applicable paradigm (either law enforcement or ihl) may entail different assessments as to the legality of certain operations [see: Targeted Killing]. Jorge Errandonea – the views expressed are those of the author alone and do not necessarily reflect the views of the Inter-American Court of Human Rights Bibliography

Committee of Ministers of the Council of Europe, Recommendation (2001)10 – The European Code of Police Ethics (2001). Judgment on Preliminary Objections, Merits, Reparations and Costs, Case of Landaeta Mejías Brothers et al. v. Venezuela, IACtHR, paras. 122–143. UN Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990). unga, Resolution 34/169 – Code of Conduct for Law Enforcement Officials (1979).

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Laws and Customs of War. The icj has stated that “‘the laws and customs of war’ − as they were traditionally called − were the subject of efforts at ­codification undertaken in The Hague […]. This ‘Hague Law’ and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of the belligerents in their conduct of operations and limited the choice of means and methods of injuring the enemy in an international armed conflict” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 75; see: Hague Law; Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907); Hague Regulations (1907)]. It then continued to explain that “Geneva Law”, protecting victims of war, should be added to this and that those branches have become so interrelated that they can be considered as one single system of law named ihl, in respect of which the APs are often mentioned as having merged the two branches of law [Legality of the Threat or Use of Nuclear Weapons, para. 75; see: Geneva Law]. The modern expression ihl is defined by the icrc as “part of the body of international law that governs relations between States. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities” [icrc, War and International Humanitarian Law – Overview (2010); see: International Humanitarian Law]. Nevertheless, it has to be noted that the notion of laws and customs of war has not completely disappeared and is still favoured by some (e.g. the U.S.) over the term ihl. Also, in the statutes of the icc and other international criminal tribunals, reference is still made to the laws and customs of war in relation to the material jurisdiction of these courts and tribunals over war crimes. For example, Article 8(2)(b) icc Statute refers to “laws and customs applicable in international armed conflict”, which seems to be a mix of traditional and modern terminology. The violations listed in this provision are derived from various sources, including the 1907 Hague Regulations, the 1949 GCs, api, and some other international instruments. Moreover, Article 3 icty Statute refers to “violations of the laws or customs of war”. As the basis for this provision, the unsg notes that “[…] the Hague Regulations also recognize that the right of belligerents to conduct warfare is not unlimited and that resort to certain methods of waging war is prohibited under the rules of land warfare” [unsc, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 43]. ihl is, thus, the contemporary and more widely used terminology, but the notion laws and customs of war is still used, either interchangeably with ihl or in a stricter sense, referring more closely to the Hague Law.

Legislation in Occupied Territory

467

Iris van der Heijden (the author is grateful to Jean-Marie Henckaerts for his feedback) – the views expressed are those of the author alone and do not ­necessarily reflect the views of the Institut de Droit International or the United Nations High Commissioner for Refugees Bibliography

A. Alexander, ‘A Short History of International Humanitarian Law’, 26(1) ejil (2015).

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

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Looting

­ egulations] or it must deem such changes to be “essential” [art. 64(1) gciv]. R Second, legislation must serve one of the following purposes: (i) the security of the occupying power, such as a prohibition to bear arms or curtailing the right to assembly; (ii) the ability of the occupying power to respect gciv, such as with regard to its obligation to ensure public health and hygiene; and (iii) the obligation of the occupying power to maintain public order, such as an increase in prison sentences in response to looting [Sassòli, pp. 674–675, 678–680]. Two additional bases to introduce legislative measures in occupied territory may be identified. As an occupying power remains bound by ihrl, it is also obliged to abolish legislation contravening this body of law and even to adopt new legislation [see: International Human Rights Law]. However, it remains controversial whether an occupying power may exercise the discretion afforded to States in relation to the manner in which ihrl is implemented [Sassòli, pp. 676–677]. Moreover, an occupying power may be permitted to legislate pursuant to authorisation by the unsc. The possibility to deviate from local legislation thus requires delicate balancing between the essentially temporary character of occupation and the causes justifying such a course of action. This balance was not respected, for instance, when the occupying powers in Iraq allowed foreign investors to “transfer abroad without delay all funds associated with its foreign investment”, thus abolishing pre-existing restrictions with regard to the obligation to reinvest profits [Sassòli, p. 679]. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

A. Roberts, ‘The End of Occupation: Iraq 2004’, 54(1) Int’l & Comp. L.Q. (2005). M. Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, 16(4) ejil (2005).

Levée en Masse; see: Direct Participation in Hostilities; Civilians; Combatants Lieber Code; see: Land Warfare; International Humanitarian Law Life, Right to; see: Direct Participation in Hostilities; Targeted Killing; Human Rights Courts and Bodies, International Human Rights Law Looting; see: Pillage

Marking

469

Marking. Marking refers to the requirement for parties to a conflict to mark medical units and establishments with the distinctive flag of the Convention, i.e., the red cross, the red crescent, or the red crystal [see: Emblem]. The marking of military medical establishments and units with the “distinctive flag” was first provided for in the Geneva Convention of 1864, and has been repeatedly reaffirmed in subsequent instruments. Article 18(1) to (4) api requires parties to attempt to ensure that medical units and transports are identifiable, including by marking them with the distinctive emblem (subject to the consent of the competent authority), and through the implementation of methods and procedures which make it possible to recognise the units and transports bearing the emblem. Relatedly, Article 42 gci provides that the distinctive flag be hoisted only over medical units and establishments entitled to respect under that Convention and requires that parties take the necessary steps – insofar as military considerations permit – to make the emblems clearly visible to enemy forces. While these steps are context-specific, the icrc has, in cooperation with armed forces, conducted numerous tests as to how to ensure markings are visible to enemy forces. Many of their findings have now been incorporated into Regulations annexed to api. The caveat included in Article 42 gci makes clear that commanders retain a degree of discretion in assessing whether military considerations allow for the display of the emblem in operational contexts. It is generally recognised, for example, that a party may choose not to display markings when medical units must be placed within or near military objectives or where medical units and establishments are likely to be better protected by not displaying the emblem (such as when a belligerent systematically targets medical units). These are, however, exceptional circumstances, and military doctrine recognises that orders to camouflage medical units should be rescinded as soon as the security situation on the ground permits. The rationale for a common marking requirement is expressly stated in ­Article 42 gci: to avoid the possibility of hostile action against protected medical units and establishments. In this respect, there is a symbiotic relationship between the requirement to take the necessary steps to make the emblem visible to enemy forces and the fundamental obligation of those forces to take all feasible precautions to verify that the target of their attack is indeed a military objective [see: Precautions, Active]. Marking also has potentially considerable significance for assessing whether a given attack amounts to a war crime. In the U.S. military’s report on the 2015 air-strike on a Médecins Sans Frontières (msf) hospital in Afghanistan, for example, the mandate of the investigating officers included the question of whether the facility had visible outward markings indicating its status as a

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hospital. While the issue was not dispositive, the investigating officers found that there was some MSF-specific marking, but no internationally recognised symbols, and opined that, had it been so marked, it was possible the hospital would not have been engaged. Maurice Cotter – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

USFOR-AFGHANISTAN, Investigation Report of the Airstrike on the Médecins Sans Frontières / Doctors Without Borders Trauma Center in Kunduz, Afghanistan on 3 October 2015, pp. 2, 46–47.

Martens Clause. The Martens Clause, introduced by Russian international lawyer and diplomat Fyodor Fyodorovich Martens at the 1899 Hague Peace Conference, found its way into Paragraph 9 of the Preamble of the 1899 Hague Convention (ii), as a compromise formulation to solve the disagreement that had sparked between a group of smaller States, headed by Belgium, and the great powers, in particular Germany and Russia. Belgium sought to limit the granting of extensive rights to occupying powers and objected to the proposed definition of combatants, which denied the right of civilians to armed resistance against their occupiers [see: Combatants; Civilians]. Belgium proposed to leave these matters to customary law, while Germany and Russia objected. The deadlock was finally broken by Martens, who introduced the following clause: “[u]ntil a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that, in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience”. The drafting history and the sentence following the Clause in the Preamble of the 1899 Hague Convention makes clear that Martens’ addition was meant to resolve the disagreement over the definition of lawful combatant. Today, the Clause permeates the entire body of ihl. Subsequently, the Clause was inserted verbatim or with slight modifications into other instruments, such as: (i) the Preamble of the 1907 Hague Convention (iv); (ii) the Preamble of the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare; (iii) Articles 63(4) gci, 62(4) gcii, 142(4) gciii, 158(4) gciv, and

Martens Clause

471

­Article 1(2) api; (iv) the Preamble of apii; and (v) the Preamble of the ccw. In modern versions of the Clause, the terminology “usages established between civilized nations” was replaced by “established custom”, whereas the concepts “laws of humanity, and the requirements of the public conscience” gave way to “principles of humanity” and “dictates of public conscience”. The icj declared the Martens Clause to be an “expression of the pre-­existing customary law” whose “continuing existence and applicability is not to be doubted” in 1996 [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, paras. 84, 87]. 1. Interpretation of the Martens Clause Meron equates “principles of humanity” with “elementary considerations of humanity” and accepts “dictates of public conscience” to relate to “public opinion” or opinio iuris [T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, 94 ajil (2000), pp. 82–83]. Cassese proposes to deduce the “standards of humanity” from international human rights standards and the “demands of public conscience” from “resolutions and other authoritative acts of representative international bodies” [A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’, 11 ejil (2000), p. 212]. The Clause is considered to serve three different functions, which are not mutually exclusive. First, the Clause is understood to rebut the a contrario argument that belligerents are free in their conduct of hostilities unless something is expressly prohibited by treaty law. The Clause prevents such claims and binds the belligerents’ actions to conform to “principles of humanity” and “dictates of public conscience”. Second, the Martens Clause may be seen as an interpretative guideline dictating that the interpretation of ihl rules be consistent with the “principles of humanity” and “dictates of public conscience”. This yardstick assists in the concretization of ambiguous rules and allows ihl to adapt to new developments in the field of warfare and weaponry. Third, the Clause has created a separate source of law alongside treaty law and customary law [art. 38(1) icj Statute]. In this context, it is also argued that the Martens Clause has an “indirect impact” on the sources and the process of norm-creation. Considering that it puts the “principles of humanity” and “dictates of public conscience” on par with “established custom”, for the purposes of ihl a principle derived from either of the two former concepts may not necessarily require proof of State practice, thus elevating the element of opinio iuris to a “rank higher than normally admitted” [Cassese, p. 214].

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Martens Clause

2. Reception in International Jurisprudence In the Krupp case, the U.S. Military Tribunal, when rejecting the defence argument that the 1907 Hague Regulations were inapplicable in times of “total war”, clarified that these Regulations not only were applicable as treaty law, but they had become customary law, binding Germany. The judges’ subsequent reference to the Martens Clause was merely made in an effort to bolster their reasoning, since, as they admitted, the law was clear and reference to general principles was not necessary. [Judgment, Krupp et al., U.S. Military Tribunal, p. 133]. The icj declared the applicability of ihl principles and rules to the use of nuclear weapons, inter alia, as a result of the Martens Clause. It also held that the Clause pertains to two cardinal principles of ihl, namely the protection of civilians and civilian objects and the prohibition to cause unnecessary suffering [Legality of the Threat or Use of Nuclear Weapons, paras. 78, 87; see: Civilians; Civilian Objects; Superfluous Injury and Unnecessary Suffering]. In the Furundžija case, an icty Trial Chamber made a cursory reference to the Martens Clause when discussing the existence of the prohibition of torture under customary law [Judgment, Furundžija, icty, Trial Chamber, para. 137; see: Torture]. In the Kupreškić case, the judges confirmed the customary nature of the prohibition of reprisals against civilians, as enshrined in Article 51(6) api. They also established the conditions under which belligerent reprisals could lawfully be invoked, including the requirement that they comply with “elementary considerations of humanity” [Judgment, Kupreškić et al., icty, Trial Chamber, para. 535; see: Reprisals against Civilians]. They further discussed whether this principle had transformed into a general rule, binding States non-parties to api, and opined that in this regard the Martens Clause had triggered the emergence of a principle of ihl “even where State practice is scant or inconsistent” [Kupreškić et al., paras. 527, 531]. Finally, that Trial Chamber also espoused its views on the interpretative function of the Martens Clause holding that it “[…] enjoins, as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the scope and purport of the rule must be defined with reference to those principles and dictates” [Kupreškić et al., para. 525]. The Martić Trial Chamber followed the previous Kupreškić findings on belligerent reprisals, and added that the condition to comply with the “laws of humanity and dictates of public conscience” meant “that reprisals must be exercised to the extent possible, in keeping with the principle of the protection of the civilian population in armed conflict and the general prohibition of targeting civilians” [Judgment, Martić, icty, Trial Chamber, para. 467].

Medical Aircrafts

473

Lastly, icc Trial Chamber vi in the Ntaganda case recalled the Martens Clause when holding that the war crime provisions of rape and sexual slavery protected also members of an armed group, in addition to civilians and persons hors de combat [Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9, Ntaganda, icc, Trial Chamber vi, para. 47]. However, the Appeals Chamber later rejected reference to the Clause since, in conformity with Article 21(1)(a) icc Statute, a literal and contextual interpretation of the relevant provisions of the icc Statute alone sufficed to resolve the question of their applicability. Eleni Chaitidou – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ 11(1) ejil (2000). R. Giladi, ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’, 25(3) ejil (2014). J. Kross, Professor Martens’ Departure (1995). T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, 94(1) ajil (2000). V.V. Pustogarov, ‘The Martens Clause in International Law’, 1(2) Journal of History of International Law (1999).

Means of Warfare; see: Hostilities, Conduct of Medical Aircrafts. Medical aircrafts that fall within the definition of medical transports [see: Medical Transports] are protected objects under ihl and therefore must be respected and protected when carrying out their medical function [art. 36 gci; art. 24 api]. The evacuation of the wounded and sick by air has grown to become a key medical function in military operations [see: Wounded and Sick]. Consequently, the rules conferring protection on medical aircrafts have been strengthened since 1949. Today, we look beyond the GCs and APs to understand the definition of medical aircraft and the protections that term invokes. The Program on Humanitarian Policy and Conflict Research’s 2009 Manual on International Law Applicable to Air and Missile Warfare (hpcr Manual) is one example of this expansion of the rules and is recognised as an authoritative restatement of ihl, as it relates to air and missile warfare [2016 icrc Commentary gci, para. 2426]. The hpcr Manual defines “medical aircraft” as any aircraft, ­including planes, airships, and helicopters, that are “­permanently or

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Medical Aircrafts

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

L. Doswald-Beck, ‘The Protection of Medical Aircraft in International Law’, 27 Israel Yearbook on Human Rights (1997). Harvard Program on Humanitarian Policy and Conflict Research, ‘Manual on International Law Applicable to Air and Missile Warfare’ (2009).

Medical Equipment

475

Medical Equipment. ihl establishes comprehensive and detailed protection for medical personnel [see: Medical Personnel], medical units [see: Medical Units and Establishments], medical transports [see: Medical Transports], and medical material. Under the rules on the conduct of hostilities, medical objects are to be considered civilian objects. In particular, they must be respected and protected at all times by belligerents and are not to be the object of attack. State practice evidences that this is a rule of customary international law [rule 30 icrc Customary ihl Study]. Furthermore, under the icc Statute, intentionally directing attacks against medical material constitutes a war crime in both ­international and non-international armed conflicts [art. 8(2)(b)(xxiv), 8(2)(e)(ii)]. gci specifies that “the material of mobile medical units of the armed forces which fall into the hands of the enemy, shall be reserved for the care of wounded and sick” [art. 33(1) gci]. This provision constitutes an exception to the basic principle of international law that establishes an entitlement for belligerents to take and freely use any movable public property, belonging to the enemy and captured on the battlefield, as booty of war [2016 icrc Commentary gci, para. 2329; see: Requisitions]. Conversely, such a limitation does not apply to fixed medical establishments, whose buildings, material, and stores, fallen into enemy hands, remain subject to the laws of war [art. 33(2) gci; see also: art. 28 gcii]. Practically, this means that materials and stores of fixed establishments, being movable property, may be appropriated by the capturing power; buildings, on the other hand, being real property, can be used and administered by the party in whose hands they have fallen, but not captured as booty of war [2016 icrc Commentary gci, para. 2334]. The buildings, material, and stores of fixed medical establishments are subject to a different limitation: they cannot be diverted from their purpose, if they are necessary for the care of the wounded and sick [art. 33(2) gci; 2016 icrc Commentary gci, para. 2335]. Nevertheless, contrary to what is provided for in relation to mobile medical units, the humanitarian aim of this rule is subject to the principle of urgent military necessity [see: Military Necessity]. This entails that the enemy can make use of these medical facilities for other purposes. However, before resorting to such an extreme measure, alternative arrangements must be made for the welfare of the wounded and sick who are nursed therein [art. 33(2) gci; 2016 icrc Commentary gci, para. 2335]. This paragraph reflects the ­cruel reality of war and, in the existing tension between military exigencies and h ­ umanitarian considerations, it constitutes a “via media” between two forces opposing each other [1952 icrc Commentary gci, p. 275].

476

Medical Equipment

Article 33(3) gci further specifies that the material and stores of mobile and fixed medical establishments must not be intentionally destroyed. This provision clearly exceeds a mere obligation to protect: it aims at discouraging those holding such objects from destroying them as a precautionary measure to prevent an enemy takeover. In this regard, it should be noted that “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” constitutes a grave breach under Articles 50 gci, 51 gcii and 147 gciv [see: Grave Breaches; Property, Destruction and Appropriation/Seizure of]. Article 57 gciv forbids the requisitioning of the material and stores of civilian hospitals so long as they are necessary for the needs of the civilian population [see: Hospitals], whereas Article 14 api, whose purpose it is to complete the provisions contained in Article 57 gciv, regulates the requisition of civilian medical units in occupied territories. In particular, Article 14 api requires the occupying power to ensure that the medical needs of the population continue to be satisfied. Accordingly, it prohibits the requisitioning of civilian medical units, their equipment (whether this includes medical equipment, such as operating tables, or functional equipment, such as the heating system or the kitchen), as well as their matériel (such as surgical instruments) or the services of their personnel, so long as these resources are necessary for the provision of adequate medical services [art. 14(2) api; 1987 icrc Commentary api, para. 587]. However, provided that the general rule in paragraph 2 continues to be observed, paragraph 3 allows these resources to be requisitioned if: (i) they are necessary for the adequate and immediate treatment of the wounded and sick members of the armed forces of the ­occupying power, or of prisoners of war; (ii) such necessity still exists; (iii) arrangements are made to ensure that the medical needs of the civilian population, as well as those of any wounded and sick under treatment, continue to be satisfied. Medical objects may lose their specific protection in case they are used to commit acts harmful to the enemy, outside their humanitarian function [art 21 gci; art. 34 gcii; art. 13 api; art. 11 apii; rules 28–29 icrc Customary ihl Study; see: Acts Harmful to the Enemy]. Although the term “acts harmful to the enemy” is not defined in treaty law, the icrc is of the view that the loss of protection would not necessarily turn medical objects into military objectives. Indeed, it is argued that not all forms of acts harmful to the enemies would make an effective contribution to military action, and an attack against them would not necessarily offer a definite military advantage [icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2015), pp. 32–33].

Medical or Scientific Experiments

477

Federica Pira – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

P. de Waard, J. Tarrant, ‘Protection of Military Medical Personnel in Armed Conflicts’, 35(1) uwa Law Review (2010). unsc, Resolution 2286 (2016) on Protection of the Wounded and Sick, Medical Personnel and Humanitarian Personnel in Armed Conflict, S/RES/2286 (2016).

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

478

Medical or Scientific Experiments

incorporated in what became known as the Nuremberg Code. In this respect, neither the GCs nor the APs define the concept of “biological experiments”. According to the icrc, in its ordinary meaning, the term refers to conduct whose purpose it is “to study the effects, at that time unknown, of a product or a situation on the human body” [2016 icrc Commentary gci, para. 1414; 2017 icrc Commentary gcii, para. 1459]. Conducting “biological experiments” on protected persons is included among the grave breaches of the GCs [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv; see: Grave Breaches] and constitutes a war crime under Article 8(2)(a)(ii) icc Statute and Article 2(b) icty Statute. Furthermore, according to the icc Statute, subjecting persons who are in the power of another party to the conflict to “medical or scientific experiments of any kind, which are neither justified by the medical, dental or hospital treatment of the person concerned, nor carried out in his or her interest, and which cause death or seriously endanger the health of such person or persons” constitutes a war crime in both international and non-international armed conflicts [art. 8(2)(b)(x), 8(2)(e)(xi) icc Statute]. Most international instruments, official statements, and case-law relating to war crimes are silent as to whether the prohibition of medical or scientific experiments is absolute or subject to exceptions, in particular if the detained person consented to the procedure [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law (2005), p. 322]. The issue was discussed during the negotiations of the icc Elements of Crimes and the conference reached the conclusion that the proscription was absolute [fn. 46, 69 icc Elements of Crimes]. Article 7 iccpr expressly establishes the prohibition as non-derogable. Accordingly, the hrc has specified that “special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment” [hrc, General Comment No. 20: Article 7 (1992), para. 7]. Likewise, the unga, in its Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, forbids any medical or scientific experimentation which may be detrimental to health, even with the detainee’s consent [unga, Resolution 43/173 (1988), Principle 22]. In this regard, the icrc updated Commentaries are crystal clear: unless the treatment is justified by therapeutic purposes or clinical research, the prohibition is absolute, as wounded, sick, shipwrecked, or detained persons cannot validly give consent to any particular experiment [2016 icrc Commentary gci, para. 1416; 2017 icrc Commentary gcii, para. 1461]. Federica Pira – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

Medical Personnel

479

Bibliography

Judgment, usa vs. Karl Brandt et al., Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 , Vol. ii, pp. 171–300. S. Mehring, ‘Medical War Crimes’, 15 Max Planck Yearbook of United Nations Law (2011).

Medical Personnel. Personnel assigned exclusively to medical duties must be respected and protected in all circumstances. Directing attacks against such personnel is a serious violation of ihl and is punishable under international criminal law. The amelioration of the condition of the wounded, sick and shipwrecked [see: Wounded and Sick; Shipwrecked] is a key objective of gci and gcii. To effectively safeguard this objective, ihl extends protections to the medical personnel that come to their aid, thereby ensuring that those injured are collected from the battlefield and treated humanely and impartially. It was Henry Dunant, so moved by his experience following the Battle of Solferino, who first inspired this notion of protection [see: Dunant, Henry]. The expression “medical personnel” is defined as military or civilian persons who have been exclusively assigned to a specific medical purpose [art. 8(c) api]. This purpose may include the collection, transportation, diagnosis, or treatment of the wounded, sick, and shipwrecked; the prevention of disease; or the administration of medical units or medical transports [art. 8(e) api]. Permanent and temporary assignments are included in this definition, though this difference does not affect the protected status of those assigned, provided that their duties are of an exclusively medical nature. Permanent medical personnel, by their character, are exclusively assigned to a medical purpose “for an indeterminate period” [art. 8(k) api], for instance, members of the armed forces assigned to serve as Medical Officers. The protection of temporary medical personnel, such as auxiliary stretcher-bearers, however, commences only when those persons take up assignments that are exclusively devoted to medical purposes, and only for so long as that function remains exclusively medical. Medical personnel can be classified into a number of categories: (i) military; (ii) civilian; (iii) medical personnel of National Red Cross or Red Crescent Societies or of other duly recognised and authorised voluntary aid societies; and (iv) medical personnel made available to a party to the conflict by a neutral third State, or a recognised and authorised aid society of such State, or an impartial international humanitarian organisation [arts. 24–27 gci; arts. 36–37 gcii; art. 20 gciv; arts. 8(c), 9(2) api]. Medical personnel are protected by the

480

Medical Personnel

distinctive emblems, but will not lose their protected status should they fail to display it [see: Emblem]. The obligation to respect and protect medical personnel is a well-­established principle in ihl having first appeared, in essence, in Article 2 of the 1864 Geneva Convention. Since then, treaty law has made it clear that all medical personnel must be respected and protected in armed conflict [arts. 24–25 gci; arts. 36–37 gcii; art. 15 api; art. 9 apii], and State practice has established this rule as a norm of customary international law [rule 25 icrc Customary ihl Study]. It has also been enshrined in international criminal law [art. 8(2)(b) (xxiv), 8(2)(e)(ii) icc Statute]. The obligation itself invokes dual duties: a negative duty to respect, that is to say, “to refrain from engaging in certain types of behaviour, such as attacks, vis-à-vis the protected persons”, and a positive duty to protect, that is, “to take certain steps to the benefit of those persons, such as reacting against third parties seeking to interfere with their ability to carry out their work” [2016 icrc Commentary gci, para. 1984]. There is no checklist against which one can verify the legality of an act or measure. However, at a minimum, the obligation to respect and protect includes: (i) the prohibition against intentionally and directly attacking, killing, harming, kidnapping, threatening, intimidating, physically assaulting or arbitrarily arresting medical personnel [2016 icrc Commentary gci, para. 1987]; (ii) the protection from punishment for carrying out medical activities in line with medical ethics or from being compelled to perform medical activities that contravene medical rules and ethics [art. 16 api]; and (iii) the granting of access to civilian medical personnel to any areas where their services are essential [art. 15(4) api]. This obligation applies in all circumstances, but there are instances in which protection will cease, namely, if medical personnel commit acts “harmful to the enemy” and “outside their humanitarian duties” [arts. 21–22 gci; art. 13 api; art. 11 apii; rule 25 icrc Customary ihl Study; see: Acts Harmful to the Enemy]. Captured medical personnel are not prisoners of war [see: Prisoners of War], but will benefit, as a minimum, from the same protection standards afforded under gciii [art. 28 gci]. Their return must be facilitated as quickly as possible, unless retention is temporarily required to meet the medical needs of detained prisoners of war [art. 30 gci]. There is no comparable legal requirement to return medical personnel in a non-international armed conflict [2016 icrc Commentary gci, para. 2155]. Temporary medical personnel shall be deemed prisoners of war upon capture, though they can be employed in their medical function [art. 29 gci]. The surge in violence against medical personnel in their line of work has become a common feature of modern-day conflict. Violence of this nature must never take place and organisations such as the

Medical Standards, Generally Accepted

481

International Red Cross and Red Crescent Movement are driving global initiatives like the Health Care in Danger project to address this concern. Fauve Kurnadi – the views expressed are those of the author alone and do not necessarily reflect the views of Australian Red Cross Bibliography

H. Durham, P. Wynn-Pope, ‘Protecting the “Helpers”: Humanitarians and Health Care Workers During Times of Armed Conflict’, 14 yihl (2011). J. Pictet, ‘The Medical Profession and International Humanitarian Law’, 25(247) irrc (1985).

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

482

Medical Transports

or other contextual factors. The obligation to act in compliance with generally accepted medical standards is, indeed, qualified by the explanation that the standards to be complied with are those that would be applied under similar medical circumstances to persons not deprived of liberty (who are also nationals of the party conducting the procedure in case of api). Medical procedures undertaken on persons in the power of a party other than the one on which they depend, and carried out below the benchmark of generally accepted medical standards, may amount to so-called “medical grave breaches” whenever they seriously endanger the physical or mental integrity of the person undergoing them [art. 11(4) api; see: Seriously Endangering the Physical or Mental Health or Integrity of Protected Persons]. Maria Giovanna Pietropaolo – the views expressed are those of the author alone and do not necessarily reflect the views of Diakonia Bibliography

A. Baccino-Astrada, Manual on the Rights and Duties of Medical Personnel in Armed Conflicts (1982). M.J. Gunn, H. McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, 3 Journal of Armed Conflict Law (1998). icrc, Health Care in Danger – The Responsibilities of Health-Care Personnel Working in Armed Conflicts and other Emergencies (2012). S. Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law (2013).

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

Medical Transports

483

The definition of “medical transports” in api is widely used in State practice and accepted as authoritative in both international and non-international armed conflicts [rule 29 icrc Customary ihl Study]. api classifies medical transports as “any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation under the control of a competent authority of a party to the conflict” [art. 8(g) api]. The intentional omission of an exhaustive list of modes of transportation ­ensures this provision covers all forms of medical transports and vehicles. Traditionally this has included ambulances, hospital ships and medical aircraft, but the definition also includes “automobiles, trucks, trains, motorcycles, small all-terrain vehicles and inland boats” [2016 icrc Commentary gci, para. 2372]. The breadth of the definition also ensures that transports not yet developed or employed, such as unmanned medical evacuation vehicles, can fall within the scope of protection. To qualify as “medical”, transports must be exclusive in their medical function for the period of their assignment. That is, they may not be used for a purpose other than for the “conveyance by land, water or air of the wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies protected by the Conventions and by [api]” [art. 8(f) api]. This exclusive purpose attaches to permanent and temporary medical transports. A permanent medical function suggests that the primary purpose of that transportation is its medical use, for instance ambulances displaying the distinctive emblems [see: Emblem], to which the obligation to protect and respect will extend indefinitely. Transports engaged in a temporary medical function are only protected for so long as that function remains exclusively medical, for instance a military vehicle assigned on a one-off basis to transport wounded combatants to a mobile medical unit. This temporary function must be distinguished from “mixed” transport missions, which do not invoke the obligation to respect and protect on account of simultaneous military and medical use and thus the absence of an exclusive medical function [2016 icrc Commentary gci, para. 2380]. The second criterion used to classify transports as “medical”, stipulates that transports must be placed under the control of a competent authority of a belligerent party, that is, the armed forces, a National Red Cross or Red Crescent Society or other duly recognised and authorised voluntary aid society. In order to emphasise the protective status of medical transports, belligerent parties should make every effort to mark them with the distinctive emblem for the duration of their permanent or temporary assignment, though there is no rule to this effect, nor is this practice necessary to confer protection.

484

Medical Transport Vessels

­ edical transports will lose their protection if they are used outside their exM clusively medical function to commit acts considered “harmful to the enemy” [see: Acts Harmful to the Enemy]. Fauve Kurnadi – the views expressed are those of the author alone and do not necessarily reflect the views of Australian Red Cross Bibliography

A. Cassese, ‘Under What Conditions May Belligerents Be Acquitted of the Crime of Attacking an Ambulance?’ 6(2) jicj (2008).

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

Medical Units and Establishments

485

is used to commit, “outside their humanitarian duties”, “acts harmful to the enemy” [see: Acts Harmful to the Enemy]. The notion of protecting hospital ships stemmed from their early recognition as neutral vessels under customary ihl [2017 icrc Commentary gcii, para. 1930]. Today, gcii invokes an obligation on parties to respect and protect hospital ships at all times, extending not only to the explicit prohibition of attacks against medical transport vessels, but also to ensuring they are not harmed or impeded in their humanitarian work either at sea or ashore. Fauve Kurnadi – the views expressed are those of the author alone and do not necessarily reflect the views of Australian Red Cross Bibliography

L. Doswald-Beck, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed Conflicts at Sea’, 65(1) British Yearbook of International Law (1995). D.L. Grimord, G.W. Riggs, ‘The Unique and Protected Status of Hospital Ships under the Law of Armed Conflict’, in R.B. Jaques (ed.), Issues in International Law and Military Operations (2006).

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

486

Medical Units and Establishments

search for, collection, transportation, diagnosis or treatment – including firstaid ­treatment – of the wounded, sick and shipwrecked, or for the prevention of disease” [art. 8(e) api]. This definition builds upon Article 19 gci and Article 18 gciv. The term “medical purposes”, which is stipulated in api and corresponds with the function of medical personnel prescribed in Article 24 gci, covers a broad ambit of activities, including evacuating the wounded, triage, surgery, psychological care, vaccinations, storing medicines or surgical instruments, and providing training with regard to communicable diseases [2016 icrc Commentary gci, paras. 1777–1782]. Consequently, the categories of medical units are also broad. They include hospitals and other similar units, blood transfusion centres, preventative medicine centres and institutes, medical depots, and the medical and pharmaceutical stores of such units [art. 8(e) api]. These units may be fixed or mobile, permanent or temporary – that is, either a securely positioned, immovable building or a non-fixed, mobile structure such as a demountable field hospital [art. 8(e) api] – but they must be exclusively assigned to a medical function, either for an indeterminate period or for limited periods during the whole of such periods [art. 8(k) api]. The scope of this protection extends to both military medical units and civilian medical units. To be classified as civilian, the unit must belong to a party to the conflict or be recognised and authorised by a competent authority of one of the parties [art. 12(2) api], or be made available to a party for humanitarian purposes by a neutral State, or a recognised and authorised aid society of such a State, or an impartial international humanitarian organisation [art. 9(2) api], or by the National Red Cross or Red Crescent Society of a neutral State [art. 27 gci]. Medical units that are not authorised do not lose their protected status, in accordance with the rules protecting civilian objects [see: Civilian Objects], but they will be prohibited from displaying the distinctive emblems [see: Emblem]. This obligation to respect and protect not only includes an explicit prohibition on attacking medical units – either directly or as a consequence of ­indiscriminate attacks [see: Indiscriminate Attacks] or attacks causing excessive incidental damage [see: Proportionality] – but also includes interfering with their function, intentionally destroying or plundering medical units, and seizing a medical unit for the purpose of storing weapons, establishing a military command, launching military operations or any other military purpose [2016 icrc Commentary gci, paras. 1799–1800]. Temporary use of a medical unit by armed forces for “legitimate purposes based on military necessity”, such as the interrogation or detention of wounded or sick military personnel would not likely contravene the obligation to respect and protect [2016 icrc

Mercenaries

487

­Commentary gci, para. 1801]. In further fulfilling this obligation, parties ought to take measures to ensure their medical units are situated at a safe distance from military objectives so that an attack on such objectives would not imperil their safety [art. 19 gci; art. 18 gciv; art. 12(4) api; see: Precautions, Passive]. Under no circumstances are medical units to be used to shield legitimate military objectives from attack [art. 12(4) api]. The special protection to which medical units and establishments are entitled will cease if they are used to commit, “outside their humanitarian duties”, “acts harmful to the enemy” [see: Acts Harmful to the Enemy]. Fauve Kurnadi – the views expressed are those of the author alone and do not necessarily reflect the views of Australian Red Cross Bibliography

icrc, Health Care in Danger Project.

Mercenaries. Mercenaries have existed for a long time. However, their regulation under international law is rather recent, since it arose during the second half of the twentieth century. With legal regulation, the term mercenary acquired a precise meaning under international law, although the label ­continues to be used in a more generic sense with regard to individuals who do not satisfy the legal definition. Article 47 api provides a narrow definition of mercenary that is based on six cumulative conditions focusing on mercenaries’ foreign character and their motivation, namely the “desire for private gain”. In addition, mercenaries must take direct part in hostilities [see: Direct Participation in Hostilities], as opposed to only being recruited for that purpose. The consequences attached to being a mercenary relate to their status under ihl. Mercenaries “shall not have a right to be a combatant or prisoner of war”, which, in turn, renders them liable to prosecution for mere participation in hostilities and acts that would be lawful if performed by combatants [see: Combatants; Prisoners of War]. However, States are not obliged to deny combatant or prisoner of war status to mercenaries [1987 icrc Commentary api, p. 575]. As there is no prisoner of war status in non-international armed conflict, there is no corresponding rule for mercenaries in apii. For the same reason, the customary ihl rule on mercenaries only applies in international armed conflicts [rule 108 icrc Customary ihl Study]. Article 47 api on mercenaries was included at the behest of the newly independent African States and socialist States [K. Fallah, ‘Corporate Actors: The Legal Status of Mercenaries in Armed Conflict’, 88(863) irrc (2006), p. 605].

488

Mercenaries

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

Merchant Vessels

489

There is widespread agreement that, notwithstanding their small differences, the definitions of mercenary are so narrow that it is virtually impossible to qualify an individual as such [S. Percy, ‘Mercenaries: Strong Norm, Weak Law’, 61(2) International Organization (2007), p. 367; Liu, pp. 151, 182]. Thus, private military and security contractors, while colloquially often described as modern mercenaries, notably to express disapproval, usually do not fulfil the definitional conditions [Working Group (2010), para. 38; see: Private Military and Security Companies]. Similarly, so-called foreign fighters, i.e. individuals who join insurgencies abroad, are not mercenaries, mainly due to the difference in motivation [see: Foreign Fighters]. Sandra Krähenmann – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

S. Chesterman, C. Lehnardt (eds.), From Mercenaries to Market. The Rise and Regulation of Private Military Companies (2007). K. Fallah, ‘Corporate Actors: The Legal Status of Mercenaries in Armed Conflict’, 88(863) irrc (2006). H.-Y. Liu, Law’s Impunity. Responsibility and the Modern Private Military Company (2015). S. Percy, ‘Mercenaries: Strong Norm, Weak Law’, 61(2) International Organization (2007). Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Submission A/HRC/WG.10/2/CRP.1 (2012). Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Report A/HRC/15/25 (2010).

Merchant Vessels. There is no universally accepted definition of merchant vessels under international law. Nevertheless, a possible definition can be inferred from the definitions of other types of ships under ihl. Accordingly, a merchant vessel is a ship exclusively employed for commercial or fishery purposes or for commercial transportation of passengers [e.g. art. 13(i) San Remo Manual]. A first attempt to codify the status of merchant vessels was made in 1907, with the adoption of the Hague Convention (vi) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities [arts. 1–5 Hague Convention vi] and the Hague Convention (vii) concerning the Situation of Merchant Vessels Converted into Warships [arts. 1–6 Hague Convention vii].

490

Merchant Vessels

gcii, on the other hand, does not refer to neutral or enemy merchant ships, but to merchant vessels that are transformed into hospitals and, accordingly, cannot be devoted to any other use throughout the duration of the hostilities [art. 33 gcii; see: Hospital Ships]. The rationale of this prohibition is “to prevent a merchant vessel from assuming the status of a hospital ship to cross a danger zone or break through a blockade [without being captured], and then transforming back to its original purpose to resume its original course in complete safety” [2017 icrc Commentary gcii, para. 2338]. It follows that, although Article 33 gcii “seems to apply equally to enemy and neutral merchant vessels”, it only refers to enemy vessels, as neutral merchant ships may only be captured under certain conditions [art. 146 San Remo Manual] and, consequently, no risk of abuse really exists in this case [2017 icrc Commentary gcii, para. 2346]. In this regard, the 1994 San Remo Manual draws a clear distinction between the applicable law for enemy merchant vessels and neutral merchant vessels [arts. 59–61, 67–69 San Remo Manual]. In particular, an enemy vessel may only be attacked if its activities render it a military objective by: engaging in belligerent acts on behalf of the enemy; acting as an auxiliary to the enemy armed forces; being incorporated into or assisting the enemy’s intelligence system; sailing under convoy of enemy warships; refusing an order to stop; resisting visit, search or capture by warships outside neutral waters; being armed to an extent that damage could be inflicted on a warship; or otherwise making an effective contribution to the military action [arts. 59–60 San Remo Manual]. Furthermore, subject to the provisions of article 136, and without prior visit and search, an enemy vessel may be c­ aptured and its goods may be requisitioned and confiscated by belligerent warships even when such goods are not contraband [art. 135 San Remo Manual]. Neutral merchant vessels may also constitute military objectives and be attacked or requisitioned by belligerent warships under certain conditions, namely when they: are believed on reasonable grounds to be carrying contraband or breaching a blockade and, after prior warning, they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture; engage in belligerent acts on behalf of the enemy; act as auxiliaries to the enemy armed forces; sail in a convoy with enemy warships; are incorporated into or assist the enemy’s intelligence system; otherwise make an effective contribution to the enemy military action or engage in any other activities which may render them military objectives [art. 67 San Remo Manual; see: Military Objectives]. In addition to the above circumstances, neutral merchant vessels are subject to capture when it is determined that the conditions described in

Military Commissions

491

Article 146 San Remo Manual are satisfied. Their goods may, however, be confiscated only if they are contraband. During an international armed conflict at sea, belligerent warships are entitled to visit and search merchant vessels outside neutral waters, where there are reasonable grounds for suspecting that they are subject to capture [art. 118 San Remo Manual]. Neutral merchant vessels may, however, be exempt from the exercise of the right of visit and search if they accept to be diverted from their declared destination, or if the conditions set forth in Article 120 San Remo Manual are met [arts. 119–120 San Remo Manual]. Furthermore, merchant v­ essels may be captured if they are believed on reasonable grounds to be breaching a blockade and they may also be attacked if, after prior ­warning, they clearly resist such capture [art. 98 San Remo Manual; see: Blockade]. Jacopo Terrosi – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

L. Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (2005), pp. 187–189. W. Heintschel von Heinegg, ‘The Law of Armed Conflict at Sea’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2008), pp. 479–480, 499–513. N. Ronzitti, Diritto Internazionale dei Conflitti Armati (2014), pp. 250.

Methods of Warfare; see: Hostilities, Conduct of Military Commissions. A military commission is a particular type of military tribunal, a general term that describes military proceedings of a judicial nature. Military commissions are distinct from courts martial, which try offences committed by members of the armed forces against a State’s military criminal code. Courts martial are governed by strict rules of procedure and evidence. Military commissions, by contrast, are wartime tribunals that try captured enemies for violations of the laws and customs of war. Since military commissions are designed to dispense justice in a utilitarian fashion, in the field of war, they are governed by simple, less exacting rules of procedure and evidentiary standards. The most prominent example of the use of military commissions is by the U.S. Military commissions began as a disciplinary tribunal for Union soldiers. This usage significantly expanded during the Civil War to allow the prosecution of enemy law-of-war violators, both civilians and combatants. Military

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commissions were widely used in the aftermath of World War ii, conducted under Control Council Law No. 10 by the Allied States. The subject matter was restricted to violations of the laws and customs of war and the personal jurisdiction was limited to enemy fighters. The use of military commissions ­became widely accepted at that time. Following the terrorist attacks of 11 September 2001, the U.S. resorted to the use of military commissions to try Al ­Qaeda members and their associates. These military commissions were set up “to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission” [para. 948b(a) Military Commissions Act (mca) of 2006; see: Combatants]. 1. Fair Trial Rights ihl requires fair trial standards to be applied to all types of courts, including military commissions. In situations of non-international armed conflict, Common Article 3 GCs requires “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people”. The Supreme Court of the United States has determined that this rule governs military commissions [Judgment, Hamdan v. Rumsfeld, U.S. Supreme Court; see: Fair Trial]. While neither ihl nor ihrl prohibit the use of military commissions, there are often problems in the application of fair trial rights in these types of proceedings. Some of the fair trial rights that are put under particular strain by the use of military commissions are the following: (i) independence and impartiality, since military commissions are set up within the military system, which is itself controlled by the executive organ; and (ii) the admission of evidence by coercion or hearsay evidence and restrictions on access to evidence and lawyers (equality of arms). Indeed, the use of military commissions often entails a disproportionate aggregation of resources between the prosecution and the defence, as shown by the practice of the U.S. in prosecuting individuals under the 2006 mca. 2. Use of Military Commissions for Trying Civilians While military commissions are normally used to try military personnel, ihl does not completely preclude the use of military courts to try civilians during armed conflict, so long as the court is independent and impartial and abides by fair trial guarantees. However, there is increasingly a trend to limit, if not exclude, the criminal jurisdiction of military tribunals over civilians. The Draft Principles Governing the Administration of Justice through Military Tribunals state that: “[m]ilitary courts should, in principle, have no jurisdiction to try

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civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts” [Commission on Human Rights, Report of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights – Emmanuel Decaux, paras. 20–21]. 3. Military Commissions Practice Post 9/11 Following the 11 September 2001 terrorist attacks in the U.S., the then President George W. Bush issued a Military Order that established military commissions for the purpose of bringing Al Qaeda members and their associates to justice [U.S. President, Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism (2001)]. However, the U.S. Supreme Court found that the President was not authorised to establish military commissions; that Common Article 3 GCs applied to the armed conflict between the United States and Al Qaeda; and that the procedures of the military commissions violated provisions of the Uniform Code of Military Justice and the GCs [Judgment, Hamdan v. Rumsfeld, U.S. Supreme Court]. The US Congress responded by passing the 2006 mca, which authorised military commissions and stated that the procedures were in compliance with Common Article 3 GCs’ requirements of “regularly constituted courts”. The Manual for Military Commissions of 19 January 2007, which set out guidelines for trials by military commissions at Guantánamo Bay, Cuba and other detention sites, guaranteed some fair trial rights, but still raised major concerns, in particular, with respect to evidence adduced by torture or ­ill-­treatment. In 2008, the US Supreme Court held that the 2006 mca was unconstitutional as it restricted detainees’ use of habeas corpus and access to the federal courts [Judgment, Boumediene v. Bush, U.S. Supreme Court]. The Obama administration sought to improve the fair trial aspects of military commissions, and the Congress in October 2009 enacted the Military Commissions Act (2009 mca). The 2009 mca grants jurisdiction over “unprivileged enemy belligerents” (rather than “unlawful enemy belligerents”). Unlike its predecessor, the 2009 mca does not bar invocation of rights under the GCs (except for private rights of action). There are some improvements in terms of fair trial rights, such as the process for handling classified information. However, a number of problematic areas remain, including the lack of a timeline for notifying the defendant of charges against him, a presumption of admissibility of hearsay evidence, and the possibility to convict for ex post facto crimes, such as “material support for terrorism”, which did not exist at the time the conduct occurred or crimes that are not part of the laws and customs of war such as “conspiracy”.

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Although the Obama administration initially agreed to start allowing civilian federal courts to try terrorist suspects who had been detained in Guantanamo Bay, this move was blocked by Congress, and resort was again made to military commissions despite continued criticism of their procedural and substantive flaws in the fair trial protections of ihl and other applicable law. Yasmin Naqvi – the views expressed are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general Bibliography

G.D. Solis, ‘Contemporary Law of War and Military Commissions’, in F. Ní Aoláin, O. Gross (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (2013). J. Stewart, ‘The Military Commissions Act’s Inconsistency with the Geneva Conventions: An Overview’, 5(1) jicj (2007), p. 26. D. Vagts, ‘Terrorism and Military Trials’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014). D.S. Weissbrodt, J.C. Hansen, ‘The Right to Fair Trial in an Extraordinary Court’, in F. Ní Aoláin, O. Gross (eds.), Guantánamo and Beyond: Exceptional Courts and ­Military Commissions in Comparative Perspective (2013).

Military Manuals. Military manuals are a guide on how to implement the rules and regulations applicable to the military. The obligation to disseminate ihl aims at its effective application and consequently the protection of the victims of armed conflicts. The 1949 GCs [art. 47 gci; art. 48 gcii; arts. 41, 127 gciii; arts. 99, 144 gciv], as well as the 1977 APs [arts. 80, 82–83, 87 api; art. 19 apii], contain an obligation for the parties to armed conflicts to take appropriate measures to disseminate the text of these treaties [see: Dissemination]. This implies that the parties’ armed forces need to be trained as to the ihl principles and the behaviour that is expected or prohibited at their level in the command structure [A.R. Ziegler, S. Wehrenberg, ‘Domestic Implementation’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015), p. 654]. Military manuals constitute indeed a tool for the dissemination of ihl by the parties to armed conflicts. This is the result of the commitment made in the aforementioned treaties to respect and ensure respect for the rules they contain [Common Article 1]. To be effective, the dissemination of ihl also has to take place in peacetime: “[j]ust as the preparations for the military and economic aspects of a possible armed

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conflict are made in peacetime, so must the groundwork for the ­humanitarian aspects, in particular respect for ihl, be laid before war breaks out” [M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), p. 356]. Military manuals are not only used by States, but also by non-State armed groups [see: Armed Groups]. Despite fulfilling the same objective and including the same types of rules, they are normally referred to as “Codes of Conduct”. A number of these non-State entities have resorted to these tools in order to promote “standard military behaviour at the tactical, operational, and strategic levels”. Although they are usually aimed at leaders, military manuals may also have a direct influence on the behaviour of all group members [O. Bangerter, Internal Control – Codes of Conduct within Insurgent Armed Groups (2012), p. 21]. The 2005 icrc Customary ihl Study has recognized that the obligation to disseminate ihl is a norm of customary international law for both States and non-State armed groups [rule 142 icrc Customary ihl Study]. Also, military manuals have served as a source to identify customary ihl. Generally, when identifying this regime, the icrc has resorted to the elements contained in Article 38 of the icj Statute [see: Customary International ­Humanitarian Law]. Since military manuals include instructions by States regulating their soldiers’ behaviours, they have been used in the icrc Customary ihl Study to identify “general practice” [J-M. Henckaerts, L. DoswaldBeck (eds.), Customary International Humanitarian Law (2005), at li-lii]. For instance, when addressing the customary obligation of commanders to ensure that members of the armed forces under their command are aware of their ihl obligations, the icrc relies on the military manuals of Australia, Belgium, Benin, Cameroon, Canada, Colombia, and Switzerland, among many others. Certain military manuals have gone further than merely stating the applicable law. The United Kingdom Manual of the Law of Armed Conflicts of 2004, for instance, considered that the word “law” in Article 6(2) apii “could also be wide enough to cover ‘laws’ passed by an insurgent authority” [United Kingdom Military Manual (2004), p. 404, fn. 94]. Although a significant study of States’ military manuals has been conducted, particularly through their inclusion in the 2005 Customary ihl Study, nonState armed groups’ codes have not received enough attention. Geneva Call, a Swiss ngo that advocates for a humanitarian engagement with these entities, has been proactively compiling these on their public website. A thorough analysis of their content could contribute to exploring their practices with the aim of generating respect for the law during armed conflicts. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call

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Bibliography

A. Bangerter, Internal Control – Codes of Conduct within Insurgent Armed Groups (2012). J.-M. Henckaerts, L. Doswald-Beck (eds.), Customary International Humanitarian Law, Vol. i (2005). E. Mikos-Skuza, ‘Dissemination of the Conventions, Including in Time of Armed Conflict’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). A.R. Ziegler, S. Wehrenberg, ‘Domestic Implementation’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).

Military Necessity. This is one of the general principles of ihl – and thus one of the dynamic forces which drives and informs the development of the positive rules of ihl expressed in treaty and custom [see: International Humanitarian Law, General Principles of]. The principle of military necessity is not inconsistent with such rules. Indeed, it acknowledges that military efficiency can be reconciled with appropriate limits on the use of force. Military force must always serve an extrinsic purpose; it is not an end in itself. Hence, military necessity is more than military convenience, and parties to an armed conflict do not have unfettered discretion in the means and methods of war which they adopt [art. 22 Hague Regulations; art. 35 api]. The modern conception of military necessity crystallised in sources including the Lieber Code of 1863, the Preamble to the St. Petersburg Declaration of 1868 [see: Saint Petersburg Declaration (1868)], and the post-Second World War jurisprudence [e.g. Judgment, List et al. (Hostages case), US Military Tribunal in Nuremberg, pp. 1253–1254]. It emphasises that the object of conflict is to compel the complete or partial submission of the enemy, and that this may be achieved by the use of such lawful force necessary to achieve that efficiently. The full implications of the principle are conveniently encapsulated in four precepts: (i) military force can and must be controlled; (ii) military force may not violate the law; (iii) military force is legitimate if it complies with the law and is necessary to compel the submission of the enemy, as fast and economically as possible; (iv) military force is unlawful and illegitimate if it is unnecessary to compel the submission of the enemy [UK Ministry of Defence, Manual of the Law of Armed Conflict, para. 2.2.1]. It follows that military necessity is never an absolute justification for military conduct (so-called kriegsraison). Continuing debate about military necessity – and the potential for confusion – arises not so much from its definition, but the precise nature and extent of its relationship (as a general principle) with the positive rules of ihl.

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Within these rules, the concept of military necessity has been ascribed a largely negative function, justifying certain narrow forms of conduct which otherwise are prohibited. Yet, a number of commentators have also urged a broader positive function for military necessity. In short, it has been interpreted as a specific rule which limits all military force not only to conduct which is not legally prohibited, but also to conduct which is concretely required by military necessity. For example, in the classic view, a combatant is liable to lawful attack by the adverse party at any time, whether they are on the front lines or a thousand miles from the theatre of conflict. But, under the broader view of military necessity, the adverse party in this circumstance would not be entirely free to attack the combatant, but may only do so if this would be “necessary” to compel the submission of the enemy [e.g. N. Melzer, Targeted Killing in International Law (2008), pp. 286–289, 297–298; see: Targeted Killing]. Notwithstanding its moral force, and possible desirability as a matter of policy, this view goes beyond the present state of the law [e.g. N. Hayashi, ‘Basic Principles’, in R. Liivoja, T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (2016), pp. 91–92, 102–103; M.N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, 50(4) Va. J. Int’l L. (2010), pp. 834–835]. In particular, it is challenged by the very existence of the complex web of rules regulating the conduct of hostilities (which, in their creation, were already influenced by the principle of military necessity) and which make no clear mention of this additional condition upon launching an attack [see: Hostilities, Conduct of]. Moreover, this idea of military necessity would tend to condition the legality of an attack on a relative assessment of alternative courses of conduct, ex ante, to determine which is the more efficient (“necessary”) use of force. It is true that, in practice, combatants will likely make such assessments as a routine matter of professionalism and pragmatism, and are legally bound to do so when there is a risk of civilian harm or the destruction of enemy property [see: Indiscriminate Attacks; Proportionality]. However, it is hard to say that, at present, it is generally required, as a matter of black letter law. Most certainly, attacks which are not in this sense “necessary”, but which otherwise comply with the positive rules of distinction and proportionality, do not attract individual responsibility as war crimes [see: Individual Criminal Responsibility; War Crimes]. The negative function of military necessity in the existing rules of ihl, and the elements of war crimes, is clearly and exhaustively defined. Thus, enemy property may be destroyed or seized only if it is “imperatively demanded by the necessities of war” [art. 23(g) Hague Regulations; arts. 53, 147 gciv; see: Property, Destruction and Appropriation/Seizure of], and the civilian population may be forcibly evacuated only when required by military necessity, among

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other conditions [art. 49 gciv; art. 17 apii; see: Deportation or Transfer of Civilians]. International criminal law treaties reflect the same approach [arts. 7(1)(d), 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(e)(viii), 8(2)(e)(xii) icc Statute]. Correspondingly, in international criminal law, military necessity is a negative element: in order to establish certain war crimes, where expressly required, the Prosecution must prove beyond reasonable doubt that military necessity did not justify the relevant conduct [Judgement, Kordić and Čerkez, icty, ­Appeals Chamber, paras. 429, 466, 495, 503]. This may be assessed by consideration of factors such as the relationship between the relevant conduct and the legitimate aims of the party to the conflict to which the actor belongs; the actor’s knowledge and capacities; and the existence of reasonable alternatives [N. Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, 28(1) B.U. Int’l L.J. (2010), pp. 62–101]. Military necessity must be assessed in the circumstances prevailing at the relevant time, as known to the relevant actor(s). Although it seems likely that some threshold assessment may be made of the objective “reasonableness” of the relevant conduct [Hostages case, p. 1296; Judgment, Von Lewinski (called Von Manstein), Annual Digest and Reports of Public International Law Cases (1949), p. 522], judges may afford a considerable margin of appreciation in these matters (not least due to the criminal burden and standard of proof). Military necessity is thus not a defence, even for those limited crimes to which it applies. Nor, a fortiori, is it a general justification or defence for war crimes. This has long been established. Specifically, military necessity does not “justify a violation of positive rules” of international law, whose prohibitions “are superior to […] military necessities of the most urgent nature, except where the [Hague] Regulations themselves specifically provide the contrary” [Hostages case, pp. 1256, 1296 (emphasis added); see also: Von Manstein, pp.  512–513]. ­Military necessity must likewise be distinguished from the criminal law concept of “necessity”, which is a general defence in international criminal law provided that the unlawful conduct is the only reasonable means to avert an imminent and greater harm [Judgement, Hadžihasanović, icty, Trial Chamber, para. 53; see also: art. 31(3)(d) icc Statute]. Under the icc Statute, it is also important to distinguish military necessity from self-defence, which in the context of war crimes allows for certain proportionate conduct in the defence of objects vital to a military mission [art. 31(3)(c) icc Statute]. Finally, military necessity in international criminal law should also be distinguished from the concept of military objective [see: Military Objectives]. Whereas these two concepts contain some similar assessments (especially considerations of military advantage), and both operate as negative elements of war crimes, they operate with different scope [see Hayashi (2016), p. 92].

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In particular, military necessity entails an overall assessment of an actor’s behaviour, rather than merely the character of the object of attack, and is thus a more demanding standard. Consequently, it may be technically possible for enemy property to be lawfully targeted (i.e. the property is a military objective [art. 8(2)(b)(ii) icc Statute]) but, nonetheless, still potentially to result in a war crime, if it is destroyed and the destruction is not militarily necessary [e.g. art. 8(2)(b)(xiii) icc Statute; see Judgment, Brđanin, icty, Appeals Chamber, paras. 337, 341; Judgment, Karadžić, icty, Trial Chamber, para. 533]. Such conceptual distinctions may become significant in further defining attacks on cultural property, both under the icc Statute [art. 8(2)(b)(ix), 8(2)(e)(iv) icc Statute; Judgment and Sentence, Al Mahdi, icc, Trial Chamber viii, paras. 11, 13, 39] and customary international law [art. 27 Hague Regulations; arts. 53, 85(4)(d) api; art. 4(2) Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; Judgment, Strugar, icty, Trial Chamber, paras. 309–310; see: Attacks against Historic Monuments, Works of Art and Places of Worship]. Matthew Cross – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

N. Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, 28(1) B.U. Int’l L.J. (2010). N. Hayashi, ‘Basic Principles’, in R. Livoja, T. McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (2016), pp. 90–93, 101–103. N. Melzer, Targeted Killing in International Law (2008), pp. 278–298. M.N. Schmitt, ‘Military necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, 50(4) Va. J. Int’l L. (2010). G.D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2016), pp. 276–289. UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), pp. 21–23.

Military Objectives. Limiting the freedom of belligerents to choose and engage targets is one of the ways through which ihl seeks to protect civilians and civilian objects. Designation of military objectives as the only legitimate targets of attack in the conduct of hostilities represents an expression of the fundamental principle of distinction [art. 48 api; rule 7 icrc Customary ihl Study; see: Distinction]. While individuals, such as members of enemy’s armed forces or civilians directly participating in hostilities are often regarded as “military objectives” [1987 icrc Commentary api, p. 635, para. 2017; see: Combatants;

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Direct Participation in Hostilities], the most widely used definition and first codification of the notion is enshrined in Article 52(2) api and concerns objects only. In order to make the fundamental principle of distinction operative, ihl offers a binary definition of objects: either military objectives or civilian objects. No third category exists and only military objectives may be attacked. With the aim of ensuring the broadest protection of civilian objects, the latter are negatively defined as “all objects which are not military objectives” [art. 52(1) api; see: Civilian Objects]. No list of civilian/protected objects is provided. Contemporary ihl then offers a definition of military objectives that is based on general criteria rather than on a list of targetable objects [art. 52(2) api; rule 8 icrc Customary ihl Study]. The decision of the drafters of api to adopt such an approach was a clear shift from the general prohibition to attack towns, villages, dwellings, or undefended buildings affirmed in Article 25 of the 1907 Hague Regulations. Such new vision resulted from the evolution of warfare as well as technological developments, which meant that hostilities would increasingly be conducted also in villages and urban areas. Article 52(2) api provides for a two-pronged test with cumulative criteria and the determination whether an object is a military objective is necessarily context-specific. 1. An Effective Contribution to Military Action through Nature, Location, Purpose or Use The first element of the definition is that an object makes an effective contribution to the military action of a party to the conflict through its nature, location, purpose, or use [art. 52(2) api]. “Nature” refers to the intrinsically military character of an object. For example, military equipment, weapons, or military bases of the adversary will be considered to effectively contribute to its military efforts by their nature. “Location” puts emphasis on the strategic importance of an object because of its geographical position. For instance, a supermarket in the middle of a battlefield may be considered as a military objective since, for instance, its destruction may impede the adversary to hide behind it and to launch attacks from this vantage point. More importantly, a number of States consider that an area of land (e.g. a specific hill of strategic value or a mountain pass) may constitute a military objective because of its location [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005), pp. 29–32]. The importance to seize (or to impede the enemy from seizing) a site of particular military value is also one of the reasons why location matters [ila Study Group, The Conduct of Hostilities and International Humanitarian Law – Challenges of 21st Century Warfare (2017), p. 8].

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

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Such broad interpretation could well blur the line between military objectives and civilian objects, and consequently render the principle of distinction inoperative since every civilian activity might be c­ onstrued as indirectly sustaining the war effort. 2. Total or Partial Destruction, Capture or Neutralization, in the Circumstances Ruling at the Time, Offers a Definite Military Advantage The second part of the definition provided in Article 52(2) api further restricts the scope of the notion. According to this subjective element, even the o­ bjects that make an effective contribution to the military action of a party to the ­conflict might not be military objectives, unless their “total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. The advantage gained from engaging an object that contributes to military action of the adversary, must be “definite”, i.e. “concrete and perceptible” rather than “hypothetical and speculative”. It must also be military in nature. Therefore, political or economic advantages will not count in the assessment. As some commentators correctly note, there is a logical correlation between the two criteria defining military objectives [M. Sassòli, A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), p. 252, note 196]. The destruction, capture or neutralization of an object which makes an effective contribution to military action will usually also offer a definite military advantage. The assessment of the military advantage must be made “in the circumstances ruling at the time”. Indeed, depending on the circumstances, the d­ estruction of the same object may have a huge military advantage (e.g. water tank used by enemy forces in the desert) or quite limited one (e.g. same ­water tank used by enemy forces in a city). Lastly, the assessment of the military a­ dvantage is to be made at the level of “an attack as whole”; not at the micro-level of “isolated or specific parts of the attack”, nor at the macro-level of the “entire war” [Dinstein, p. 145]. 3. Legal Consequences If an object meets the criteria provided in Article 52(2) api, it can be regarded as a military objective. The legal consequence of this qualification is that the object in question may be attacked, or more precisely destroyed, captured, or neutralized totally or partially. Total destruction is therefore not the only option. For instance, while the prevailing view is that the partial use of a building for military purposes (e.g. only the roof is used by the enemy) turns it into a military objective as a whole

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[ila Study Group, p. 10], the partial destruction of the object – if possible, and knowing that modern technology sometimes permits it – might be the most appropriate course of action. Capture refers to the possibility of seizure. For instance, the seizure of a building used for military purposes or of weapons and ammunitions. Neutralization refers to a military action that denies an object to the enemy or disables it without capturing or destroying it. For example, an area of land may be neutralized by planting landmines on or around it [U.S. Law of War Manual, para. 5.6.7.1]. Another example could be to divert or disorient a missile. In order for an attack on military objectives to be legal under ihl, the attacker has, nonetheless, to comply with the additional principles of proportionality and precaution [arts. 51(5)(b), 57 api; rules 4, 5 icrc Customary ihl Study; see: Proportionality; Precautions, Active]. Lastly, it should be noted that some specially protected objects are exempt from attacks or at least benefit from a more restrictive regime of targeting, even when they are turned into military objectives. This is the case for instance of certain cultural objects and places of worship, and, under certain circumstances, of objects indispensable to the survival of the civilian population, of the natural environment as well as of works and installations containing dangerous forces [arts. 53–56 api; see: Attacks against Historic Monuments, Works of Art and Places of Worship; Attacks against Objects Indispensable to the Survival of the Civilian Population; Environment; Attacks against Works or Installations Containing Dangerous Forces]. 4. Assessment Though criticized by some as too vague [R. Kolb, Jus in Bello: Le Droit International des Conflits Armés (2009), p. 248] or, by others, as too restrictive [W.H. Parks, ‘Air War and the Law of War’, 32 Air Force Law Review (1990), pp. ­137–144], the definition of military objectives provided in api is widely accepted as reflecting customary international law [rule 8 icrc Customary ihl Study] and thus as binding upon all States, including the ones that are not party to api. Although the U.S. adopts a different interpretation of the term “effective contribution to military action” as noted earlier, it nevertheless accepts the customary nature of the definition contained in Article 52(2) api [The Report on US Practice (1997), Chapter 1.3]. Common Article 3 GCs and apii applicable to non-international armed conflicts do not include a definition of military objectives. The drafters of apii decided to remove a provision on military objectives similar to Article 52(2) api. Nonetheless, the formula set out in api is generally accepted as having an equally customary nature for non-international armed conflict [rule 8 icrc

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Customary ihl Study]. Similar definitions were reproduced in subsequent ihl treaties applicable to non-international armed conflict [Amended Protocol ii ccw; Second Protocol to the Hague Convention for the Protection of Cultural Property; Protocol iii ccw]. In brief, despite criticisms and interpretative controversies, the definition of military objectives, as provided in Article 52(2) api, adequately represents the state of the law today for both international and non-international armed conflicts. Its application, in operational practice, is however not without problems in general and in particular in the context of new war-fighting domains, such as cyberspace [see: Cyber Warfare]. Gloria Gaggioli, George Dvaladze – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

Y. Dinstein, ‘Legitimate Military Objectives under the Current Jus in Bello’, 78 International Law Studies (2002). K. Dörmann, ‘The Definition of Military Objectives’, in G.L. Beruto (ed.), The Conduct of Hostilities – Revisiting the Law of Armed Conflict – 100 Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocols – Current Problems of International Humanitarian Law (2007). A. Jachec-Neale, The Concept of Military Objectives in International Law and Targeting Practice (2015). R. Kolb, ‘Military Objectives in International Humanitarian Law’, 28(3) Leiden Journal of International Law (2015). M. Sassòli, ‘Military Objectives’, in R. Wolfrum (ed.), Max Planck Encyclopedia of ­Public International Law (2013). W.A. Solf, ‘Art. 52 api’, in M. Bothe, K.J. Partsch, W.A. Solf (eds.), New Rules for Victims of Armed Conflicts (2013).

Mines; see: Landmines Missing Persons. In general, under international law, the definition of missing persons is the result of the combined interpretation of different fundamental rights enshrined in ihl and ihrl. These rights include the rights to ­humane treatment, respect for family life, privacy, and life, on the one hand, and the prohibition of torture, hostage taking, and enforced disappearances, on the other. These sources have been the point of departure for establishing rules regulating the issue of missing persons and, thus, for creating strict

Missing Persons

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o­ bligations upon States, defining mandates for organizations and, most importantly, ­establishing rights for victims and their families. Furthermore, the multiplicity of sources regulating the issue of missing persons allows for the construction of a legal framework applicable to situations of armed conflict (regardless of the classification), other situations of violence and even times of peace. In the context of ihl, the icrc defines missing people as “those who are unaccounted for as a result of armed conflict, whether international or internal […] military or civilian; anyone whose family has no information on their fate or whereabouts” [icrc, Missing Persons: A Hidden Tragedy (2007), p. 4]. According to the icrc, “[t]he term family and relatives must be understood in their broadest sense, including family members and close friends, and taking into account the cultural environment” [icrc, Report: The Missing and Their Families (2003), p. 11]. In this respect, the right of a family to know the truth about the circumstances surrounding a disappearance and be informed about the fate of missing relatives is of primordial importance under both ihl and ihrl [icrc, Advisory Service: Guiding Principles/Model Law on the Missing (2009)]. As far as ihl is concerned, several provisions of the GCs and APs relate to this issue and impose an obligation on each party to a conflict to take all possible measures to elucidate the fate and whereabouts of persons reported missing [arts. 15–17 gci; arts. 18–20 gcii; arts. 120–124 gciii; arts. 16, 26, 136–141 gciv; arts. 32–34 api; art. 8 apii]. In particular, as thoroughly outlined by the icrc, “parties to a conflict must search for persons reported missing and facilitate enquiries made by family members” [icrc (2007), p. 9], so as to help them restore contact and bring them together. Public authorities shall also take all possible measures “to search for, recover and identify the dead and maintain lists showing the exact locations and markings of graves, together with particulars of the dead interred therein” [icrc (2009), p. 4]. Parties to international armed conflicts must provide information on the wounded, sick, shipwrecked, prisoners of war, other protected persons deprived of their freedom and the dead, as quickly as possible and without adverse distinction [icrc (2007), p.  9]. Furthermore, “combatants and civilians subject to internment have the right to correspond with their families and to receive relief” [arts. 71–72 GCIII; arts. 107–108 gciv; icrc (2007), p. 9; see: Deprivation of Liberty, Treatment]. Thus, two general obligations arise out of these provisions, namely clarifying the fate and whereabouts of missing persons and preventing people from going missing. Furthermore, these obligations have become a rule of customary ihl: “[e]ach party to the conflict must take all feasible measures to account

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for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate” [rule 117 icrc Customary ihl Study; see: Central Tracing Agency; National Information Bureaux]. In practice, the aforementioned obligations entail some concrete and practical steps to be undertaken to address the issue of missing persons at different stages, such as: (i) raising awareness among weapon bearers of their obligations under ihl, which requires establishing control through a strict chain of command or ensuring that personal identity documents are issued (ii) establishing an adequate system of information management, which requires the collection of accurate information and centralization of personal data in order to compare and find a match; (iii) processing files on missing persons sought by their families; (iv) creating mechanisms for clarifying the fate of missing persons, which should include the mobilization of public opinion and the media, as well as investigations and criminal procedures; (v) adopting protocols on management of information on the dead and of human remains by State authorities and armed groups responsible for handling such matters; (vi) providing support to missing persons’ families as they face specific material, financial, psychological and legal needs that must be addressed by the State authorities; and (vii) respect for the dead and for local funeral rites to demonstrate respect for the mourning process, which is essential for peace and social order [icrc (2003), pp. 12–17]. These measures demonstrate that the regime regulating the issue of missing persons is of a multifaceted nature. It engages different State and non-State actors that may or may not be party to an armed conflict (for example, the initial efforts undertaken in relation to this issue in Colombia after the peace agreement with the farc guerrilla). It also involves humanitarian organizations or specialized agencies in the fulfilment of their mandate in the field (for instance, the International Commission on Missing Persons helped to develop Bosnia and Herzegovina’s institutional capacity to address the issue of missing persons by, inter alia, crafting legislation to safeguard the rights of families and introducing systematic forensic methods). In addition, where applicable, the obligations relating to the issue of missing persons may require the support and technical assistance of national and international organizations, such as the icrc, oas, and nato (for example, in 2010, in Georgia, the icrc ­established two coordination mechanisms for clarifying the fate of persons who went missing as a result of the armed conflicts of the 1990s and August 2008). However, most importantly, the interests of those directly affected, the families, must be taken into account. They require various forms of support

Mortars

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(economic, psychological, and psychosocial), practical assistance (the determination of the legal and administrative status of those reported missing), recognition of their suffering, and some form of justice. Critically, some of these obligations, especially bearing upon the parties to the conflict, are sometimes difficult to respect in light of the ongoing hostilities and the lack of resources (especially in the case of armed groups). In fact, the necessary resources to deal with the problem of missing persons are often not even available in contexts not affected by armed conflict. Gerardo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

icrc, Missing Persons: A Hidden Tragedy (2007). icrc, Report: The Missing and Their Families (2003). icrc, Advisory Service: Guiding Principles/Model Law on the Missing (2009). icrc, ‘Missing Persons’, 84(848) irrc (2002). A. Petrig, ‘Search for Missing Persons’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015).

Mixed Criminal Tribunals; see: Hybrid or Internationalised Tribunals Mortars. Mortars are a single-tubed form of artillery [see: Artillery], which are used for high-angle firing of munitions (typically shells, but also grenades) over shorter distances than cannons and howitzers. Mortars are either manportable or towed and are usually muzzle loaded. Since the fifteenth century, mortars have been widely used in sieges [see: Siege] and assaults on areas ­defended by high walls or other protective cover. There is no ihl treaty dedicated to mortars. As with any weapons system, though, their use in the conduct of hostilities is subject to the ihl rules of ­distinction, precautions, and proportionality in attack [see: Distinction; Precautions, Passive; Precautions, Active; Proportionality]. Syria, for example, has suffered many instances from indiscriminate bombardments. In the 2012 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic established by the hrc, it was reported that the city of Al Qusayr was subjected to indiscriminate attacks by mortar fire between February and May of 2012. On the basis of its findings, the ­Commission of Inquiry on Syria “determined that the legal threshold for an indiscriminate attack as a violation of customary international humanitarian

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law was reached”, since “[g]overnment forces fired shells into areas inhabited by civilians while failing to direct them at a specific military objective” [hrc, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (2012), para. 94]. In the icty jurisprudence, the legality of military operations by means of mortar shelling has been assessed too. A Trial Chamber inferred from the weapons used by the Croatian Defence Council against Stari Vitez in July 1993 (artisanal mortars, locally known as “baby bombs”) that the perpetrators of attacks wanted to target the civilian population [Judgment, Blaškić, icty, Trial Chamber, para. 512]. However, this holding was overturned on appeal and, in addition, the Appeals Chamber noted that “[i]t need not be decided whether, in general terms, the use of ‘baby bombs’ is illegal” [Judgment, Blaškić, icty, Appeals Chamber, paras. 464–65]. In addition, Major-General Stanislav Galić, commander of Bosnian Serb forces in and around Sarajevo from September 1992 to August 1994, was charged and convicted by the icty of “a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population”, which “resulted in thousands of civilians being killed or injured” [Judgment, Galić, icty, Trial Chamber i, para. 15]. In one of these shelling incidents, criminal responsibility was founded on a mortar shelling where the shells landed between 100 and 150 metres away from a target that could have represented a lawful military objective [Galić, paras. 331–45]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Amnesty International, Unlawful and Deadly Rocket and Mortar Attacks by Palestinian Armed Groups During the 2014 Gaza/Israel Conflict (2015). S. Parker, ‘Commentary on Article 2(1)’, in A. Clapham, S. Casey-Maslen, G. Giacca, S. Parker (eds.), The Arms Trade Treaty: A Commentary (2016), para. 2.78.

Murder; see: Wilful Killing and Murder National Criminal Tribunals. National criminal tribunals have played a significant role in the investigation and prosecution of violations of ihl [see: War Crimes; Grave Breaches; Serious Violations of the Laws and Customs of War]. Domestic trials against war criminals have preceded the establishment of the imt in Nuremberg. On 2 November 1942, the Soviet Union established

National Criminal Tribunals

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the “Extraordinary State Commission for ascertaining and investigating crimes perpetrated by the Germano-Fascist invaders and their accomplices, and the damage inflicted by them on citizens, collective farms, social organisations, State enterprises and institutions of the ussr”. The Commission’s main goal was to record the crimes allegedly perpetrated by the German forces, as well as to identify those responsible for such crimes and bring them to justice. The 1943 Moscow Declaration, issued by the ussr, the U.S. and the U.K, emphasized the role of national tribunals in prosecuting, convicting, and punishing war criminals, by stating: “[a]t the time of granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done, in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein”. On the basis of this Declaration, the first war crimes trial took place in Kharkov (Ukraine) in December 1943. This trial relied on the material collected by the Commission. Three officials of the Kharkov Gestapo were tried before a Soviet military court. They had been accused of gassing thousands of civilians, committing brutal atrocities, burning villages, and exterminating women, elderly, and children, as well as of burning alive, torturing, and executing the wounded and prisoners of war. The three officials were found guilty and sentenced to death by hanging. The prosecution relied on the rules of war laid down by the 1907 Hague Convention (iv) and Regulations and the 1929 Geneva Convention [see: Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907)]. Further trials took place at the end of the war in the ussr in different cities such as Kyiv, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki, and Nikolaev. It is still on the basis of the Moscow Declaration that the Bulgarian People’s Court convicted eleven Bulgarians of war crimes in December 1944. In order to prosecute war criminals in Germany, who had not been brought before the imt, the Allied Council adopted the Control Council Law No. 10, whose Article 2 provided the same definition of war crimes as established in Article 6(b) of the London Charter. In the Hostage case, U.S. Military Courts stated that war crimes in the Nuremberg Charter and in Control Council Law No. 10 were declaratory of the existing laws and customs of war. The case concerned German nationals accused of war crimes and crimes against humanity perpetrated during World War ii. Several national prosecutions of perpetrators of war crimes committed during World War ii have taken place in a number of countries. Indeed, after the

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end of World War ii, breaches of the laws of war and customs of war amounting to war crimes were pursued, inter alia, by national tribunals in Australia, the United Kingdom, Canada, China, France, and Norway. In addition, since the end of the Cold War, Eastern European countries showed a significant interest in prosecuting and punishing alleged perpetrators of war crimes supposedly taking place under the regime in the Soviet Union. For instance, on 27 August 2004, Latvian courts convicted Mr Kononov on the basis of a definition of war crimes pursuant to Article 68(3) of the Latvian Criminal Code, which entered into force in 1993. This provision, enacted 49 years after the events concerned, provides a definition of war crimes through a renvoi to “relevant legal conventions” of international law. Mr. Kononov, as member of the Soviet red partisans, had taken part in a punitive military expedition in the village of Mazie Batie against some inhabitants, suspected of being collaborators of the Wehrmacht, in 1944. The Grand Chamber of the ECtHR concluded that the conviction of Mr Kononov did not violate the prohibition of retroactive application of criminal law under Article 7 echr, as war  crimes for which the applicant had been convicted were defined with sufficient ­accessibility and foreseeability predominantly by the 1907 Hague ­Convention (iv). Maktouf and Damjanovic is one of the cases concerning war crimes tried by a national court in Bosnia and Herzegovina. The State Court convicted and sentenced the applicants on the basis of the 2003 domestic Criminal Code for war crimes committed during the 1992–1995 conflict in the former Yugoslavia. Mr. Maktouf was found guilty of war crimes for aiding and abetting the taking of hostages. For this reason, he was sentenced to five years of imprisonment pursuant to Article 173(1), in conjunction with Article 31 of the 2003 Criminal Code. Mr Damjanovic was held liable of torture as a war crime committed on 2 July 1992 and sentenced to eleven years of imprisonment under Article 173(1) of the Bosnian Criminal Code. However, the ECtHR found that their sentences constituted a breach of Article 7 echr, since the 2003 Criminal Code imposed heavier sentences than the provisions of the 1976 Code, which should have been applied in the case in question. Moreover, the icty and ictr have been referring some cases to national courts, where the former decided not to exercise their primacy over competent national courts. While the ad hoc tribunals have prosecuted those most responsible for violations of ihl, they have referred to national courts cases involving law-ranks individuals [see: International Criminal Tribunals; Hybrid or Internationalised Tribunals]. Triestino Mariniello – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

National Information Bureaux

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Bibliography

W.N. Ferdinandusse, Direct Application of International Criminal Law in National Courts (2006). G. Fitzpatrick, T. McCormack, N. Morris, Australia War Crimes Trials 1945–1951 (2016). T. Mariniello, ‘The Nuremberg Clause and Beyond: The Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence’, 82(2) Nordic Journal of International Law (2013). G. Werle, F. Jessberger, Principles of International Criminal Law (2014).

National ihl Committees; see: Qualified Persons National Information Bureaux. ihl calls for certain procedures to be followed by belligerent States upon the outbreak of hostilities in order to ensure the protection of the victims of armed conflicts. One of these is the establishment of National Information Bureaux in the territories of the States involved in the armed conflict. The initiative of creating such a Bureau was originally taken up at the end of the nineteenth century. The 1899 Hague Regulations stated for the first time that States embroiled in an armed conflict are obliged to institute such Bureaux on the commencement of hostilities. According to these Regulations, the Bureaux shall be able to answer all enquiries about prisoners of war [art. 14 1899 Hague Regulations; see: Prisoners of War]. In order to achieve this goal, States were urged to keep these Bureaux constantly updated on changes in the prisoners’ conditions of captivity [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. ii (2005), p. 2814]. The rule was again codified in the 1907 Hague Regulations [art. 14(1) 1907 Hague Regulations]. The provisions on this subject matter were worded slightly differently, yet suggested the same meaning as those in the 1899 Regulations. A few years later, during World War i, enquiry offices acted as the main focal points for information on persons deprived of their liberty. The idea, therefore, proved to be of worth [Henckaerts, Doswald-Beck, p. 2815]. This positive experience encouraged the drafters of the 1929 Convention on Prisoners of War to reaffirm and develop further the obligation of belligerents to open such offices once an armed conflict breaks out [1958 icrc Commentary gciv, p. 523]. When World War ii erupted, it provided an opportunity to test the effectiveness of this system. Nevertheless, a few practical deficiencies affecting the system had to be remedied. Accordingly, adjustments to the ­provisions of the 1929 Convention were made during the drafting process

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of the 1949 GCs. This was particularly evident when inquiry offices received and transmitted information concerning civilian internees during World War ii. Although belligerents were persuaded by the icrc to do so, information offices lacked a legal basis to operate in this particular area. This practice was finally legally regulated in gciv [arts. 136–137, 140 gciv]. As such, the scope of the Bureaux was officially broadened to include interned civilians [1958 icrc Commentary gciv, p. 522; see: Internment]. Inspired by similar provisions in previous conventions, gciii and gciv provide for the obligatory establishment of an official Information Bureau by each party to the conflict, as well as neutral States that may have accepted to take in members of the belligerent armies [Henckaerts, Doswald-Beck, pp.  2814–2815]. The function of these Bureaux is to collect full information and reply to enquiries on the identity of the detainees, on any changes in the conditions of captivity or in their status, and on their state of health [HenryDunant Institute/UNESCO, International Dimensions of Humanitarian Law (1988), p. 174; see: Missing Persons]. Although the 1929 Convention provided for the immediate transmission of information regarding the state of health of prisoners of war, this was not always the case in World War ii. The Central Agency had to approach the national Bureaux for any information it needed with regard to the prisoners’ state of health. The 1949 GCs, therefore, laid more emphasis on the urgent need to transmit such information in respect of seriously ill or seriously injured protected persons [1960 icrc Commentary gciii, p. 536]. Another lesson was the continuing risk of error in recording and transcribing the personal details of the protected persons, which caused confusion about their identities. In order to avoid this scenario, the GCs provided for a long list of identity particulars to be obtained wherever possible [art. 122(4) gciii; art. 138(1) gciv]. The organization of these Bureaux may be entrusted to the military services, a civilian administration, or to any other entity. In some previous conflicts, the work was done by National Red Cross Societies. The GCs do not state what authority will be responsible for establishing the Bureaux, leaving this matter to the discretion of each party [1958 icrc Commentary gciv, p. 523]. Omar Mekky – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

Henry-Dunant Institute/UNESCO, International Dimensions of Humanitarian Law (1988), pp. 174, 193.

National Legislation

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National Legislation. The 1949 GCs oblige States parties to adopt domestic legislation to ensure an effective enforcement of their mandates by criminalizing certain violations. Indeed, they contain a common provision establishing that “[t]he High Contracting Parties undertake to enact any penal legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention […]” [art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv; see: Grave Breaches]. The common legal framework of the GCs compelling contracting parties to enact criminal provisions should enable domestic jurisdictions to investigate and prosecute individuals suspected of having committed or ordered the commission of grave breaches. This requirement constituted a significant innovation in international law and paved the way for enforcement provisions in future multilateral treaties. api supplements and clarifies the GCs common provisions. In particular, Article 80 api provides that “[t]he High Contracting Parties and the Parties to the conflict shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol”. States parties have implemented the Conventions in different ways. For instance, South Africa has incorporated all international treaty obligations ­including the grave breaches provisions in api and in the GCs. South African domestic legislation also covers the crimes falling within the jurisdiction of the icc. In line with former Yugoslav legislation, Bosnia and Herzegovina’s criminal code presents three different articles on the definition of war crimes. Article 173 of the criminal code of Bosnia and Herzegovina deals with war crimes committed against the civilian population, while Article 174 defines war crimes committed against the wounded and sick; Article 175 provides a list of acts amounting to war crimes if committed against prisoners of war. The icc Statute has provided a significant contribution to the implementation of the GCs, particularly war crimes. The establishment of the icc prompted several States to adopt national legislation on international crimes. In ­Canada, the 2000 Crimes against Humanity and War Crimes Act has introduced a definition of international crimes. According to this Act, “war crime” means “an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission” [art. 6(3)]. In Canada, a distinct Geneva Conventions Act covers breaches of the GCs. A number of States have decided to incorporate international crimes into their criminal codes. For instance, the Colombian Criminal Code presents a

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specific section, which was enacted in 2000 [arts. 135–164] dealing with violations against persons and property protected by ihl. Similarly, the Panama Criminal Code defines offenses perpetrated against persons and property protected by ihl [arts. 434–446]. Despite Nicaragua not being a State party to the icc, domestic legislation has incorporated the core violations of ihl and war crimes established in Article 8 of the icc Statute in the national Criminal Code. In other States, such as Argentina and Costa Rica, national legislations present a definition of war crimes through a direct referral to international sources. Indeed, in Argentina, the Law No. 26.200 implemented the definition of war crimes by directly referring to Article 8 of the icc Statute. In Costa Rica the national Criminal Code has been amended by a general clause penalizing war crimes and serious violations of ihl. In Uruguay, the Law 18.026 has introduced definitions of war crimes, which are divided in three different categories: (i) war crimes that consist of grave breaches of the GCs; (ii) war crimes that amount to serious violations of the laws and customs of war; and (iii) other grave breaches of ihl stated in api. Triestino Mariniello – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

M. Bergsmo, M. Harlem, N. Hayashi (eds.), Importing Core International Criminal Law into National Law (2010).

National Liberation Movements; see: International Armed Conflict; Armed Groups National Red Cross and Red Crescent Society; see: International Red Cross and Red Crescent Movement Naval Warfare. Naval warfare is a general term with no specific ihl definition. As a minimum, it encompasses situations of combat at sea and other naval operations that take place within the context of hostilities. Consequently, those situations of naval warfare of direct relevance to ihl are those in which the three pillars of the law applicable to armed conflict at sea apply de jure: ihl, prize law (the law dealing with the condemnation by prize courts of captured merchant vessels and cargoes), and the law of neutrality

Naval Warfare

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

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shipwrecked), in the Hague Conventions (iv-xiii) of 1907 (relating primarily to means and methods issues, such as the conversion of merchant ships to warships, hospital ships, and naval mines) – even though The Hague Convention xii, establishing an international prize court, never came into force – and, more recently, in gcii (concerning the sick, wounded and shipwrecked during armed conflict at sea) [see: Hospital Ships; Wounded and Sick; Shipwrecked; Merchant Vessels]. It is now widely accepted that the basic targeting rules in api also apply to the conduct of armed conflict at sea, although Article 49(3) api specifically notes that the attack rules “apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air”. It is also of note that given the relative paucity of recent treaty law concerning the law of naval warfare, a soft law instrument – the 1994 San Remo Manual – is particularly influential as a guide to the modern application of this body of law. Other aspects of general ihl, and of international customary law, also act to regulate armed conflict at sea, but often require a degree of contextualisation in order to be sensibly applied. One example is that, whilst disguising a land unit or aircraft’s nationality, by displaying a false flag, could amount to perfidy, it is a permissible ruse of war for a warship to fly a false flag up until the commencement on an engagement [art. 110 San Remo Manual; see: Perfidy; Ruses of War; Warships]. Finally, it is important to note that whilst before 1949 there was a long history of debate as to whether the law of war was also applicable at sea in certain types of insurgency and civil war contexts, the precise bounds of the ­applicability of modern law of naval warfare to non-international armed conflicts with a maritime dimension remains contested. One example of such an issue is the extent to which modern ihl has extinguished (or not) the traditional distinctions drawn between pirates, insurgents who target only the shipping of their adversary parent State, and the conduct of hostilities in the maritime domain by recognised belligerents. Robert McLaughlin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W. Heintschel von Heinegg, ‘The Current State of the Law of Naval Warfare: A Fresh Look at the San Remo Manual’, 82 International Law Studies (2006). R.W. Tucker, ‘The Law of War and Neutrality at Sea’, 50 International Law Studies (1955).

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Neutral Ports. Neutral States must guard wounded, sick, or shipwrecked persons who are landed in their ports and take action to ensure that these persons do not again take part in military operations [art. 17 gcii; see: Wounded and Sick; Shipwrecked; Neutrality]. The costs occasioned by the presence of such persons must not be borne by the neutral State, but must be reimbursed by the power on which they depend [art. 17 gcii; 1960 icrc Commentary gcii, p. 119; see also: 2017 icrc Commentary gcii, paras. 1614–1615]. Neutral territory may be a place of asylum, but it must not be a place of transit on the way to battle zones [1960 icrc Commentary gcii, p. 119]. The gcii provision on neutral ports remains ambiguous in some respects. For example, it does not clearly state whether a person landed at the neutral port must be interned or instead set free by the neutral State. So as not to confer a benefit upon a belligerent, the gcii Commentary suggests that where a protected person is of the same nationality as a belligerent ship, he or she must be interned by the neutral State; whereas if the protected person who is landed at the neutral port is an enemy of the belligerent ship, the person must be set free. It is suggested that this is the only way to respect the principle of impartiality. For a belligerent might instead seek to exploit the resources on offer from the neutral State to heal, house, or protect its own soldiers and later return them to battle [1960 icrc Commentary gcii, pp. 126–127]. Roger Phillips – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Neutral Powers. Under the GCs, the notion of “neutral power” or “neutral State” refers to all States that are not parties to an international armed conflict. It is therefore not limited to those States that decide to be neutral – either on a permanent or ad hoc basis – in accordance with the law of neutrality [2016 icrc Commentary gci, paras. 916–918; see: Neutrality]. Such a meaning is not modified by the distinction between neutral States, on the one hand, and States not parties to a conflict, on the other hand, drawn in Article 2(c) api [1977 icrc Commentary api, paras. 135–136]. In general, neutral States have a number of humanitarian obligations towards the persons protected by the GCs and api that are received on their territory. Furthermore, they may play a role in upholding respect for and implementation of ihl by the parties to an international armed conflict and in providing relief to protected persons [see: Protected Persons]. Neutral States are required to apply by analogy gci-ii and relevant provisions of api to those categories of persons specifically protected under these

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treaties [art. 4 gci; art. 5 gcii; art. 19 api]. The basic duty of a neutral State is to respect and protect such persons that are received or interned in its territory. gciii prescribes a neutral State to treat, as prisoners of war, those persons qualifying for such status who are received on its territory and who must be interned in accordance with the law of neutrality [art. 4(B)(2) gciii; art. 11 Hague Convention v]. While ihl does not impose similar obligations vis-à-vis civilians or protected persons under gciv, a neutral State is bound to treat them in accordance with relevant obligations deriving from ihrl and international refugee law [Y. Sandoz, Rights, Powers and Obligations of Neutral Powers under the Conventions, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015), p. 102]. A neutral State may offer to accommodate in its territory certain types of protected persons, in particular wounded and sick prisoners of war, ­able-bodied prisoners of war who have undergone a long period of captivity, children, pregnant women, mothers with infants and young children, wounded and sick ­civilians, and civilian internees who have been detained for a long time [art. 109 gciii; art. 132 gciv]. Accommodation in neutral territory is to be arranged by way of agreement with the parties to the conflict. Article 122 gciii obliges a neutral State that receives prisoners of war within its territory to establish an Information Bureau [see: National Information Bureaux]. gciii-iv also require neutral States to create a Central Agency entrusted with the task of collecting information on prisoners of war and protected persons, especially internees [art. 123 gciii; art. 140 gciv; see: Central Tracing Agency]. In practice, the icrc Central Tracing Agency has taken up the tasks envisaged for Central Agencies, so that the role of neutral States in this respect has “practically vanished” [Sandoz, p. 106]. A neutral State has the obligation to prosecute any person who has allegedly committed, or has ordered to be committed, a grave breach of the GCs or api [see: Grave Breaches]. Alternatively, this State must hand over the alleged perpetrators to another State, which is willing to prosecute such persons and may prove a prima facie case against them [e.g. arts. 49–50 gci]. A neutral State may also prosecute the alleged perpetrators of war crimes or other international crimes on the basis of universal jurisdiction. It should finally be mentioned that neutral States may act as protecting powers or be appointed as substitutes for protecting powers [art. 10 gci art. 10 gcii; art. 10 gciii art. 11 gciv; arts. 2(c), 5 api; see: Protecting Powers]. The latter situation arises when a State may no longer fulfil the task of protecting power vis-à-vis the persons protected by the GCs and api, for instance because it becomes a party to the conflict.

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Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

S.C. Neff, The Rights and Duties of Neutrals: A General History (2000). Y. Sandoz, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015).

Neutrality. The law of neutrality regulates the rights and duties of a neutral State vis-à-vis the parties to an international armed conflict. Its purpose is to provide a State with the possibility to maintain a friendly relationship with the belligerents [see: Belligerents; Belligerency], in order to avoid more States being drawn into an armed conflict. Customary international law and the 1907 Hague Conventions v and xiii govern neutrality in land and naval warfare. Corresponding rules relating to air and cyber warfare may be found in other instruments [rules 165–175 Harvard Manual on International Law Applicable to Air and Missile Warfare (Harvard Manual) (2009); rules 91–95 Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn Manual) (2013)]. The law of neutrality does not apply in non-international armed conflicts. A neutral State has the fundamental right not to be adversely affected by an armed conflict. Subject to the limitations imposed by the law of neutrality, its relationship with the belligerents remains governed by the law of peace, including the possibility to maintain regular commercial relations with them (so-called courant normal). A neutral State bears two basic duties: ­non-participation and impartiality. On the one hand, it must in no way provide assistance to the belligerent States or let them employ its territory for military purposes. On the other hand, although not obliged to treat the belligerents in exactly the same way, it must implement impartially the conditions or restrictions deriving from its neutral status, and avoid any preferential commercial treatment of one or more parties to the conflict [art. 9 Hague Convention v; art. 9 Hague Convention xiii]. It should be highlighted that by fulfilling obligations or tasks of a humanitarian character prescribed or allowed by the GCs (e.g. acting as a protecting power), a neutral State does not breach the law of neutrality. Belligerents must respect the territory of the neutral State, including its territorial sea and internal waters, airspace and cyberspace; they must not engage in conduct that would violate the neutral State’s rights [art. 1 Hague Convention v; arts. 1–2 Hague Convention xiii; rules 170–171 Harvard Manual; rules

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91–92 Tallinn Manual]. Neutral States are obliged to defend their neutrality by all available means, including armed force, which in this sense is not regarded as a hostile act [arts. 5, 10 Hague Convention v; arts. 2, 9, 24 Hague Convention xiii]. Humanitarian assistance does not constitute interference in a conflict in violation of neutrality. In case of necessity, the neutral State may authorise the overflight and landing of medical aircrafts on its territory [art. 37 gci; art. 40 gcii; arts. 31, 70 api]. Belligerents are prohibited from conducting any act of hostility from a neutral State’s territory. The use of the latter’s flags, emblems, uniforms, or insignia is generally forbidden, and may amount to perfidy [arts. 37, 39 api; see: Perfidy]. The transit and movement on neutral territory of troops or convoys carrying war materials is prohibited. In naval warfare, belligerents have a right of innocent passage through a neutral State’s territorial waters. Their warships may remain in the ports, roadsteads, or territorial waters of a neutral State for a maximum of twenty-four hours, unless damage or bad weather prevents departure. If a war ship overstays the time period it is entitled to, the ship and its crew may be detained [art. 2 Hague Convention v; arts. 10, 12, 14, 24 Hague Convention xiii]. The transit of wounded and sick military personnel on neutral territory is allowed, but the neutral State must prevent them from re-joining the hostilities [art. 14 Hague Convention v; art. 15 gcii]. The neutral State has an obligation to intern troops that take refuge on its territory and to withhold any war ­materials and equipment [see: Internment; Italian Military Internees]. Escaped ­prisoners of war who arrive on neutral territory are to be set free but may be assigned a place of residence; the same rule applies to prisoners of war that are brought by troops taking refuge on neutral territory. The belligerents and the neutral State may adopt agreements for the general internment of prisoners of war on the latter’s territory, or for the internment of prisoners of war that have undergone a long period of captivity. It is also possible to accommodate on neutral territory wounded and sick prisoners of war when such treatment might improve and accelerate their recovery or avoid a serious threat to their health caused by captivity [arts. 11, 13 Hague Convention v; arts. 109–111 gciii]. Neutrality begins and ends according to the duration of a conflict. Certain States, e.g. Switzerland and Austria, undertook a legal obligation of permanent neutrality. In light of this commitment, they must not engage in activities which would impede them to fulfil their corresponding duties at the outbreak of an armed conflict, such as becoming members of military alliances requiring participation in collective self-defence.

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It is important to note that the creation of the collective security system under the UN Charter has had an impact on the law of neutrality. Binding ­decisions of the unsc may indeed affect measures undertaken pursuant to this legal framework. For example, the imposition of sanctions may prevent a neutral State from acting impartially towards a belligerent State; furthermore, assistance provided to States undertaking authorised enforcement action does not amount to a breach of the duty of non-participation. Subject to ­compliance with the UN Charter, the status of ad hoc or permanent neutrality remains relevant to contemporary international armed conflicts [Advisory Opinion, Legality of the Threats or Use of Nuclear Weapons, icj, p. 89; US Law of War Manual (2015), pp. 929–993]. States at times declare to be non-belligerent, signalling their non-participation in a conflict without being subject to the conditions imposed by the law of neutrality. At present, customary international law does not yet acknowledge non-belligerency as a legal status. Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

M. Bothe, ‘The Law of Neutrality’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). M. Bothe, ‘Neutrality, Concept and General Rules’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015). E. Castren, The Present Law of War and Neutrality (1954). D. Schindler, ‘Aspects Contemporains de la Neutralité’, 121 Recueil de Cours de l’Académie de Droit International (1967). P. Seger, ‘The Law of Neutrality’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014).

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

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

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According to the icrc Customary ihl Study, the establishment of neutralized zones is considered to be a norm under customary international law for both international and non-international armed conflicts. The icrc Study ­provides that the notion is incorporated into many military manuals and, furthermore, it is deemed an offence to attack such zones under the legislation of a number States [rule 35 icrc Customary ihl Study]. There are also situations where the unsc or other bodies, as opposed to the parties to the conflict have established protected zones. The language used to describe these areas may be far broader than that used in the GCs, and includes: safe areas, safe zones, safe havens, secure humanitarian areas, UN protected areas, security zones, security corridors, safe corridors, and humanitarian corridors [see: Humanitarian Corridors]. The challenge of a neutralized zone created by the unsc is that without agreement of the parties, their respect is hard to enforce and they are difficult to protect. Daniela Gavshon – the views expressed are those of the author alone and do not necessarily reflect the views of the Public Interest Advocacy Centre Bibliography

N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions: A Commentary (2015).

New Weapons. A weapon is “a means of warfare used in combat operations, including a gun, missile, bomb or other munitions, that is capable of causing either (i) injury to, or death of, persons; or (ii) damage to, or destruction of, objects” [hpcr Manual on International Law Applicable to Air and Missile Warfare (2009), p. 6]. Primarily due to constant technological advances, existing types of weapons are improved and new types of weapons are developed. The legality of these new types of weapons or munitions depends, first, on the question whether a specific ban or restriction on its use exists and, second, whether the designated use of that weapon complies with the restrictive rules of ihl regarding the legality of weapons. New weapons must be subjected to a weapons review. This is both a right reserved to governments, as it is their responsibility. Furthermore, it is a legal obligation of those States that are a party to api. Article 36 api provides that “[i]n the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party”.

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A number of States have established weapons review mechanisms. However, many States have not, including many that are parties to api. Guidance on how such mechanisms may be implemented has been proposed by the icrc. New weapons must be in accordance with existing specific restrictions in treaty law, such as the Convention on Certain Conventional Weapons and its Protocols [see: Convention on Certain Conventional Weapons (1980)], and with the general principles that determine their legality. The first of these general obligations on States with regard to the legality of weapons is the prohibition of the employment of weapons that are of a nature to cause superfluous injury or unnecessary suffering to the opposing forces [art. 35(2) api; rule 70 icrc Customary ihl Study; see: Superfluous Injury and Unnecessary Suffering]. The second important obligation concerning the legality of new types of weapons is to respect the principle of distinction [see: Distinction]. Weapons that are inherently indiscriminate are thus prohibited. This is a well-established rule of customary international law. In addition, applicable rules relating to the protection of the environment play an additional role in determining the legality of new weapons. In this regard, Article 35(3) api prohibits the use of weapons that are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment [see: Environment]. It is debatable whether the legality of new weapons may be determined directly by the customary ihl principles of weapons law. The question whether these rules are binding on States to the effect that they are capable of banning or restricting the use of new weapons, for example on the basis of the Martens Clause [see: Martens Clause], is unsettled. Jeroen van den Boogaard – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

W.H. Boothby, Weapons and the Law of Armed Conflict (2016), pp. 342–355. icrc, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare – Measures to Implement Article 36 of Additional Protocol i of 1977 (2006). W.H. Parks, ‘Conventional Weapons and Weapons Reviews’, 8 yihl (2005).

No-Fly Zone. Establishing a no-fly zone is a measure that States may take during armed conflict to restrict the freedom of aerial navigation over their own territory or in enemy airspace. Once it has been established, it needs to be enforced by the State that established it. It is legal for States to close their

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

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Neutrality], a no-fly zone is unsuitable to be used as a method of warfare in a ­non-international armed conflict against a non-State actor that operates outside the own State. No-fly zones must be differentiated from exclusion zones, which aim to restrict airspace in international airspace. Jeroen van den Boogaard – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

hpcr, Commentary to the Manual on International Law Applicable to Air and Missile Warfare (2009), pp. 235–243. M.N. Schmitt, ‘Air Law and Military Operations’, in Gill, T.D., Fleck, D. (eds.), The Handbook of the International Law of Military Operations (2015). L. Vierucci, ‘The No-Fly Zone over Libya: Enforcement Issues’, 21 Italian Yearbook of International Law (2011).

Non-Detectable Fragments. This term derives from the rule contained in Protocol i ccw [see: Convention on Certain Conventional Weapons (1980)]. This Protocol, one of the shortest legal instruments in ihl, states the following: “[i]t is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by x-rays”. The Protocol bans any weapon using non-detectable fragments as its primary incapacitating mechanism. Such weapons have not been commonly seen in modern armed conflicts. Examples of such munitions include those that employ plastic, glass, concrete, or similar substances in their primary fragmentation. Weapons that may incidentally produce such fragments (for example, that may be caused by some non-metallic component parts, such as in fusing or certain outer casings) are generally considered as not captured by the definition. The definition was the result of discussions in the 1970s on certain antipersonnel fragmentation weapons and concerns that they might be indiscriminate in their effects or cause unnecessary suffering, specifically cluster warheads and bomblets [icrc, Conference of Government Experts on the Use of Certain Conventional Weapons (1974), pp. 53–54]. At the time, views were split on proposals to prohibit the use of anti-personnel cluster warheads and weapons with pre-fragmented irregularly shaped elements, but a prohibition on non-detectable fragments gained wide support and was later proposed and adopted as Protocol i ccw. The icc Statute was amended in 2017 to include the following war crime in international and non-international armed conflict: “[e]mploying weapons

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the primary effect of which is to injure by fragments which in the human body escape detection by X-rays” [art. (8)(2)(b)(xxviii), 8(2)(e)(xvii) icc Statute]. Louis G. Maresca – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

W.H. Boothby, Weapons and the Law of Armed Conflict (2016). icrc, Weapons that may Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work of Experts (1973).

Non-Discrimination. Non-discrimination is at the core of the creation and existence of the icrc, as well as of the drafting of the 1864 Geneva Convention. While neutrality underpins this Convention as a whole, Article 6 specifically prohibits discrimination against the wounded and sick [see: Wounded and Sick]. The 1949 GCs built on the core humanitarian principle of neutrality and expanded the concept of non-discrimination such that parties to conflicts must satisfy their humanitarian obligations without any adverse distinction on grounds such as nationality, sex, and race. A general prohibition on discrimination is found, in relation to international armed conflicts, in all four 1949 GCs and api [art. 12 gci; art. 12 gcii; art. 16 gciii; arts. 13, 27 gciv; arts. 9(1), 75(1) api], whereas, in relation to ­non-international armed conflicts, it is found in Common Article 3 GCs and apii [arts. 2(1), 4(1), 18 (2) apii]. The icrc Customary ihl Study identifies a general rule prohibiting adverse distinction, as well as more specific obligations in relation to medical care of the wounded and sick and for the evacuation of the dead [rules 88, 110, 112 icrc Customary ihl Study]. The principle of non-discrimination is central to other branches of public international law as well, particularly ihrl. The right to equality and non-­ discrimination in ihrl has been recognised since the udhr. Most international and regional human rights instruments include it as a foundational principle [e.g. art. 2 udhr; art. 26 iccpr; art. 14 echr; art. 24 achr; art. 2 crc]. It is also at the core of two specific UN human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (cerd), which was adopted in 1965 to prohibit discrimination on the grounds of race, and the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), which was endorsed in 1979 to proscribe discrimination on the grounds of gender. The principle of non-discrimination thus applies both in ihl and ihrl and, in this manner, narrows the gap between these fields of law [see: I­ nternational Human Rights Law].

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Failure to uphold the principle of non-discrimination does not constitute in itself a crime, but it can be an essential element for the commission of certain war crimes, such as apartheid or other inhuman and degrading practices involving outrages upon personal dignity [art. 85(4)(c) api; see: Apartheid; Outrage upon Personal Dignity]. More broadly, it is also relevant for the crimes against humanity of persecution [art. 5(h) icty Statute; art. 3(h) ictr Statute; art. 7(1)(h), 7(2)(g) icc Statute] and apartheid [art. 7(1)(j), 7(2)(h) icc Statute]. The crime of genocide is the ultimate crime based on discrimination, as, to amount to an act of genocide, the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group is required [art. 4 icty Statute; art. 2 ictr Statute; art. 6 icc Statute]. Aurélie Roche-Mair – the views expressed are those of the author alone and do not necessarily reflect the views of the International Bar Association or any other institution the author is affiliated with Bibliography

R. Gabor, R.J. McGuire, ‘The Principle of Non-Discrimination’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015). J. Pejić, ‘Non-discrimination and Armed Conflict’, 83(841) irrc (2001).

Non-International Armed Conflict. The application of ihl is dependent on the existence of an international or non-international armed conflict [see: ­International Armed Conflict]. As famously held by the icty Appeals Chamber, “[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife” [Decision on the ­Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, para. 119]. This ruling paved the way for a broader extension of ihl to non-international armed conflicts, resulting in a situation where the majority of the rules of customary ihl are considered to be applicable during both types of armed conflict [see: Customary International Humanitarian Law]. As a result, calls have been made to remove the traditional dichotomy between the two types of armed conflicts. However, since not all rules are applicable to both types of conflict and differences persist in the ­criminalisation of conduct in each type, it remains essential to determine whether a situation of armed violence constitutes an international armed conflict or a ­non-international armed conflict. Furthermore, in order to determine whether ihl is applicable or a situation is governed by domestic and/or ihrl rules related to law enforcement [see: International Human Rights Law; Law ­Enforcement], it is also crucial to consider whether a situation consists of

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mere internal d­ isturbances or riots, to which ihl does not apply, or rises to the level of a non-international armed conflict. 1. Definition Ever since ihl became applicable to internal situations of fighting, other than after recognition of belligerency [see: Belligerency], one of the glaring gaps in ihl concerns the question what constitutes a conflict “not of an international character”, as set forth in Common Article 3 GCs [see: Common Article 3]. A  definition of the term was purposely left out, which the icrc considered to be positive [1952 icrc Commentary gci, para. 49]. Indeed, a strict definition formulated in 1949 would most likely not have encompassed all varieties of armed conflicts of a non-international nature that would occur thereafter. That is precisely what happened in 1977, when the material scope of application of apii was defined in a rather strict manner, requiring that at least one of the parties is a State and that the armed opposition group controls part of the territory of this State [art. 1 apii]. In addition, apii only applies to States that are a party to it, while the GCs are universally ratified. The lack of definition notwithstanding, the Final Record of the Diplomatic Conference indicates that many States understood that Common Article 3 GCs would apply at the same (rather high) threshold as the legal framework of belligerency. Whereas it is generally agreed that ihl ought not to apply to mere internal disturbances or riots, which are to be dealt with under domestic law enforcement [see: Internal Disturbances and Tensions], there has been much debate on when violence surpasses such a situation and the threshold of a non-international armed conflict has been reached. At various moments, an independent institute tasked to determine whether the threshold for the application of ihl has been met in particular situations, was called for. H ­ owever, the entity generally considered to be most suitable for such classification, namely the icrc, declined to do so during the negotiations for the 1977 APs [see icrc, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Official: ­Report on the Work of the Conference (1971), paras. 195, 212–218]. The icrc Commentary to the GCs listed “convenient criteria” to guide the application of Common Article 3 GCs in practice [1952 icrc Commentary gci, pp. 49–50]. However, these criteria may actually mislead the application of Common Article 3 GCs, as they were only a compilation of the suggestions made by the delegates at the Diplomatic Conference, and in the end all rejected [S. Sivakumaran, ‘How to Improve upon the Faulty Regime of Internal Armed Conflicts’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (2012), p. 526]. Indeed, the icty rejected the criteria as being too

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

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

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place; (v) the group’s ability to speak with one voice, indicated, for example, by the capacity of the leadership to act on behalf of its members in political negotiations and to conclude cease-fire agreements [Boškoski and Tarčulovski (2008), paras. 194–203]. It should be noted in this regard that the organisation requirement only applies to armed groups, as State forces are assumed to be organised. 3. icc Statute Threshold The division between international and non-international armed conflicts is rigidly preserved in the icc Statute [art. 8 icc Statute; Lubanga, para. 539]. The icc Statute does not include a definition in its war crimes provisions related to non-international armed conflicts. However, with respect to its provision listing “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character” [art. 8(2)(e) icc Statute], it explains that this provision “applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups” [art. 8(2)(f) icc Statute]. Given that this wording differs slightly from the Tadić definition, which refers to “protracted armed violence”, it has been suggested that the icc Statute creates an additional threshold for non-international armed conflicts. In addition to Article 8(2)(c) icc Statute, which criminalises serious violations of Common Article 3 GCs, a separate, higher threshold would apply to Article 8(2)(e) icc Statute, which requires the relevant non-international armed conflict to be protracted and is, yet, lower than the apii threshold [e.g. L. Condorelli, ‘War Crimes and Internal Conflicts in the Statute of the International Criminal Court’, in M. Politi, G. Nesi (eds.), The Rome Statute of the International Criminal Court (2001), pp. 107, 112–113]. However, the prevailing, and better, view is that only one threshold exists, governing both sub-paragraphs (c) and (e) of Article 8 icc Statute [Lubanga, para. 536; Katanga, para. 1183]. 4. Temporal Scope Whereas there has been extensive legal and academic debate, and voluminous case law, as to when a situation of violence qualifies as a non-international armed conflict, the debate has almost solely focused on the start of these armed conflicts. Only recently, the end of the temporal scope of ­non-international armed conflicts has been explored more in depth. In the Tadić Jurisdiction Decision, the icty Appeals Chamber stated that, in case of non-international

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armed conflicts, ihl “applies from the initiation of such armed conflicts […] [until] a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in […] the whole territory under the ­control of a party, whether or not actual combat takes place there” [Tadić (1995), para. 70]. It has since been submitted that this finding sets a too strict standard for the end of a non-international armed conflict. While it is clear that a temporary lull in armed confrontations does not immediately end the non-international armed conflict, it has been argued that such conflicts end when one of the parties no longer fulfils the organisational criterion, or as a result of the armed confrontations between the parties having fallen below the intensity required for a conflict to exist in the first place (the factors as identified by the icty may assist in determining this moment) [R. Bartels, ‘From Jus In Bello to Jus Post Bellum: When Do Non-International Armed Conflicts End?’ in C. Stahn et al. (eds.), Jus Post Bellum: Mapping the Normative Foundations (2014), pp. 301, 303, 309–314; M. Milanović, ‘End of Application of International Humanitarian Law’, 96(893) irrc (2014), pp. 178–181]. However, the icrc remains more conservative and recalls that “[a]n assessment based on the factual circumstances […] needs to take into account the often fluctuating nature of conflicts to avoid prematurely concluding that a non-international armed conflict has come to an end” [2016 icrc Commentary gci, para. 493]. In its view, one should not be too hasty in considering that the conflict has ended to avoid “a ‘revolving door’ classification of a conflict which might lead to legal uncertainty and confusion” [2016 icrc Commentary gci, para. 493]. It therefore advocates the following reading of the wording “peaceful settlement”, as used in Tadić: “the lasting absence of armed confrontations between the original Parties to the conflict […], even though there might still be minor isolated or sporadic acts of violence” [2016 icrc Commentary gci, para. 494]. 5. Geographical Scope As a result of the so-called Global War on Terror [see: Terrorism (International Law)], considerable confusion and debate arose about the geographical scope of non-international armed conflicts and the law applicable during such conflicts, in part due to the reference in Common Article 3 GCs that these conflicts occur “in the territory of one of the High Contracting Parties” (emphasis added), as well as disagreement about the impact of consent in case of hostilities between an organised armed group and a State on the territory of another State [see: Transnational Armed Conflict].

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6. Internationalised Non-International Armed Conflicts When another State intervenes in a non-international armed conflict on the side of the State, the conflict remains non-international, as no two States are pitted against each other. However, if a State intervenes on the side of the armed group, the conflict may internationalise as a result [see: International Armed Conflict]. In this regard, it is important to note that when an armed group that takes up arms against the government of its State is in fact an agent of another State, or its actions are controlled by that other State, the ensuing conflict ought to be classified as an international armed conflict from the very beginning. In such a situation, the intensity threshold required for the existence of a noninternational armed conflict would thus not have to be met, as any use of force by one State against another triggers an international armed conflict. Rogier Bartels – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

D. Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’, in E. Wilmshurst (ed.), International Law and the Classification of Conflicts (2012). R. Bartels, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts’, 91(873) irrc (2009). A. Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (2010). S. Sivakumaran, The Law of Non-International Armed Conflict (2012).

Non-Refoulement. The duty of non-refoulement is a cardinal principle of both international refugee law and ihrl, which prohibits sending anyone to a State where there is a real risk for his/her life, physical integrity, and dignity. In ­international refugee law, this principle is enshrined in Article 33(1) of the 1951 Convention relating to the Status of Refugees (Refugee Convention), which provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Whereas it provides an essential protection from persecution, this principle of n­ on-refoulement is limited in two substantial ways. First, although it also applies to ­asylum-seekers as de facto refugees, it does not concern individuals who, de facto or de jure, do not fulfil the definition of a refugee [see: Refugees]. Second, as set out in Article

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33(2) of the Refugee Convention, the principle is subject to two exceptions: its benefit does not extend to refugees who pose a danger to the security of the host country or who, having been convicted for a particularly serious crime, constitute a danger to the host community. The limits of the refugee law principle of non-refoulement have, however, come to be filled by the progressive development of ihrl [see: International Human Rights Law]. As from the 1960s onward, a human rights principle of non-refoulement has been recognized in international human rights treaties and by their treaty bodies. This principle, which now forms part of customary international law, is explicitly laid down, for instance, in Article 3(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading ­Treatment or Punishment and Article 16 of the International Convention for the Protection of All Persons against Enforced Disappearances. For those ­treaties silent on any such principle, its existence has been interpreted by treaty bodies to be concomitant to States’ positive obligations to ensure respect for the rights enshrined in their respective treaty [e.g. hrc, General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004), para. 12]. Compared to its refugee law counterpart, the principle of non-refoulement in ihrl has a broader scope of application. First, it protects any individuals from being sent to another country where there are substantial grounds for believing he/she would be subject to a real risk of irreparable harm [e.g. General Comment No. 31, para. 12]. It, thus, applies to refugees but also to those falling outside the refugee definition, because, for instance, of the absence of a link between persecution and one of the five discriminatory grounds of the Refugee Convention. Second, as has been affirmed by all human rights treaty bodies, the prohibition of refoulement under ihrl is absolute. Contrary to the principle in refugee law, it applies to any individuals, irrespective of their criminal record or the danger they might pose to the host country and its community [e.g. Views, Tapia Paez v. Sweden, Committee against Torture, paras. 14.4–14.5; and Views, Aemei v. Switzerland, Committee against Torture, para. 9.8]. Similarly to the refugee status, the principle of non-refoulement in ihrl can prohibit the sending of someone to a country where there is a real risk of indiscriminate violence, be it in a situation of armed conflict or not [e.g. Views, Warsame v. Canada, hrc]. However, as set out by the ECtHR, failing any relevant individual circumstances, sending someone to indiscriminate violence is only prohibited in the most extreme cases, that is when indiscriminate violence is of sufficient intensity to create “a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return” [Judgment, Sufi and Elmi v. the United Kingdom, ECtHR, para. 218].

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In times of international armed conflict, ihl also protects protected persons from being transferred “to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs” [art. 45 gciv]. It has also been discussed whether a broader principle of non-refoulement could be established on the basis of States’ positive obligation to ensure respect of the GCs under Common Article 1 [see: Common Article 1]. Although no mention of such principle is made in the 2016 icrc Commentary on Common Article 1 GCs, it recognizes Article 1 as a “living provision” [2016 icrc Commentary gci, para. 172]. It thus remains to be seen whether such a principle will develop on the basis of Common Article 1 GCs and, if so, what its added-value could be, compared to its ihrl counterpart. Céline Bauloz – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

V. Chetail, ‘The Transfer and Deportation of Civilians’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). R.M.M. Wallace, ‘The Principle of Non-Refoulement in International Refugee Law’, in V. Chetail, C. Bauloz (eds.), Research Handbook on International Law and Migration (2014). C.W. Wouters, International Legal Standards for the Protection from Refoulement (2009). R. Ziegler, ‘Non-Refoulement between Common Article 1 and Common Article 3’, in D.J. Cantor, J.-F. Durieux (eds.), Refuge from Inhumanity? War Refugees and International Humanitarian Law (2014).

Non-State Actors; see: Armed Groups Nuclear Weapons. Nuclear weapons are explosive devices that derive their destructive force from the fission or fusion of atomic nuclides [S. Kadelbach, ‘Nuclear Weapons and Warfare’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015)]. They include nuclear fission bombs, which are also referred to as atomic weapons, and fusion bombs, also known as hydrogen bombs or thermonuclear weapons. The destructive power of nuclear weapons derives from the heat, blast and radiation which are released with the detonation. In addition to causing an explosion that is by far more powerful than that caused by conventional weapons, the release of prolonged radiation by nuclear weapons is a unique ­phenomenon. As the icj put it in the Nuclear Weapons case, “[t]he destructive

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power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 35]. Together with chemical and biological weapons, they are one of the categories of weapons of mass destruction [see: Chemical Weapons Convention (1992); Biological Weapons Convention (1972)]. Since the use of atomic bombs in 1945 against the Japanese cities of Hiroshima and Nagasaki during World War ii, there have been discussions on the legality of nuclear weapons under international law. Despite the devastating effects of those nuclear explosions, a number of States have nuclear arsenals and rely on the doctrine of nuclear deterrence. When the icj rendered its opinion in 1996, there was no treaty prohibiting the threat or use of nuclear weapons as such. Only a number of multilateral treaties had been adopted with the goal of preventing nuclear proliferation and testing, while at the same time promoting nuclear disarmament. These include the Treaty on the NonProliferation of Nuclear Weapons (npt) of 1968, to which the nuclear-weapons States are party. In addition, there existed a number of treaties regulating the manufacturing, testing, possession, proliferation, limitation, and reduction of nuclear weapons in specific geographical areas, or by specific States possessing nuclear arsenals. In July 2017, countries meeting at a UN conference on disarmament adopted a Treaty on the Prohibition of Nuclear Weapons (tpnw). This is the first multilateral legally binding instrument prohibiting the use or threat of use of nuclear weapons [art. 1 tpnw]. It was adopted with 122 votes, one abstention and one contrary vote. However, 69 countries stayed out of the negotiations entirely, including all the nuclear-weapon States and nato countries, with the exception of the Netherlands. The treaty will enter into force following ratification, acceptance, approval or accession by 50 States parties. It is unclear whether a rule prohibiting nuclear weapons has crystallized under customary international law [see: Customary International Law]. In the Nuclear Weapons case, the icj held that it was unable to find sufficient opinio iuris to support the formation of such customary rule [Nuclear Weapons, paras. 64–73]. It considered that the resolutions adopted by the unga since 1961 condemning the use of nuclear weapons and requesting member States to conclude a multilateral treaty prohibiting these weapons were evidence of a nascent opinio iuris. However, it concluded that the emergence of a customary rule was hampered by the strong reliance of a number of States on the doctrine of nuclear deterrence. The adoption of a multilateral treaty prohibiting nuclear weapons in July 2017 signals that a large section of the international community shares the conviction that the threat or use of nuclear weapons is

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prohibited. However, adherence to the doctrine of nuclear deterrence (which is the factor that led the icj to conclude against the existence of a customary rule in 1996) still persists. Aside from the existence of specific treaty or customary rules prohibiting nuclear weapons, the threat or use of nuclear weapons must be consistent with the principles and rules of ihl on the use of weapons. There are serious questions as to whether nuclear weapons can be used consistently with the principles of distinction, including the prohibition of indiscriminate attacks, and of proportionality [see: Distinction; Proportionality; Indiscriminate Attacks]. The crux of the matter is whether the effects of nuclear weapons can be limited as required under ihl. The main problems in this respect are their massive destruction capability, and the powerful and long-term radiation generated by nuclear explosions. Even assuming that nuclear weapons can be directed at a specific military objective as required by ihl, if used in a populated area they have the potential to cause death, injury, damage, and destruction to civilians and civilian objects within a radius of kilometres from the epicentre of the blast. Moreover, any residual radioactive material caused by the detonation, which has the potential to negatively affect human health for generations to come, will spread in the atmosphere, and can be spread even further by the winds. Even though the release of radiation is a secondary feature of nuclear weapons, it appears very difficult to control its harmful effects as required by ihl. For similar reasons, nuclear warfare appears hardly compatible with the rules on neutrality [see: Neutrality]. Belligerents have the duty to respect the integrity of neutral States. However, the effects of a nuclear-weapon attack may affect third countries because of the magnitude of the blast or because of nuclear fallout. Broadly speaking, the effects of a nuclear explosion will depend on the size and type of weapon used, the location of the explosion (whether it is in the air, underwater, or on the ground), and weather conditions. Some scholars argue that, in specific circumstances, the use of low-yield tactical nuclear weapons, such as precision-guided warheads with limited destruction capability, would not necessarily be incompatible with the principles of distinction and proportionality. Examples include the selective use of nuclear warheads against enemy troops in remote areas and in certain weather conditions, or against a warship at sea. Other commentators argue that any use of nuclear weapons, including low-yield mini-nukes, would always be in breach of ihl. Their effects, and particularly the spread of radiation, are inherently uncontrollable, long-term, and cause unnecessary suffering to combatants. The icj reached the ambiguous conclusion that the use of nuclear weapons “would generally be contrary to the rules of international law applicable in

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armed conflict, and in particular the principles and rules of humanitarian law” [Nuclear Weapons, para. 105(2)(E)]. However, the Court did not pronounce on the legality of the use of low-yield nuclear weapons, or of nuclear weapons in “an extreme circumstance of self-defence” where “the very survival of a State would be a stake” [Nuclear Weapons, para. 105(2)(E)]. Moreover, the Court’s conclusion on this point appears unconvincing, as self-defence does not preclude the wrongfulness of acts contrary to ihl [see: Ius ad Bellum]. The Court did not tackle the question whether the law of neutrality prohibits causing incidental damage to the territory of neutral States. A strategy of massive retaliation appears incompatible with the core principles of distinction and proportionality. For an attack with tactical nuclear warheads to be lawful, it would need to be shown not only that the principles of distinction and proportionality were strictly observed, but also that the obligation to take precautionary measures was complied with [see: Precautions, Active]. The icj did not address this point in its 1996 Advisory Opinion. The relevant legal test is that it would be impossible to achieve the same military objective by using conventional weapons. This is a high threshold. Furthermore, environmental considerations should be taken into account [see: Environment]. Although the rule in Article 35(3) api arguably does not apply to nuclear warfare, the icj seemed to suggest that States have to factor the effects of a nuclear detonation on the environment into the assessment of what is necessary and proportionate in attacking the enemy [Nuclear Weapons, para. 33]. Another controversial issue is whether nuclear weapons can legitimately be used in response to an attack with nuclear weapons by another State, by way of belligerent reprisal. The icj avoided this question and simply stated that reprisals are governed by the principle of proportionality [Nuclear Weapons, para. 46]. Finally, a use of nuclear weapons contrary to the rules and principles of ihl may give rise to State responsibility and the obligation to make reparation [see: State Responsibility]. Survivors of the nuclear explosions at Hiroshima and Nagasaki brought a claim for compensation against Japan. The Tokyo District Court denied the plaintiffs’ claim. It held that, although the dropping of the atomic bombs on the two Japanese cities was an unlawful act of hostilities, by signing the San Francisco peace treaty Japan validly renounced its right to claim damages from the U.S. In addition, that waiver did not give rise to an obligation on the part of Japan to pay damages to the victims [Judgment, Shimoda et al. v. The State of Japan, Tokyo District Court]. Given the devastating effects of nuclear weapons, a conventional prohibition of their threat or use would be the most effective guarantee against their

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use. The effectiveness of the newly adopted tpnw remains to be seen. Its impact will depend on the number of ratifications, and on whether nuclearweapon States become parties to it. Detailed regulations for the elimination of existing arsenals would also need to be adopted. It is hoped that the treaty will at least help stigmatize nuclear weapons and act as a catalyst for their elimination. Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

D. Akande, ‘Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advisory Opinion of the International Court’, 68 British Yearbook of International Law (1998). S. Casey-Maslen, ‘The Use of Nuclear Weapons under Rules Governing the Conduct of Hostilities’, in G. Nystuen (ed.), Nuclear Weapons under International Law (2014). S. Kadelbach, ‘Nuclear Weapons and Warfare’, R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015). S. Oeter, ‘Means and Methods of Warfare’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013), p. 115.

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

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belligerent occupation pertains specifically to international armed c­ onflicts. Second, ihl confers some rights to the occupying power (without prejudice to ius ad bellum rules), but to do so in relation to insurgents controlling a part of State territory, who are often described as “criminals” or “terrorists”, would amount to conferring some degree of recognition upon them. States are, of course, not prepared to do so. The presence of foreign armed forces on the territory of a State, following an agreement between the host State and the sending State, is not occupation. This also applies to UN peace-keeping forces: their presence in a State is not belligerent occupation, because the presence of these forces results from an agreement with the host State [see: Peacekeeping]. In addition to belligerent occupation, the notion of occupation gained a new meaning in the framework of the decolonization in the 1960s and 1970s: the persistence of colonial domination over a people. This concept stems from Article 1(4) api, which states that the Protocol applies not only to armed conflicts defined in Common Article 2 GCs, but also to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”. The icrc specifies that “[t]he expression ‘alien occupation’ in the sense of this paragraph […] covers cases of partial or total occupation of a territory which has not yet been fully formed as a State” [1987 icrc Commentary api, para. 112 (emphasis added)]. Belligerent occupation and colonial occupation are, thus, factually distinct concepts even if they are governed by the same rules. 1. Applicable Law From a legal point of view, occupation falls under two sets of rules known as ius ad bellum [see: Ius ad Bellum] and ius in bello. Ius ad bellum, i.e. the prohibition of the use of force [art. 2(4) UN Charter], vitiates belligerent occupation that results from a violation of this prohibition and makes it unlawful. Such is the case of the Palestinian territories occupied since 1967 by Israel [e.g. unsc Resolutions 242 (1967), 338 (1973), 476 (1980)] and Nagorno Karabakh (without indicating, however, which was the ­occupying power) [unsc Resolution 853 (1993)]. Although these occupations must stop immediately, the quoted examples show how the obligation of the occupying power to withdraw from the occupied territory is far from being fulfilled. Furthermore, in accordance with the definition of aggression adopted by the unga, “any military occupation, however temporary, resulting from [an] invasion or attack” against a State by the armed forces of another State, qualifies as aggression [unga Resolution 3314 (1974)].

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Whether or not occupation results from a violation of the rules of ius ad bellum, it must comply with the rules concerning ius in bello. This also means that belligerent occupation as a result of a violation of ius ad bellum cannot become legal if this occupation fully complies with ius in bello. The same conclusion may be reached in respect of the persistence of occupation contravening the right of peoples to self-determination [e.g. Advisory Opinion, Western Sahara, icj, para. 162]. It is also noteworthy that occupation resulting from a lawful exercise of the use of force under ius ad bellum does not always comply with ius in bello. This was, for instance, the case after World War ii when the total subjugation of the territory of the defeated powers, the dismantling of their army and their government, as well as the termination of any fighting, removed the precarious character of occupation. Therefore, occupation law was not applied by the allied powers, which occupied Germany and Japan, in order to maintain freedom to manage the occupied territories. Ius in bello concerning occupation is found in the Regulations appended to the 1907 Hague Convention iv (Hague Regulations), gciv, and international human rights instruments, in particular their provisions on non-derogable rights, even in time of war [see: International Human Rights Law]. The Hague Regulations are considered as the expression of international customary law [Judgment, Trial of the Major War Criminals, Vol. 1, p. 63; Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, para. 89]. GCIV also binds all States as customary law. However, international human rights law is not confined to non-derogable rights. After finding that T ­ urkey had “effective overall control over Northern Cyprus”, the ECtHR ­adjudged that Turkey had to secure “the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified” [Judgment, Cyprus v. Turkey, ECtHR, Grand Chamber, para. 77]. This finding may possibly be explained by the fact that Turkey did not make use of the provision allowing part of the rights of the echr to be suspended [art. 15 echr]. Moreover, as the occupying power controls the occupied territory, such ­territory is under its jurisdiction, which becomes part of its obligation to apply human rights to the people under its jurisdiction [Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, paras. 110–112; Judgment, Al-Skeini et al. v. UK, ECtHR, Grand Chamber, paras. 138–139]. 2. Occupation Regulated by ihl Occupation of the territory of a State is not necessarily an occupation in the sense envisaged by the Hague Regulations [see: Hague Regulations (1907)]. Occupation within the meaning of Article 42 Hague Regulations occurs only if the occupied territory is “actually placed under the authority of the hostile

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

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the city of Sevastopol (hereinafter “Crimea”) – by the Russian Federation, and reaffirming the non-recognition of its annexation, […] Urges the Russian Federation: (a) To uphold all of its obligations under applicable international law as an occupying Power” [UNGA resolution 71/205 (2016), Preamble, para. 2]. ihl does not contain well-defined benchmarks to determine the end of occupation. Accordingly, this assessment may be controversial. For instance, an occupying power may formally withdraw from occupied territory but, at the same time, retain considerable control over such territory (e.g. Israel’s withdrawal from the Gaza strip), or an occupying power may remain in the territory concerned upon invitation by a government installed following elections, and/or upon authorisation by the unsc (e.g. Iraq). 3. Obligations of the Occupying Power When an occupation results from a violation of the prohibition of the use of force, the first obligation of the occupying power is to withdraw from the occupied territory. The source of this obligation is not ius in bello, but ius ad ­bellum. Moreover, all attacks on the occupied territory, its population, or their property, even those executed in compliance with ihl, must be repaired [see: State Responsibility]. Furthermore, whether an occupation is legal or illegal, the rights and obligations of the occupying power, which are defined by the Hague Regulations, gciv, and the international human rights instruments it has undertaken to respect, reflect a balance between the military necessities of the occupying State, considerations of humanity aimed at protecting the civilian population, and the interests of the occupied State, which remains the sovereign State of the occupied territory. In this regard, the occupying power must respect the fundamental rights and freedoms of the population of the occupied territory [arts. 47–78 gciv; see e.g. Right to Leave; Transfer by the Occupying Power of its Own Population; Deportation or Transfer of Civilians; Compelling a Protected Person to Serve in the Forces of the Hostile Power; Children; Property, Private; Judges and Public Officials; Humanitarian Relief; Public Health and Hygiene; Religious Convictions and Practices; Trade]. However, the occupying State may take certain measures required by military necessity. For instance, State-owned property and personal goods may be destroyed when it is absolutely necessary [art. 46 Hague Regulations; art. 53 gciv; see: Military Necessity; Property, Private; Property, Destruction and Appropriation/Seizure of]. The demolition of Palestinian homes carried out by Israel in the occupied territories is systematically condemned by the unga and the unsc [e.g. unsc Resolution 2293 (2016), paras. 22 et seq]. They have also been condemned by the icj when Israel built a wall in the Palestinian

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occupied territory [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 132]. The occupying State can also behave “as administrator and usufructuary” of the occupied territory [art. 55 Hague Regulations], but such usufruct may not degenerate into illegal exploitation of natural resources of the occupied State [e.g. unsc Resolution 2293 (2016), paras. 22 et seq; Case Concerning Armed Activities on the Territory of the Congo, paras. 245–250]. Furthermore, the occupying power can enact laws necessary to its own security and the security of its armed forces [art. 43 Hague Regulations; arts. 64–65 gciv; see: Legislation in Occupied Territory], evacuate areas [art. 49 gciv; see: Evacuation], compel protected persons to work [arts. 51–52; see: Workers], requisition items and buildings [arts. 55, 57 gciv; see: Requisitions], collect taxes [arts. 48–49 Hague Regulations; see: Taxation], prosecute protected persons [arts. 66–77 gciv; see: Penal Prosecution; Fair Trial], and subject protected persons “to assigned residence or to internment” [art. 78 gciv; see: Internment; Assigned Residence]. If occupation is the consequence of a lawful use of force, the occupying State may take the “treasure” (gold, currencies, etc.) of the occupied State, its military material, and whatever is useful for the war effort [art. 53 Hague ­Regulations]. However it is questionable whether this rule remains compatible with the current nature of international law, which is based on peacekeeping and the peaceful settlement of international disputes [art. 1 UN Charter]. Eric David – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

E. David, Principes de Droit des Conflits Armés (2012), at 2.142, 2.414, 2.450 et seq. V. Koutroulis, Le Début et la Fin de l’Application du Droit de l’Occupation (2010).

Orders. An order is an authoritative command and, in military terms, “a communication that is written, oral, or by signal, which conveys instructions from a superior to a subordinate” [United States Headquarters Department of the Army, Army Planning and Orders Production, Field Manual 5.0 (2005), p. G-4]. Orders may be characterized by heterogeneous features. They may be issued orally, in writing, or by signal. They may be general (meaning that the addressee is not explicitly named, nor is the person or object to be acted upon), or they can be direct and specific. They may require to be implemented una tantum, or they may be of indefinite duration. Moreover, orders can be issued to guide the conduct in combat operations, or they may address a ­plethora of other issues including, for example, instructing on the carrying of uniforms by members of Armed Forces.

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Irrespective of those variants, orders are identified on the basis of their substance, i.e. the issuance of a mandatory dictate. Typically, orders trigger, indeed, the duty for the addressee(s) to execute the command or, otherwise, to respond for failure to comply. In light of the binding nature of orders, it is established that commanders and other superiors should be held accountable for war crimes committed, or attempted to be committed, in pursuance of orders issued by them [art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv; rule 152 icrc Customary ihl Study; art. 25(3)(b) icc Statute; art. 7(1) icty Statute; art. 6(1) ictr Statute; art. 6(1) scsl Statute]. Moreover, superior orders may be considered in mitigation of the punishment to be inflicted on a subordinate [art. 7(4) icty Statute; art. 6(4) ictr Statute; art. 6(4) scsl Statute] and, exceptionally, they may be validly adduced as a defence if some conditions are satisfied, among which the fact that the order received was not manifestly unlawful [see: Superior Orders, Defence of]. In addition to providing for superiors’ responsibility for the issuance of a command to commit a war crime, ihl also expressly restricts commanders’ ­freedom to issue some orders by proscribing orders to give no quarter [art. 40 api; art. 4(1) apii; rule 46 icrc Customary ihl Study; see: Quarter] and to displace the civilian population for reasons related to the conflict [art. 17(1) apii; rule 129(B) icrc Customary ihl Study; see: Deportation or Transfer of Civilians]. Furthermore, ihl establishes a duty for some actors to obey orders issued outside the hierarchical line of command of a party to the conflict. This is the case, among others, of medical and religious personnel that, when captured, is required to continue fulfilling its duties under the orders of the adverse party [art. 30(2) gci; see: Medical Personnel; Religious Personnel] and of prisoners of war and civilians internees, who are subjected to the laws, regulations and orders issued by the detaining power [art. 82(1) gciii; art. 117 gciv; see: Internment, Deprivation of Liberty, Treatment] that must, indeed, be posted or communicated to them in a language that they understand [art. 41(2) gciii; art. 99(3) gciv]. Finally, ihl requires the High Contracting Parties to give orders and instructions to ensure observance of its precepts [art. 80(2) api]. Maria Giovanna Pietropaolo – the views expressed are those of the author alone and do not necessarily reflect the views of Diakonia Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005). U.S. Headquarters Department of the Army, Army Planning and Orders Production, Field Manual 5.0 (2005).

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Outrage upon Personal Dignity. Outrage upon personal dignity (in particular, humiliating and degrading treatment, enforced prostitution, and any form of indecent assault) is prohibited in international armed conflict under Article 75(2)(b) api [see: Humiliating and Degrading Treatment; Rape and Sexual Violence]. Article 85(4)(c) api further qualifies “practices of ‘apartheid’ and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” as grave breaches [see: Grave Breaches; Apartheid; Non-Discrimination]. In non-international armed conflict, it is forbidden under Common Article 3 GCs (in particular, humiliating and degrading treatment) and under Article 4(2)(e) apii (in particular, humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault). Generally, the wording “in particular” used by the different provisions simply denotes that the acts specifically mentioned are illustrative, explicitly prohibited in a non-exhaustive list of conduct implicitly proscribed. Outrage upon personal dignity also constitutes a war crime under the icc Statute [art. 8(2)(b)(xxi), 8(2)(c)(ii)], the ictr Statute [art. 4(e)], and the  scsl  Statute [art.  3(e)]. Although not explicitly mentioned in the icty Statute, outrage upon personal dignity was prosecuted by virtue of the nonexhaustive list of violations of the laws and customs of war included in Article 3 icty Statute [see e.g. Judgment, Kunarac et al., icty, Trial Chamber, para. 498]. The prohibition against outrage upon personal dignity is today considered part of customary international law [rule 90 icrc Customary ihl Study]. Outrage upon personal dignity can be defined as “acts which, without directly causing harm to the integrity and physical and mental well-being of persons, are aimed at humiliating and ridiculing them, or even forcing them to perform degrading acts” [1987 icrc Commentary api, para. 3047]. It is an offence that “can be committed in one single act [or] […] result from a combination or accumulation of several acts” [2016 icrc Commentary gci, para. 665]. Further, while the humiliation or degradation must be “real and serious”, it need not be lasting [2016 icrc Commentary gci, para. 666]. The assessment of the seriousness of the act should not be based only on subjective criteria related to the sensitivity of the victim, but also on objective criteria related to the gravity of the act. In particular, “the humiliation to the victim must be so intense that the reasonable person would be outraged” [Judgment, Aleksovski, icty, Trial Chamber, para. 56]. However, no specific ­intent on the part of the perpetrator to humiliate, ridicule or degrade the victim is required [Judgment, Aleksovski, icty, Appeals Chamber, para. 27]. In light of the above “outrages upon personal dignity constitute the least serious type of ill-treatment under ihl” [M. Nowak, ‘Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2015),

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p. 400]. The icrc however stresses that the violation “has to be significant in order to be distinguished from a mere insult” [2016 icrc Commentary gci, para. 667]. The icc Elements of Crimes clarify that the offence can be perpetrated against dead persons and the victims need not personally be aware of the humiliation; in addition, the cultural background of the victim should be taken into account [fn. 49, 57 icc Elements of Crimes]. Ania Salinas – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

R. Arnold, S. Wehrenberg, ‘Paragraph 2(b)(xxi): Outrages upon Personal Dignity’, in O. Triffterer, K. Ambos (eds.), The Rome Statute of the International Criminal Court – A Commentary (2016). K. Dörman, Elements of War Crimes under the Rome Statute of the International Criminal Court (2006). E. La Haye, ‘Article 8(2)(b)(xxi)-Outrages upon Personal Dignity’, in R.S. Lee (ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence (2001). M. Nowak, ‘Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2015).

Oxford Manual on the Laws of War on Land (1880); see: Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907) Participation in Hostilities; see: Direct Participation in Hostilities; Combatants; Civilians Peace Treaty. The words “peace treaty” are used to refer to an agreement intended to end hostilities between warring parties in the context of both international and non-international armed conflicts. Peace treaties are different to armistices [see: Armistice] or ceasefires, and are usually the result of a formal peace process involving negotiations between the parties to the conflict that are sometimes assisted by neutral international actors, such as the UN. Modern peace treaties contain provisions that are both backward and forward looking. As a first priority, their purpose is to put an end to the ­hostilities between the parties, by containing provisions on ceasefire, demobilisation, disarmament, reintegration, and/or withdrawal of troops. Secondly, ­modern peace agreements may provide solutions to some of the consequences of the

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armed conflict, dealing with issues such as prisoner release [see: Release], amnesties [see: Amnesty], reconciliation [see: Transitional Justice], and reparations [see: Reparations]. Typically, peace agreements also set the agenda for the future of the country and may contain forward-looking undertakings on human rights, development, judicial and institutional reform, and power-sharing. In some instances, peace agreements include detailed rules of constitutional reform. Probably the most high profile modern example of a peace agreement is the historic agreement that was recently brokered between the Colombian government and the farc, after fifty-two years of armed conflict. In the past few years, increasing attention has been given to ius post bellum, the body of substantive rules and principles of procedural fairness governing transitions from conflict to peace, the substance of which are found in many peace agreements. Moreover, in recent years, there have been deliberate efforts to ensure women’s participation in all aspects of peace processes and peacebuilding. The unsc has acknowledged the disproportionate impact of violent conflict on women and calls upon all actors, when negotiating and implementing peace agreements, to adopt a gender perspective [unsc Resolutions 1325 (2000) and 1889 (2009)]. The Resolutions recognise that peace agreements can provide an important opportunity to remedy gender inequality, through constitutional, electoral, and judicial reform. Another characteristic of modern peace treaties is that, while such instruments used to contain wide-reaching amnesties, it is widely recognised that it is no longer possible to provide amnesties for certain international crimes (e.g. grave breaches) committed during the course of an armed conflict. While peace agreements drafted at the close of inter-State armed conflicts [see: International Armed Conflict] clearly have the status of treaties under international law, there is a continuing lack of clarity about the legal status of peace agreements brokered at the end of non-international armed conflicts [see: Non-International Armed Conflict]. Indeed, there are differing academic views as to whether agreements between States and armed groups can be the source of binding international legal obligations. As a matter of law, it would seem possible to create legally binding obligations in circumstances where the parties intend to be bound by the agreement and intend the agreement to contain international law obligations, rather than domestic obligations. Lack of consensus on this point explains why some scholars prefer to use the words “peace agreements” when referring to agreements brokered at the end of non-international armed conflicts. Katharine Fortin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

C. Bell, ‘Peace Agreements: Their Nature and Legal Status’, 100(2) ajil (2006). R.C.H. Lesaffer, ‘Peace Treaties and the Formation of International Law’, in B. ­Fassbender, A. Peters (eds.), Oxford Handbook of the History of International Law (2012).

Peacekeeping. Peacekeeping operations are defined here as operations undertaken for the purpose of maintaining international peace or contributing to a peaceful s­ ettlement of a conflict, which are governed by the guiding principles of consent of the parties, impartiality and limited use of force, in the context of peacekeeping operations undertaken by the UN. These principles are also ­applied in operations by other organizations so far as possible. Such operations may be undertaken by the UN, by regional organizations, or arrangements operating with the consent of the Host State and which usually operate under a UN mandate. In view of the consensual nature of such operations, the use of force will normally be restricted to self-defence and in some cases the mandate may provide for the defence of civilians who are directly threatened with violence. Operations undertaken under a Chapter vii mandate of the unsc, to enforce or impose the peace, whereby UN Forces are or become a party to an armed conflict, will not be discussed here. In view of the abovementioned consensual nature of the operations and the requirement to maintain impartiality and the restriction of force, in principle, to self-defence, the presumption is that peacekeeping missions are not parties to any ongoing armed conflict, and are consequently civilians for the purposes of applying ihl, in so far as it is relevant. Indeed, members of peacekeeping missions have a protected status under treaty law [1994 Convention on the Safety of United Nations and Associated Personnel] and under customary ihl [rule 33 icrc Customary ihl Study]. Deliberate attack on members of a peacekeeping operation, for as long as they are entitled to protection, is additionally characterized as a war crime under the icc Statute, in both international and non-international armed conflict [art. 8(2)(b)(iii), 8(2)(e)(iii)]. The applicability of ihl to members of peacekeeping missions is a question that has become steadily more important with the evolution in peacekeeping operations from traditional oversight of a ceasefire agreement (that characterized most operations in the 1950s and 1960s) to the present, more complex, types of operations that often take place in an unstable environment, and may include tasks that are difficult to reconcile with impartiality and limited use of force. The unsg issued an internal directive that acknowledged the applicability of principles of ihl to peacekeeping missions and personnel, in situations where they became involved in hostilities as combatants, without prejudice to

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their protected status so long as they are entitled to it [unsg, Bulletin on Observance by United Nations Forces of International Humanitarian Law (1999)]. However, the Bulletin and its applicability are unclear in some respects. For example, the Bulletin states that the principles of ihl are applicable without acknowledging the applicability of rules of customary ihl. It also implies that the applicability of the Bulletin is limited temporally and geographically for the duration of a particular engagement. Whatever the status of the Bulletin, it does not affect either the protected status of peacekeeping missions and their personnel, for as long as they are entitled to such protection, nor the applicability of ihl under conventional and customary law to them, if the threshold conditions for the applicability of ihl are met [see: International Armed Conflict; Non-International Armed Conflict]. Consequently, while incidental and sporadic use of force in selfdefence by peacekeeping personnel in accordance with their mandate will not normally trigger the applicability of ihl, more systematic and intensive use of force against an organized armed group would trigger the applicability of ihl relating to non-international armed conflict in the same way it would apply to other actors. Use of force beyond mere personal self-defence against State armed forces would trigger the ihl regime for international armed conflict. As a subject of international law, the UN and most organizations conducting peacekeeping operations would be subject to customary ihl relevant to the type of conflict and situation in question, in addition to the obligations that were incumbent upon each national contingent, pursuant to the sending State’s treaty obligations [see: International Organizations]. Such obligations would apply geographically and temporally in the same way they do to any other party to an armed conflict. Terry Gill – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (2005). unga, Convention on the Safety of United Nations and Associated Personnel (1994). unsg, Bulletin on Observance by United Nations Forces of International Humanitarian Law (1999).

Penal Prosecution. Penal prosecution or criminal prosecution refers to either domestic or international trial of individuals for conduct criminalized in national legislation or by international treaty or customary law [see: Penal Sanctions and Legislation].

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Penal prosecution could be undertaken against detained military personnel or civilians. Common Article 3 GCs affords “all the judicial guarantees which are recognized as indispensable by civilized peoples” to all detainees in international and non-international armed conflicts [see: Common Article 3]. These principles are reiterated in the aforementioned grave breaches provisions. With respect to prisoners of war, such guarantees are found in Articles 82–108 gciii, as well as in Article 75 api, which contains more enhanced guarantees and mirrors Article 14 iccpr. Under gciv, penal prosecution of civilians should only be carried out by “properly constituted, non-political military courts” that “sit in the occupied country” [art. 66 gciv]; detailed provisions governing penal proceedings in such courts are then laid down from Article 71 gciv onwards. These protections are supplemented by Article 6 apii, applicable in non-international armed conflicts, which leaves intact the right of the established authorities to prosecute members of the armed forces and civilians who may have committed an offence related to the armed conflict. It also reiterates the safeguards contained in gciii and gciv and offers additional ihrl protections encompassed by Article 15 iccpr [1987 icrc Commentary apii, para. 4597]. The complex interaction of rules of ihl and ihrl governing penal prosecution of individuals in times of armed conflicts brings many practical difficulties, particularly where it concerns the application of these rules to non-State actors, which are involved in the overwhelming majority of modern armed conflicts. The lack of express authority in ihl for such groups to undertake penal prosecutions might open the door to administrative detention, summary executions, and other violations of ihl and ihrl. Penal prosecution in international law traditionally refers to individual offenders, neglecting a recent turn in ihrl to recognizing the responsibility, and possible criminal complicity, of corporate entities, private military companies [see: Private Military and Security Companies], and other organizations in perpetrating mass atrocities. The Human Rights Council’s so-called Ruggie Principles spell out ihrl obligations of business enterprises [ohchr, Guiding Principles on Business and Human Rights – Implementing the United Nations “Protect, Respect and Remedy” Framework (2011)]. The icrc has also endorsed the view that armed opposition groups “incur responsibility for acts c­ ommitted by persons forming part of such groups”, admitting however that “the ­consequences of such responsibility are not clear” [rule 149 icrc Customary ihl Study]. The June 2014 Protocol amending the statute of the African Court of Justice and Human Rights, once it enters into force, will provide ­jurisdiction to the reconstituted African Court to prosecute corporations for international crimes, including war crimes [art. 46C(1) Draft Protocol on

Penal Sanctions and Legislation

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Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights]. Ilya Nuzov – the views expressed are those of the author alone and do not ­necessarily reflect the views of the International Federation for Human Rights Bibliography

P. Rowe, ‘Penal or Disciplinary Proceedings Brought against a Prisoner of War’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).

Penal Sanctions and Legislation. This expression refers to the modes of punishment of individuals for international crimes and the laws of criminal law that enable the prosecution and punishment of international criminal offenses [see: Penal System; International Criminal Law]. Penal legislation of international crimes evolved both domestically and internationally in the aftermath of World War ii. Mass violations of the laws and customs of war, the absence of international regulations, and scant domestic legislation on the subject of international crimes prompted the majority of States to adopt special laws for the repression of crimes committed by the enemy against their civilian population and prisoners of war [1960 icrc Commentary gciii, p. 618]. At the international level, the charters of both the imt and imtfe set out the law and procedure for the trials of individuals responsible for war crimes, crimes against humanity, and aggression, accompanied by provisions for penal sanctions. These developments led to increased efforts by States and the icrc to establish an effective system of repression of international violations [2016 icrc Commentary gci, paras. 2830–2837]. The 1949 GCs for the first time included common provisions criminalizing certain violations of the Conventions, called “grave breaches” [see: Grave Breaches]. The grave breaches regime requires Contracting States to prosecute or extradite the offenders and “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches” [art. 49 gci; art. 50 gcii; art. 129 gciii; art. 146 gciv]. The obligations to enact legislation providing “effective penal sanctions”, which must be fulfilled during peacetime, was designed to provide an innovative, “watertight mechanism” which would ensure the effective prosecution of alleged perpetrators of war crimes [2016 icrc Commentary gci, paras. 2819–2839]. To be “effective”, the penal sanctions enacted should “specify the nature and extent of the penalty for each infraction, taking into account the principle of due proportion between the severity of the punishment and the gravity of the

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offence” [1952 icrc Commentary gci, p. 364]. That is, the penalty must be the most appropriate one for the specific illegal act. Penal sanctions must also be adequately disseminated in order to play a sufficiently dissuasive function [2016 icrc Commentary gci, para. 2842]. With respect to implementing legislation, it should provide for sanctions issued by judicial institutions, be they military or civilian, that will usually lead to the imprisonment of the perpetrators, or to the imposition of fines [2016 icrc Commentary gci, para. 2841]. The implementing legislation must also establish a jurisdictional basis for the prosecution of all grave breaches. Since Article 49(2) gci, and its equivalent in other GCs, requires States parties to prosecute all persons who have committed or ordered the commission of grave breaches, regardless of their nationality, it is commonly viewed that universal jurisdiction over grave breaches must be included in the implementing legislation [2016 icrc Commentary gci, paras. 2846–2847]. According to some commentators, however, the obligation is complied with regardless of the characterization in the internal order of the offense as “a grave breach” of the GCs, and the latter do not contain a universal jurisdiction requirement [P. Gaeta, ‘Grave Breaches of the Geneva Conventions’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015), pp. 621–622]. In light of the great variation of legislative policy with regard to penal sanctions, the punishment that the individual offender faces for a penal offense will differ from State to State. The lack of predictability is augmented by a great divergence of sentences imposed by national courts and those passed by ­international or hybrid tribunals for similar crimes [see: Hybrid or Internationalised Tribunals]. Due to the extraordinary nature of some atrocities, difficulties arise as to assessing the effectiveness of penal sanctions, and their ability to achieve the deterrent, retributive, rehabilitative, or expressivist functions usually attributed to criminal law. These difficulties are amplified in transitional justice contexts, where the goals of justice must be balanced with the need for reconciliation and the political desirability of amnesties [see: Transitional Justice]. Some scholars argue that the focus of penal sanctions should turn to non-traditional means, such as reparations and declaratory relief [see: Reparations], to address the collective, extraordinary nature of certain international crimes [see e.g. M.A. Drumbl, Atrocity, Punishment, and International Law (2007)]. Ilya Nuzov – the views expressed are those of the author alone and do not necessarily reflect the views of the International Federation for Human Rights Bibliography

P. Gaeta, ‘Grave Breaches of the Geneva Conventions’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).

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Y. Sandoz, ‘The History of the Grave Breaches Regime’, 7(4) jicj (2009).

Penal System. Penal system refers to the laws, institutions, policy, and practice that govern imprisonment or any other form of punishment of offenders for violations of penal law. On a domestic level, these institutions regulate ­every aspect of a State’s activities, beginning with the investigation of facts, the prosecution of a suspected perpetrator, the enforcement of sentences, and the reintegration of a convicted offender into society. In the context of international criminal law, penal systems address all issues related to the punishment of individuals by international criminal courts, including the imposition and execution of sentences, imprisonment, transfer, and release of detainees, as well as non-punitive rehabilitation programs. Modern day penal systems are justified by several rationales for punishment, among them rehabilitation, retribution, deterrence, incapacitation, and expressivism. One of the early aims of penal systems, i.e. deterrence, was based on the assumption that individuals are dissuaded from committing crimes for fear of punishment. Although deterrence remains one of the more prevailing theories justifying punishment, its capability of fulfilling the assigned function has been extensively questioned. Retribution is understood to mean that criminals should be punished because they deserve it, and this is the dominant stated objective of punishment of perpetrators of crimes at both the domestic and international level. According to the proponents of the rehabilitative rationale, a desire to normalize the offender started to increase with the development of prisons, turning penal institutions from moral and ritualistic into rational and professionalized institutions. Expressivists view the penal system as an institutionalized show of collective moral outrage and the passing of sentences as formalized rituals through which a society conveys disapproval. The international penal system draws on different goals of punishment that coexist in domestic systems, and thus grounds institutions in norms derived from the interaction of multifarious elements of domestic and international law. The positive law of international criminal tribunals, including provisions governing penal sanctions, might be based on an international treaty (e.g. icc), a unsc Resolution (e.g. icty and ictr), or an agreement between the UN and a member State (e.g. stl), but its substantive provisions will reflect general principles of domestic law transposed on the international plain that have elements of both common and civil law domestic systems [see: Hybrid or Internationalised Tribunals; International Criminal Tribunals]. The international penal system also invariably depends on States for the enforcement of sentences.

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In the practice of international criminal tribunals, the most prominent rationales for punishment are retribution and deterrence [see e.g. Judgment, Simić, icty, Trial Chamber, para. 1059; Judgment, Rutaganda, ictr, Trial Chamber, para. 456]. The role of rehabilitation and incapacitation within the practice of international sentencing is of lesser significance [see e.g. Judgment, M. Nikolić, icty, Trial Chamber, paras. 85, 93]. While significant study of penal systems has been conducted on the domestic level, this field of research has only recently started to crystallize as a subset of international criminal law. This is attributable to the relatively recent emergence of international criminal law and the attendant penal institutions capable of imposing and carrying out of sentences. The emphasis of domestic penal systems on deterrence, retribution and rehabilitation has overshadowed the expressivist function, which might be more suitable for addressing the collective and extraordinary nature of international crimes. Ilya Nuzov – the views expressed are those of the author alone and do not necessarily reflect the views of the International Federation for Human Rights Bibliography

M. Drumbl, Atrocity, Punishment, and International Law (2007). D. Garland, Punishment and Modern Society: A Study in Social Theory (1990). R. Mulgrew, D. Abels (eds.), Research Handbook on the International Penal System (2016). D. Rothman, N. Morris, Oxford History of the Prison (1996).

Perfidy. Perfidy is defined in Article 37(1) api as “[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. Perfidy is considered a more serious violation of ihl due to the “specific intent to breach the adversary’s confidence”, which sets perfidy apart from other breaches of ihl [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), p. 223]. According to State practice reflected in military manuals and national legislation, the prohibition of perfidy has become a rule of customary international law applicable in both international and non-international armed conflicts [rule 65 icrc Customary ihl Study]. On the basis of this practice, the icrc notes “that killing, injuring or capturing by resort to perfidy is illegal under customary international law but that only acts that result in serious bodily ­injury, namely killing or injuring, would constitute a war crime” [Henckaerts, ­Doswald-Beck, p. 225]. In fact, although the drafters opted

Perfidy

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to use the word “treacherously” instead of perfidy, the icc Statute reflects these exact considerations and explicitly recognizes that “treacherously killing or wounding” individuals would constitute a war crime in both international and ­non-international armed conflicts [art. 8(2)(b)(xi), 8(2)(e)(ix) icc Statute]. api provides examples of perfidy, namely “(a) the feigning of an intent to negotiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-combatant status, and (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict” [art. 37(1) api] or “the perfidious use […] of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the” GCs or api [art. 85(3)(f) api]. This list is not exhaustive and only provides guidance. Indeed, perfidy can be committed beyond incidents causing death or injury. For instance, it has been found that obliging a person to call on men “to surrender, on the grounds that icrc was present”, in “a closed military zone into which no one, including the icrc, was permitted to enter” qualifies as perfidy [UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict (2009), para. 1106]. Other examples include using an ambulance to carry weapons, ammunitions, or soldiers [R. Kolb, Advanced Introduction to International ­Humanitarian Law (2014), pp. 40–42], feigning special protection to target the enemy (for e­ xample, by wearing the outfit of an icrc delegate), or, under a certain ­interpretation, using non-combatants as shields [M. Muhammad, ‘The Layha for the Mujahideen: an Analysis of the Code of Conduct for the Taliban fighters under Islamic law’, 93(881) irrc (2011), p. 100; contra: S. Bouchié de Belle, ‘Chained to Cannons or Wearing Targets on their T-Shirts: Human Shields in International ­Humanitarian Law’, 90(872) irrc (2008); see: Human Shields]. It is critical to differentiate between perfidy and ruses of war. Whilst both actions are defined under Article 37 api, ruses of war are permitted under international law, at least as long as they do not infringe any rule of ihl [rule 57 icrc Customary ihl Study; see: Ruses of War]. The central point of difference is that ruses of war attempt to mislead an adversary or to induce him to act recklessly. However, the distinction may not be apparent. For instance, it has been claimed that disguising a military objective as a civilian object and using it for an attack constitutes perfidy as opposed to a permissible ruse of war [R. Bartels, ‘Killing with Military Equipment Disguised as Civilian Objects is Perfidy’, Just Security (2015)]. In particular, it has been underlined that “ihl affords protection to both civilians and civilian objects”, with no distinction made between objects provided with special protection

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(such as an ambulance) and civilian objects provided with regular protection (such as a car). Conversely, others refuse to equate feigning civilian status with feigning civilian-object status [K.J. Heller, ‘No, Disguising Military Equipment as Civilian Objects to Help Kill isn’t Perfidy’, Just Security (2015)]. In particular, it is argued that, under conventional and customary ihl, at least five military practices of civilian disguise (camouflage, ambush, cover, boobytraps and landmines) [see: Camouflage; Booby-Traps; Landmines] are permitted and that “making a military object […] appear to be a civilian object” is a ­permissible ruse of war, not a prohibited act of perfidy, as long as the civilian object in question does not receive special protection under ihl” [K.J. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’, 91(517) International Law Studies (2015), p. 518]. Gerardo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

R. Bartels, ‘Killing With Military Equipment Disguised as Civilian Objects is Perfidy’, Just Security (2015), Part i and Part ii. K.J. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’, 91(517) International Law Studies (2015). R. Kolb, Advanced Introduction to International Humanitarian Law (2014), pp. 40–42. N. Melzer, International Humanitarian Law. A Comprehensive Introduction (2016), pp. 108–109. M. Muhammad, ‘The Layha for the Mujahideen: an Analysis of the Code of Conduct for the Taliban Fighters under Islamic Law’, 93(881) irrc (2011). V. Rusinova, ‘Perfidy’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012).

Physical Mutilation. Mutilation is the “severe damage to someone’s body especially when part of it is cut or torn off” [Oxford Advanced Learner’s Dictionary]. As the definition suggests, mutilation entails an act of physical violence. Hence, the terms “mutilation” and “physical mutilation” referred to in the ihl provisions proscribing such practice may be considered equivalent. Examples of acts amounting to mutilation are the amputation, removal or disabling of limbs, organs and other body parts, including sexual organs, as well as the disfiguring of a person. Under ihl, the prohibition against mutilation aims at the fulfilment of an essential objective of this body of law, namely to ensure humane treatment to persons affected by armed conflicts [see: Inhuman Treatment]. The prohibition against mutilation is, indeed, a long-standing rule of ihl, which already

Physical Mutilation

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a­ ppeared in the 1863 Lieber Code, that has attained customary status and that represents a fundamental guarantee for civilians and persons hors de combat [art. 56 Lieber Code; common art. 3(1)(a) GCs; art. 13(1) gciii; art. 32 gciv; art. 11(2)(a) api; art. 75(2)(a)(iv) api; art. 4(2)(a) apii; rule 92 icrc Customary ihl Study]. As the rationale of the prohibition suggests, the proscription protects only living human beings and does not extend to the mutilation of corpses that is, however, also prohibited under ihl [rule 113 icrc Customary ihl Study] and that further amounts to an outrage upon personal dignity [see: Outrage upon Personal Dignity]. In conformity with the ratio of the prohibition, mutilations can be exceptionally justified for medical reasons. It is possible, indeed, to carry out an act of mutilation in the interest of the health of the person undergoing the procedure, for example by amputating a gangrenous limb, or removing the appendix in case of appendicitis. Such medical procedures are permitted under ihl only if justified by the need to improve the state of health of the person undergoing treatment, and if carried out in compliance with generally accepted medical standards [art. 11 api; see: Removal of Tissue or Organs; Medical Standards, Generally Accepted]. The icc Elements of Crimes for the war crime of mutilation suggest that the effects of such act should have a permanent nature. This element should be interpreted as indicating that the effects of an act of mutilation should be longlasting, remain unchanged indefinitely and not that they must necessarily last forever. Therefore, for example, mutilations causing injuries that may be cured by surgery would fall under the prohibition. The breach of the ihl prohibition against mutilation may amount to a socalled “medical grave breach” [art. 11(4) api]. Such conduct may also fall under the grave breach of “acts wilfully causing great suffering or serious injury to body or health” under the GCs [see: Wilfully Causing Great Suffering or Serious Injury to Body or Health]. Mutilation has also been broadly recognized as a war crime subjected to international criminal prosecution [art. 8(2)(b)(x), 8(2)(c)(i), 8(2)(e)(xi) icc Statute; art. 4(a) ictr Statute; art. 3(a) scsl Statute]. Maria Giovanna Pietropaolo – the views expressed are those of the author alone and do not necessarily reflect the views of Diakonia Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 229–233. A. Zimmermann, R. Geiss, ‘Paragraph 2(b)(x): Prohibition of Physical Mutilation’, in O. Triffterer, K. Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary (2016).

560

Pillage

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

Piracy

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There is a growing body of literature on illegal exploitation and trade of natural resources by commercial entities in the context of modern conflicts. A number of authors argue that corporate entities should be held accountable under the war crime of pillage. This can be the case in prolonged situations of occupation, where corporations may exploit the natural resources of the occupied territory beyond the needs of the occupying power, thus altering the temporary nature of the occupation. Helen McDermott – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

P.J. Keenan, ‘Conflict Minerals and the Law of Pillage’, 14(2) Chi. J. Int’l L. (2014). J. Stewart, ‘Corporate War Crimes: Prosecuting Pillage of Natural Resources’, Open Society Foundations (2010). L. van den Herik, D. Dam-de Jong, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation during Armed Conflict’, 22(3) Criminal Law Forum (2011).

Piracy. The international law applicable to the repression of piracy is set forth in the UN Convention on the Law of the Sea (unclos). The unclos provisions addressing piracy represent customary international law and are, therefore, binding regardless of whether a State is party to the Convention. Piracy is defined in Article 101 unclos as any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). To constitute piracy, acts of violence must be motivated by “private ends”. Conversely, if acts of violence are motivated by public ends, i.e. State objectives, they are by definition excluded from the unclos provisions related to piracy. According to Article 100 unclos, all States have a duty to cooperate in the repression of piracy. Further, States have universal jurisdiction to repress piracy, meaning that enforcement actions on the high seas may be carried out by every State, regardless of the nationality of the suspected offender, pirate ship/ aircraft, victim or victim ship/victim aircraft [art. 105 unclos]. The courts of the seizing State may decide, based on municipal (domestic) law, the penalties

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Piracy

to be imposed, and may also determine the action to be taken with regard to the ships, aircraft, or property, subject to the rights of third parties acting in good faith. Enforcement measures in respect of piracy under unclos are an exception to the principle of exclusive flag State jurisdiction over ships on the high seas, as provided by Articles 92 and 94 of unclos. However, enforcement powers are limited to the high seas and do not extend to pursuing pirates into foreign territorial waters without the coastal State’s consent. Furthermore, Articles 107 and 110 unclos provide a right of interdiction of suspected pirate ships. In particular, warships or military aircraft, or other ships or aircraft, clearly marked and identifiable as being on government service and authorized to that effect, may (a) verify the ship’s right to fly its flag; and (b) board and examine the ship. Conversely, there is no such right of visit onto warships and State-owned ships on non-commercial service under Articles 95 and 96 unclos. Warships or other ships on government service have complete immunity from all but the flag State [arts. 29, 32, 95 unclos]. In principle, within the context of an armed conflict, the GCs, APs, and customary ihl govern the conduct of warships. However, when a warship encounters a non-State actor engaged in a non-international armed conflict or an international armed conflict (in the latter case assuming that the non-State actor acts on behalf of a State), ihl and unclos may apply concurrently to the non-State actor. For example, due to the nexus with an armed conflict, the non-State actor at sea may be a legitimate military target [see: Military Objectives]. If, however, the non-State actor becomes shipwrecked, gcii protections must be afforded. Regardless of the nature of the conflict, piracy, as defined by unclos, could serve as the basis of charges if all of the elements are met, including that the non-State actor perpetrated the act for private ends. Likewise, the non-State actor’s ship and property may be seized [art. 105 unclos]. Complications arise with regard to terroristic purposes and non-State actors. There is some reason to consider acts committed for political purposes, e.g. terrorism, to be fully excluded from the definition of piracy [Harvard Research in International Law: Draft Convention on Piracy (1932)]. Nevertheless, there is disagreement on this point [Ninth Circuit Review, Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3D 940 (2013); see also: H.E. J.L. Jesus, ‘Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects’, 18 International Journal of Marine and Coastal Law (2003), pp. 378–379]. The Convention for the Suppression of Unlawful Acts and against the Safety of Maritime Navigation (sua Convention) and associated protocols are specifically aimed at terrorist acts committed on the high seas against fixed platforms

Precautions, Active

563

on the continental shelf, or affecting multiple States’ territorial seas. The sua Convention permits States to create offences for the attack, seizure, or other acts of violence directed at or on ships at sea [art. 3 sua Convention]. The Convention further encourages the prosecution of such acts and inter-State cooperation in the sharing of evidence and extradition of suspected offenders. Only State parties to the sua Convention may invoke its enforcement powers. However, there are now 166 States party to the sua Convention, representing 95% of the world’s ship tonnage, lending some weight to the view that the Convention may constitute customary international law. Like unclos, the  sua Convention expressly does not apply to, or affect the immunities of, warships [art. 2 sua Convention]. Roger Phillips – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

R. Geiss, A. Petrig, Piracy and Armed Robbery at Sea – The Legal Framework for ­Counter-Piracy Operations in Somalia and the Gulf of Aden (2011). D. Guilfoyle, Shipping Interdiction and the Law of the Sea (2009).

Plunder; see: Pillage Poisonous Gases; see: Geneva Gas Protocol (1925) Precautions, Active. Precautions in the attack, if implemented in good faith, make a substantial contribution to the mitigation of risk to civilians and civilian property jeopardized by hostilities during armed conflict. Whenever an attack (the use of force during armed conflict, whether o­ ffensively or defensively) is reasonably expected to create such risk to civilians and/or civilian property, precautionary measures must be integrated into the attack planning and execution process [see: Attacks; Hostilities, Conduct of]. Article 57 api enumerates a number of specific precautionary measures. These measures are considered a codification of customary international law, binding on all States, even those not bound by api. Furthermore, while no analogous article was included in apii, these measures are widely considered applicable to both international and non-international armed conflict, as a matter of customary international law [rule 15 icrc Customary ihl Study]. ­Furthermore, the obligation to consider and, when feasible, implement precautionary ­measures is increasingly accepted as a fundamental principle of

564

Precautions, Active

ihl. When properly ­implemented, precautionary measures align with tactical and operational logic, and reflect the delicate balance between military necessity and dictates of humanity, a balance at the very foundation of conflict regulation [see: Military Necessity; Humanity]. Article 57(1) api imposes on parties to international armed conflicts the obligation to take “constant care […] to spare the civilian population, civilians and civilian objects” from the harmful effects of military operations. Article 57 then enumerates more specific precautionary measures that advance this important humanitarian law objective. They include: (1) the gathering and consideration of reasonably available information to contribute to the best possible target assessment; (2) the selection of means (weapons) and methods (tactics) for an attack that will mitigate the risk to civilians and civilian property; (3) the issuance of warnings unless circumstances do not permit; (4) when multiple attack options offer the same or similar military advantage, the selection of the option that poses the lesser risk to civilians; and (5) the obligation to cancel or suspend any attack anticipated to cause harm to civilians and/ or civilian property calculated as excessive in comparison to the anticipated concrete and direct military advantage. It is important to note that the language used in Article 57 api indicates that these precautions are presumptively required. However, Article 57 api also indicates that the obligation to implement precautionary measures is qualified by considerations of feasibility. For example, the pre-attack warning obligation is required unless “circumstances do not permit”. Likewise, the obligation to select military objectives and methods or means of attack based on mitigation of civilian risk is qualified by the consideration of military advantage. In other words, there is no obligation to adopt the “least civilian risk” option when doing so compromises the anticipated military advantage of the attack. Precautionary measures, when properly understood and implemented in good faith, will reduce the complexity of the ultimate proportionality decisions related to attacks that endanger civilians and civilian property [see: ­Proportionality]. At the operational level, they can be integrated into deliberate and to a lesser degree time-sensitive targeting decisions. This integration will ideally narrow the range of civilian risk that commanders must ­assess when making the ultimate attack decision. However, as noted, implementation of these enumerated precautionary measures is always qualified by feasibility considerations, which merely reflects the reality that tactical and operational considerations will often necessitate limits on the measures that may reasonably be taken to mitigate civilian risk. Indeed, no commander can be expected to possess perfect situational awareness p ­ rior to launching an attack; warnings may be reasonably assessed as contrary to the tactical imperative of surprise;

Precautions, Passive

565

precision attack capability may simply be u ­ navailable; the option to shift the time of an attack in order to mitigate c­ ivilian risk may nullify the potential effect on the enemy. These and related tactical and operational considerations always impact the precautions implementation process, as they must. However, the obligation to make good faith efforts to implement precautionary measures whenever feasible must constantly be emphasized. Doing so serves a vital function: reminding those entrusted with lethal combat power of their obligation to constantly endeavour to mitigate the harm to innocents during the execution of even their most vital military missions. Geoffrey S. Corn – the views expressed are those of the author alone and do not necessarily reflect the views of the U.S. Army or any other institution the author is affiliated with Bibliography

G.S. Corn, ‘Targeting, Distinction, and the Long War: Guarding against Conflation of Cause and Responsibility’, 46 Israel Yearbook on Human Rights (2016). G.S. Corn, J. Schoettler, ‘Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures’, 223 (785) Mil. L. Rev. (2016). Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 164–173. L.C. Green, The Contemporary Law of International Armed Conflict (2000), pp. 155–157.

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

566

Precautions, Passive

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

Prisoners of War

567

even blatant non-compliance with this passive precautions obligation does not release an attacking force from the obligation to implement active precautions in an e­ ffort to mitigate the accordant risk to civilians and civilian property. Geoffrey S. Corn – the views expressed are those of the author alone and do not necessarily reflect the views of the U.S. Army or any other institution the author is affiliated with Bibliography

G.S. Corn, ‘Targeting, Distinction, and the Long War: Guarding against Conflation of Cause and Responsibility’, 46 Israel Yearbook on Human Rights (2016). G.S. Corn, J. Schoettler, ‘Targeting and Civilian Risk Mitigation: The Essential Role of Precautionary Measures’, 223 Mil. L. Rev. 785 (2016). Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2016), pp. 173–174.

Prisoners of War. The concept of “prisoner of war” predates the 1949 GCs but, relative to other humanitarian legal concepts, it was established only relatively recently. Prior to some relevant provisions of the Hague Conventions of 1899 and 1907 [see: Hague Law], which were themselves hardly a comprehensive treatment of prisoners of war, persons detained by an opposing belligerent force were not protected by any specific status or rules, and they were susceptible to the whims of that detaining power. Following the experiences of World War i, the 1929 Geneva Convention Relative to the Treatment of Prisoners of War was the first dedicated instrument to attempt to enhance and codify rules protecting prisoners of war, by supplementing the Hague Conventions [see: Italian Military Internees]. After World War ii, with the passage of gciii [see: Geneva Convention iii] (which replaces the 1929 Geneva Convention) and the subsequent entry into force of api [see: Additional Protocol i], the applicable conventional law is now established: a prisoner of war is a person who meets one of the definitions in Article 4 gciii or Article 44 api. The icrc Customary ihl Study maintains that it is now a customary norm that combatants are entitled to prisoner of war s­ tatus upon capture in international armed conflict, but only if they distinguish themselves from the civilian population while engaged in an attack [rule 106 icrc Customary ihl Study]. Prisoner of war status is recognised only in armed conflicts that are classified as international. Persons detained in the course of a non-international

568

Prisoners of War

armed conflict, or persons who otherwise do not meet the requirements of gciii or api, do not qualify as prisoners of war (unless included in special agreements between belligerent parties, pursuant to Common Article 3(3) GCs) [see: Special Agreements]. The status of such other persons who are deprived of liberty during armed conflict is not treated here [see: Deprivation of Liberty; Internment]. Prisoner of war status is determined by the nature of the detained person in law, and is only conferred when specific requirements are met. The basic requirement is that a potential prisoner of war must have fallen into the power either of the enemy [art. 4(A) gciii] or of an “adverse party” [art. 44(1) api] during the course of an international armed conflict. The use of the term “fallen into” as opposed to “captured” is intentional, as it includes persons who become prisoners without being captured while engaged in fighting (e.g. following surrender). Once this requirement is met, the following categories of persons are entitled to prisoner of war status, pursuant to the aforementioned provisions: – Combatants [see: Combatants]; – Other people who accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, etc.; – Crew members of merchant marine and civil aviation vessels; – Inhabitants of a non-occupied territory, who take up arms to resist an invading enemy force (but only if they carry arms openly and respect ihl); – Members of the armed forces of an occupied country; and – Persons belonging to the aforementioned categories who have been received by neutral or non-belligerent powers. It should be noted that, when compared to gciii, the effect of the reduced threshold provided by api for a person to qualify as a combatant has significantly expanded the category of persons able to qualify as prisoners of war. Article 5 gciii provides that, in cases of doubt as to a putative prisoner of war status, s/he shall enjoy the protection of gciii until a competent tribunal determines their status. This issue generated both controversy and litigation with respect to detainees held by the U.S. in Guantanamo Bay, Cuba, and whether or not the dedicated Combatant Status Review Tribunals properly determined the prisoner of war status of some detainees. In this regard, the U.S. Supreme Court case of Hamdan is noteworthy inasmuch as the Court found that the so-called military commissions violated Common Article 3 GCs for failing to accord to the accused brought before them minimal judicial guarantees [see: Common Article 3; Military Commissions].

Prisoners of War, Exchange of

569

Rules applicable to persons afforded prisoner of war status also provide specific rights and protections for their treatment and release, as well as relief and assistance [see: Deprivation of Liberty, Treatment; Release]. These rights and protections are important and, in practice, are highly valued by those who ­benefit from them. Prisoners of war are not criminals, and prisoner of war status is not punitive. The internment of prisoners of war is intended solely to preclude their continued participation in, and to protect them from, on-going hostilities. Conversely, the internment of prisoners of war is not subject to prescribed procedures or justification. Restrictions placed on prisoners of war should be understood in this light. The relative dearth of international armed conflicts since the finalisation of the Geneva Conventions in 1949 has resulted in limited jurisprudence on prisoners of war relative to other topics in ihl. However, the partial arbitral award on prisoners of war by the Eritrea-Ethiopia Claims Commission, conducted under the auspices of the pca, makes for interesting reading, and provides a practical example of the applicable rules. The award, which recognised gciii as “[t]he most obviously relevant source of law”, treats both customary and conventional ihl, and determined numerous violations thereof. Chris Black – the views expressed are those of the author alone and do not necessarily reflect the views of the Special Tribunal for Lebanon Bibliography

D. Jinks, ‘The Declining Significance of pow Status’, 45(2) hilj (2004). G. Noone et al., ‘Prisoners of War in the 21st Century: Issues in Modern Warfare’, 50(1) Naval Law Review (2004).

Prisoners of War, Exchange of. The notion of “prisoner of war” exchanges predates the codification of ihl. It is important to note that agreements to exchange prisoners of war do not require the cessation of hostilities, and as such, exchanges of prisoners of war are distinct from the release and/or repatriation of prisoners of war at the cessation of hostilities [see: Release; Repatriation; Repatriation, Unjustified Delay of]. ihl does not impose a general obligation to exchange prisoners of war, and defers to the will of the belligerents to agree to do so. For instance, the Lieber Code of 1863 specified that “[t]he exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel [agreement] has been concluded, it cannot be demanded by either of them” [art. 109 Lieber Code]. In its treatment of prisoners of war, the 1874 Brussels Declaration provides that

570

Prisoners of War, Exchange of

“[t]he exchange of prisoners of war is regulated by a mutual understanding between the belligerent parties” [art. 30]. Similarly, the Oxford Manual of 1880 provides that prisoners of war may be released “in accordance with a cartel of exchange” as agreed between belligerents. Arguably, the case of seriously ill or wounded prisoners of war is an exception to this general position. The 1929 Geneva Convention required belligerents “to send back to their own country, without regard to rank or numbers, after rendering them in a fit condition for transport, prisoners of war who are seriously ill or seriously wounded”, subject to the belligerents determining by agreement “the forms of disablement or sickness requiring direct repatriation” [art. 68; see also: the Model Draft Agreement annexed to the 1929 Geneva Convention]. Note that even this obligation is subject to the requirement of an agreement between belligerents. It is, however, an obligation to repatriate, and not one to exchange – and nowhere is reciprocity a stated precondition, although it has frequently proven to be so in practice. Article 68 of the 1929 Convention is reprised almost verbatim in Article 109 gciii, a provision which includes the notable novelty of providing that “[n]o sick or injured prisoner of war who is eligible for repatriation […] may be repatriated against his will during hostilities”. Prior to gciii, the wishes of prisoners of war were not considered and, as the Korean War illustrated, prisoners of war frequently prefer not to be exchanged or repatriated for fear of reprisal or punishment upon returning home. However, except for the obligation to repatriate ill or wounded prisoners of war, the prevailing view remains that the exchange of prisoners of war during on-going hostilities (i.e. neither release nor repatriation) is neither required by nor codified in ihl. Agreements to exchange prisoners of war can be of either general or more limited application. One example of the former is taken from the agreements between France, Britain, and Germany during World War i, which stipulated that “[a]ll pows (and internees) were to be exchangeable ‘head for head and rank for rank’ after 18 months’ confinement”. During World War ii it is notable (and regrettable) that, in the absence of any agreements between them, no prisoner of war exchanges of a general ­nature were carried out between either Germany and the Soviet Union, or the U.S. and Japan, until after the cessation of hostilities. Neither Japan nor the ­Soviet Union had ratified the 1929 Convention. There were, however, numerous agreements between other belligerents that were concluded and effected during that conflict. The first prisoner of war exchange of World War ii pursuant to an agreement (12 January 1942) occurred on 8 April 1942 between the

Private Military and Security Companies

571

U.K. and Italy. Also, in March 1942, the U.S. and Germany concluded an agreement based on the model annexed to the 1929 Convention. More recently, during the wars in the former Yugoslavia, the parties to the conflict in Bosnia-Herzegovina established “exchange commissions”. Regrettably, these commissions highlighted the potential for abusing prisoner of war exchanges. On occasion, civilians were arrested for use in prisoner of war exchanges, or prisoners of war were traded for fuel or goods. Needless to say, such exchanges are inconsistent with the spirit of ihl. Chris Black – the views expressed are those of the author alone and do not necessarily reflect the views of the Special Tribunal for Lebanon Private Military and Security Companies. Private Military and Security Companies (pmscs) can be defined as “[p]rivate business entities that provide m ­ ilitary and/or security services” [The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict (2008), preface, para. 9]. These entities are defined by what they do, and not by how they describe themselves. Military and security services can include activities such as “armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel” [Montreux Document, preface, para. 9]. Many pmscs provide such services in places where armed conflicts are occurring. The phenomenon of private actors following armed forces to provide services is not new. The 1874 Brussels Declaration (which never came into force) provided that “sutlers” and “contractors” could be prisoners of war [art. 34 1874 Brussels Declaration], as did the 1929 Geneva Convention on Prisoners of War [art. 81 1929 Geneva Convention]. Sutlers and contractors provided catering and basic logistical support for armed forces. However, the sheer number of these traditional contractors and the expansion of their roles to include security provision, combined with cases in which States contracted companies to fight for them around the turn of the twenty-first century, led to sustained debate regarding the use of pmscs. pmscs as an industry rely heavily on their right to use force in self-defence in order to carry out their obligations under their contracts. In light of this, they must be viewed as an actor likely to use force in situations of armed conflict. However, in international armed conflicts, only combatants may

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lawfully use force against the opposing armed forces with impunity. p­ mscs are, ­generally, not considered to be combatants, as they are usually not incorporated into national armed forces pursuant to Article 4 gciii [see: Combatants]. Rather, they are widely considered to have the status of civilians under ihl [see: Civilians]. Unlike combatants, however, civilians may not, with impunity, directly participate in hostilities [see: Direct Participation in Hostilities]. In this regard, it has been argued that some of the activities with which pmscs have been tasked may nevertheless lead them to directly participate in hostilities. While the history of combatant immunity shows that that concept was not developed in order to protect civilians, in effect it helps to preserve the fundamental distinction between civilians and combatants and to diminish the likelihood that civilians will be directly targeted in armed conflicts [see: Distinction]. There have been debates as to whether pmscs should be banned altogether or simply regulated. In this regard, it is relevant that pmscs have been described by some as mercenaries [see: Mercenaries]. However, most pmscs would not meet the legal definition of mercenaries under Article 47 api or the similar definition in the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. In any case, under ihl, the consequence of being a mercenary is that the person does not have the right to prisoner of war status, thereby putting them on par with civilians. The mercenary label thus cannot serve as a regulatory tool for the pmsc industry. The following regulatory efforts (including self-regulatory) are noteworthy. First, the Montreux Document sets down international legal obligations and good practices relating to contracting States, home States, and the States in whose territory pmscs operate, in particular in times of armed conflict. It has been signed by over 50 States and several international organizations. Second, the private security industry has developed an International Code of Conduct for Private Security Service Providers, which companies can sign, and whose aim is to have an oversight body and complaints mechanism. Finally, in 2010, the un Human Rights Council mandated an Open-ended Intergovernmental Working Group “to consider the possibility of elaborating an international regulatory framework, including, inter alia, the option of elaborating a legally binding instrument on the regulation, monitoring and oversight of the activities of private military and security companies […]” [Human Rights Council, Resolution 15/26 (2010), para. 4]. To date, no such framework has been agreed but the mandate has been renewed. Lindsey Cameron – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way

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Bibliography

L. Cameron, V. Chetail, Privatising War: Private Military and Security Companies under Public International Law (2013). F. Francioni, N. Ronzitti, War by Contract: Human Rights, Humanitarian Law, and Private Contractors (2011).

Property, Destruction and Appropriation/Seizure of. ihl prohibits the destruction or seizure of property belonging to an adversary, unless such destruction or seizure is required by imperative military necessity. Destruction refers to any partial or total damage of public or private protected property, while seizure (or appropriation) includes acts of taking such property by force [see also: Requisitions]. This prohibition was first codified in the 1863 Lieber Code and further explicitly enshrined in the Hague Regulations of 1899 and 1907 [art. 15 Lieber Code; art. 23(g) 1907 Hague Regulations]. It is considered to be a norm of customary international law applicable in both international and ­non-international armed conflicts [rule 50 icrc Customary ihl Study]. Under Article 8(2)(b)(xiii) icc Statute, violations of Article 23(g) of the 1907 Hague Regulations give rise to individual criminal responsibility for the war crime of “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” in international armed conflict. The same war crime of “destroying or seizing the property of an adversary” when committed in a non-international armed conflict is regulated under Article 8(2)(e)(xii) icc Statute. The difference in the wording (“enemy” and “adversary”) is a technical semantic reflection of the different nature of international armed conflicts and non-international armed conflicts [O. Triffterer, K. Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary (2016), p. 568]. Extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, is a grave breach of the GCs [art. 50 gci; art. 51 gcii; art. 147 gciv; see: Grave Breaches]. Today this regime reflects customary international law applicable exclusively in the context of international armed conflict [rules 50, 156 icrc Customary ihl Study]. The relevant provisions of the GCs combine two separate grave breaches: (i) the destruction of property, and (ii) the appropriation of property [Judgment, Brđanin, icty, Trial Chamber, para. 584]. These serious violations of ihl have been widely incorporated in national criminal codes, as well as in s­ tatutes of international tribunals as a war crime in international armed conflict [e.g. art.

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Property, Destruction and Appropriation/Seizure of

2(d) icty Statute; art. 8(2)(a)(iv) icc Statute]. To constitute a grave breach, an act of destruction or appropriation needs to meet the following elements cumulatively: (1) the property destroyed or appropriated was protected under one or more GCs; (2) the destruction or appropriation was not justified by military necessity; and (3) it was extensive and carried out wantonly [art. 8(2)(a)(iv) icc Elements of Crimes; Judgment, Kordić and Čerkez, icty, Trial Chamber, paras. 335–341]. The GCs contain two sets of rules that govern the protection of property in the power of a hostile party [Judgment, Naletilić and Martinović, icty, Trial Chamber, para. 575; Brđanin, para. 586]. The first one concerns the general protection afforded by the GCs, regardless of its location. Such property includes civilian hospitals and their property [art. 18 gciv], fixed establishments and mobile medical units [arts. 19, 33 gci], the real and personal property of aid societies [art. 34 gci], hospital ships [art. 20 gci; arts. 22, 24, 25 gcii], means used for medical and similar transport, including medical aircrafts, convoys of vehicles, hospital trains, and small rescue craft [arts. 35, 36 gci; arts. 38, 39 gcii; arts. 21, 22 gciv]. The second regime is enshrined in Article 53 gciv, which protects individual and collective, public or private, movable or immovable, property situated in occupied territory from destruction, except “where such destruction is rendered absolutely necessary by military operations”. Property destroyed in the course of conduct of hostilities, however, is not protected by the grave breaches regime of Article 147 gciv [1958 icrc Commentary gciv, p. 600; Kordić and Čerkez, para. 347]. A justification of military necessity can be invoked exclusively in situations where ihl explicitly provides for such an exception of destroying or seizing the property, in addition to the requirement that the means deployed to address the military need must be lawful under ihl [Judgment, Bemba, icc, Trial Chamber, para. 123; Judgment, Katanga, icc, Trial Chamber, para. 894; see: Military Necessity]. In all other scenarios, the destruction or appropriation of property is unlawful. Examples of unlawful destruction include deliberate destruction of towns, villages, and dwellings or businesses belonging to protected persons by torching and shelling such property, and setting it on fire [Brđanin, para. 600; Judgment, Blaškić, icty, Trial Chamber, para. 234]. Pillage (or ­plunder or spoliation) is, for example, a form of unlawful appropriation [Judgment, Simić et al., icty, Trial Chamber para. 99; Judgment, Delalić et al., icty, Trial Chamber, paras. 590–591; 1958 icrc Commentary gciv, p. 244; see: Pillage]. The extensiveness of the conduct is assessed on the basis of the circumstances of the case. Both quantitative and qualitative criteria may be applied

Property, Destruction and Appropriation/Seizure of

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to the acts in question. The quantitative factors include the amount of property destroyed or appropriated, while the qualitative indicators can be satisfied by a single act of destruction or appropriation of a large magnitude targeting a property that is of a “sufficiently great” value such as a civilian hospital [Blaškić, para. 157; Naletilić and Martinović, para. 614]. For the destruction or appropriation to be committed wantonly, it is required that such act was deliberate in nature, with the intention to destroy or appropriate the property or to be committed “in reckless disregard of the likelihood of its destruction” [Brđanin, para 589; Kordić and Čerkez, para. 346]. This element must also be determined based on the factual circumstances of a specific case. The war crime of destroying or seizing property of an adversary, however, does not require underlying acts to be extensive in nature and carried out wantonly. Instead, the material elements of this war crime require that the perpetrator destroyed or seized property of an adversary that was protected under ihl at the time, and that such destruction or seizure was not required by military necessity. The term “adversary” (or “enemy”) includes any person or entity that is linked to a hostile party to the armed conflict [Katanga, para. 892]. Elements of the crime include public or private, movable or immovable property of such persons or entities, including those participating in hostilities, as long as the targeted property does not meet the definition of a military objective under Article 52(2) api, or does not fall within the exceptions of attacking civilian objects in accordance with the principle of proportionality under Article 51 api [Katanga, para. 893; see: Military Objectives; Proportionality]. Given the relatively high threshold of gravity (in addition to the existence of occupation where applicable), it seems more likely that prosecutors would charge unlawful destruction or appropriation of protected property committed in the context of an international armed conflict under similar legal bases, such as the war crime of destruction or seizure of the property of an adversary [art. 8(2)(b)(xiii) icc Statute] instead of a grave breach. Jelena Plamenac – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

D. Fleck, ‘Shortcomings of the Grave Breaches Regime’, 7(4) jicj (2009). R.S. Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001).

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Property, Private. The concept of private property and related property rights in ihl derives from national legal systems and is enshrined in core ihl treaties. Inspired by the protective rules on private property laid down in the 1863 Lieber Code, the first ihl instruments that codified this protection at the international level were the Hague Regulations of 1899 and 1907. Subsequently, the 1949 GCs and 1977 APs, as well as treaties such as the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, further developed the corpus of law regulating the protection of private property in situations of armed conflict, in particular protected property that falls into the hands of the enemy. Private property is defined in conventional terms and includes both movable and immovable objects belonging to private individuals or collectives. The property of municipalities and institutions dedicated to religion, charity, education or the arts or sciences, regardless of ownership, is also considered private property [art. 56(1) 1907 Hague Regulations]. Belligerent parties to both international and non-international armed ­conflicts have an obligation to respect private property belonging to an adversary at all times [e.g. art. 46(1) 1907 Hague Regulations] and refrain from destroying or seizing such property that is within the geographical scope of the armed conflict, “unless such destruction or seizure be imperatively demanded by the necessities of war” [art. 23(g) 1907 Hague Regulations; arts. 52–54 api; rules 50–52 icrc Customary ihl Study; see: Property, Destruction and Appropriation/Seizure of; Military Necessity]. Personal property is protected from pillage in all circumstances [arts. 28, 47 1907 Hague Regulations; art. 33 gciv; art. 4(2)(g) apii; see: Pillage]. In the context of an international armed conflict, the property of protected persons under the GCs is also protected from reprisals [art. 33 gciv], and confiscation [e.g. art. 18 gciii; art. 97 gciv; see: Requisitions]. In addition to this general protection, ihl treaties also contain more specific rules that regulate situations of destruction or seizure of private property located in occupied territory. gciv, similarly to the 1907 Hague Regulations, recognizes the military reality of armed conflicts by prohibiting the destruction of private property in occupied territory “except where such destruction is rendered absolutely necessary by military operations” [art. 53 gciv]. With respect to various forms of seizure, any kind of seizure that entails the permanent taking of the private property without some form of compensation to an owner is unlawful [art. 46(2) 1907 Hague Regulations]. Jelena Plamenac – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

Proportionality

577

Bibliography

L. Brilmayer, G. Chepiga, ‘Ownership or Use? Civilian Property Interests in International Humanitarian Law’, 49(2) hilj (2008). D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002).

Proportionality. Under ihl, direct attacks against civilians and civilian objects are prohibited. According to Article 48 api, all parties to the armed conflict “shall direct their operations only against military objectives [art. 48 api; see: Distinction; Military Objectives]. ihl also prohibits indiscriminate attacks, that is attacks that do not distinguish between military targets and civilian objects [see: Indiscriminate Attacks]. Attacks against legitimate military targets are therefore allowed under ihl, in so far as they are proportionate. The principle of proportionality finds its roots in the Catholic doctrine of “double-effect” of the middle-ages [G. Blum, ‘On a Differential Law of War’, 52(1) hilj (Winter 2011), p. 189; K. Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’, yihl (2005), p. 26; C. Byron, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage’, 13 yihl (2010), p. 191] and was codified more recently in Article 51(5)(b) api, which defines as indiscriminate “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (emphasis added). Article 57(2)(iii) api further requires those who plan or decide upon an attack to refrain from deciding to launch any attack which may be disproportionate. Conduct violating the principle of proportionality is considered to be a grave breach of Article 85(3)(b) api and a war crime in international armed conflict, pursuant to Article 8(2)(b)(iv) icc Statute [see: Grave Breaches; War Crimes]. While no explicit reference to the principle of proportionality can be found in apii, relevant to non-international armed conflict, according to the icrc Customary ihl Study, State practice establishes that this principle amounts to a norm of customary international law applicable to both international and non-international armed conflicts [rule 14 icrc Customary ihl Study]. An attack is proportionate, and therefore legitimate, if the loss of civilian life or damage to civilian property is not excessive compared to the concrete and direct military advantage anticipated. As recognized by the Supreme Court of Israel, such assessment is a “values based test”, which is “based upon a

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balancing between conflicting values and interests”, and “performing that balance is difficult” [Judgment, Targeted Killings Case, Israeli Supreme Court, paras. 42–46; see also: Judgment, Blaškić, icty, Trial Chamber, paras. 180, 417–417; Judgment, Galić, Trial Chamber, paras. 57–58]. The definitions of “excessive” and “military advantage” are necessarily subjective and subject to debate. Excessive encapsulates the idea that the attack must be proportionate, therefore not causing more collateral damage than necessary [Watkin, p. 8; 1987 icrc Commentary api, paras. 2204–2208]. In fact, the initial language proposed in 1973 for api indicated that the attack must be “not disproportionate to the direct and substantial military advantage anticipated” [1987 icrc Commentary api, para. 2204]. Suggestions that Article 51(5)(b) api authorizes any type of attack, in so far as it does not cause excessive loss or damage in relation to the military advantage expected, or that high civilian losses or damage may be justified if the military advantage at stake is very high, have been put forward [1987 icrc Commentary api, para. 1979–1980]. Both suggestions are incorrect. The means of the attack must not be “disproportionate in relation to the objective of the attack, but […] suited to destroying only that objective” [1987 icrc Commentary api, paras. 1979, 2207], and the incidental losses or damage should never be extensive [1987 icrc Commentary api, para. 1980]. As regards “military advantage”, the icrc notes that several States take the position that the expression is not limited to isolated or particular attacks, but refers to the military advantage anticipated from the military attack as a whole. In fact, Article 8(2)(b)(iv) icc Statute prohibits “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” (emphasis added) [see also: Watkin, p. 19]. As regards the expression “concrete and direct”, according to the commentaries to the APs, this means that the military advantage must be “substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded” [1987 icrc Commentary api, para. 2209; Watkin, pp. 17–19]. According to some authors, factors that must be considered when deciding on an attack and assessing its proportionality include: the “military importance of the military objective, the density of the civilian population in the targeted area, the likely effects of the attack, including the possible release of hazardous substances”; or the consequences of targeting, for example, an electric power plant for the population in the long run; the type of weapons available for the attack and their accuracy; the time of the attack, which may be relevant, for

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example, when targeting ammunition factories where civilians work, and the security of the military forces carrying out the attack [A.P.V. Rogers, Law on the Battlefield (1996), p. 19; Byron, pp. 194–195; M.N. Schmitt, ‘Precision attack and International Humanitarian Law’, 87 irrc (September 2005), p. 457]. Impacts on the natural environment must also be taken into consideration [see: Environment; see also: rule 43 icrc Customary ihl Study; Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, para. 30; and Galić, para. 58]. Maddalena Ghezzi – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

G. Blum, ‘On a Differential Law of War’, 52(1) hilj (2011). C. Byron, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage’, 13 yihl (2010). A.P.V. Rogers, Law on the Battlefield (1996). M.N. Schmitt, ‘Precision Attack and International Humanitarian Law’, 87 irrc (2005). K. Watkin, ‘Assessing Proportionality: Moral Complexity and Legal Rules’, yihl (2005).

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

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Protected Objects

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

Protected Objects

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

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[see: Civil Defence], which exclusively perform the humanitarian tasks provided for in Article 61 api. Their special protection is due to their role in favour of the civilian population by: (i) protecting it against the dangers of the conflict; (ii) helping it to recover from the effects of hostilities or disasters; and (iii) providing it with the conditions necessary for its survival. Hector Olasolo, Lucia Carcano – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

R. Kolb, R. Hyde, An Introduction to the International Law of Armed Conflicts (2008). N. Melzer, International Humanitarian Law. A Comprehensive Introduction (2016). L. Moir, The Law of Internal Armed Conflict (2004). H. Olasolo, Unlawful Attacks in Combat Situations (2007). A.P.V. Rogers, Law on the Battlefield (2004).

Protected Persons. The expression protected persons is generally used to refer to persons who are protected and/or have a specific protected status in Geneva Law [e.g. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, paras. 67, 81; Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, Ntaganda, icc, Appeals Chamber, paras. 21, 46–51; see: Geneva Law]. In the context of international armed conflict, ihl identifies the following main categories of protected persons: (i) prisoners of war [see: Prisoners of War]; (ii) civilians [see: Civilians]; and (iii) the wounded, sick, and shipwrecked [see: Wounded and Sick; Shipwrecked]. One of the principal considerations in relation to this categorisation, as well as the delineation of protected persons, is the status of individuals to be protected, in particular, whether they are combatants or civilians and whether they are in enemy hands [see: Combatants; Civilians]. Indeed, prisoners of war, protected under gciii, are mainly combatants who have fallen into the power of the enemy [art. 4A gciii; 1960 icrc Commentary gciii, pp. 50–51; see also: art. 44(1) api]. Civilians, protected under gciv, are persons who find themselves “in the hands of a Party to the conflict or Occupying Power of which they are not nationals” [art. 4 gciv; 1958 icrc Commentary gciv, pp. 45–47]. gciv defines and literally refers to such civilians as “protected persons” to whom its protective regime is applicable [art. 4 gciv et seq]. This means that gciv does not accord protected status to the State’s own nationals, although,

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in the context of the war in the former Yugoslavia, the icty held that the crucial test may be whether the victims owe allegiance to a party to the conflict in whose hands they find themselves, and that this may depend on the bonds of ethnicity, rather than the formal bonds of nationality [Judgment, Blaškić, icty, Appeals Chamber, paras. 172–182, 634; Judgment, Kordić and Čerkez, icty, Appeals Chamber, paras. 328–330; see also: Judgment, Prlić et al., icty, Appeals Chamber, paras. 348–360 (affirming the Trial Chamber’s ruling that gciv also protects members of armed forces who were placed in detention by their own armed forces due to their perceived allegiance to the opposing party to the conflict)]. Be that as it may, gciii and gciv focus on the protection of combatants and civilians who are in the power of an adversary party to a conflict since violence – and potential abuses – during armed conflict are typically directed against, or inflicted on, enemy combatants or enemy civilians [Ntaganda, para. 57]. This stands in stark contrast to ihrl, which is applicable to all persons irrespective of their status [see: International Human Rights Law]. Nonetheless, the categorisation and delineation of protected persons do not always correspond to the aforementioned distinctions on the basis of their status. With regard to civilians, api has expanded the scope of civilians to be protected and affords protections to civilians in general, without requiring that they be in the hands of an enemy State [art. 50(1) api; 1987 icrc Commentary api, paras. 1908–1909]. With respect to the wounded, sick, and shipwrecked, GCs initially established two different regimes: one for the military wounded, sick, and shipwrecked stipulated in gci and gcii, and the other for the civilian wounded, sick, and shipwrecked stipulated in gciv, the latter being more rudimentary. However, neither of these regimes requires that wounded, sick, or shipwrecked persons be in the hands of the adversary, in order for them to be protected. Rather, these regimes have provided protections without any adverse distinction, in particular, of nationality [arts. 12–13 gci; arts. 12–13 gcii; arts. 13, 16 gciv (contained in Part ii of gciv, which exceptionally sets out general protective rules applicable to the entire populations in the countries in conflict, regardless of whether they are in the hands of an enemy State); 2016 icrc Commentary gci, para. 1451]. Moreover, api expanded the protection granted to the sick, wounded, and shipwrecked in the GCs and abandoned the distinction between military persons and civilians within this category of protected persons [arts. 8–34 api]. In the context of non-international armed conflict, ihl protects people on the basis of their activities rather than their status. The law on non-international armed conflicts, codified mainly in Common Article 3 GCs and apii, affords minimum but fundamental protections to all those who do not, or no

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longer, take active part in hostilities [2016 icrc Commentary, para. 545; Judgment, Delalić et al. (Čelebići), icty, Appeals Chamber, para. 420], including the wounded, sick, and shipwrecked, detainees [see: Internment; Assigned Residence; Deprivation of Liberty], and civilians not directly participating in hostilities [see: Direct Participation in Hostilities]. Such protection primarily includes the prohibition of direct attack, as well as guarantees of humane treatment and fair trial, all of which are customary in both international and non-international armed conflicts [Common Article 3 GCs; arts. 4–6, 7–13, 17 apii; rules 1, 25–29, 47, 87–105, 109–111, 129 icrc Customary ihl Study]. Recently, considering a case of rape and sexual slavery of child soldiers, the Appeals Chamber of the icc held, referring to the icrc Commentary, that Common Article 3 GCs protects members of armed forces against violations committed by the armed force to which they belong. It further held that, both in the context of international and non-international armed conflict, there is no general rule in ihl which categorically excludes members of armed forces from protection against violations – including the crimes of rape and sexual slavery – committed by members of the same armed force. On this basis, as well as the wording and drafting history of relevant provisions, the icc Appeals Chamber concluded that the war crimes of rapes and sexual slavery under Article 8(2)(b)(xxii) and (e)(vi) icc Statute do not require that victims be taking no active part in hostilities in the sense of Common Article 3 GCs (let alone, be protected persons in terms of GCs). This conclusion reflects an increasingly liberal interpretation of ihl influenced by ihrl. However, one could opine that this ruling effectively deviates from the framework of ihl, as it appears to extend the protection to virtually anyone affected by armed conflicts, irrespective of their participation in hostilities, which is the baseline consideration in assessing the applicability of ihl rules [Ntaganda, paras. 16, 51, 60–66, 69; 2016 icrc Commentary gci, para. 547]. In both international and non-international armed conflicts, attention should also be given to certain specific categories of persons, including medical and religious personnel [see: Medical Personnel; Religious Personnel], women [see: Women], children [see: Children], the elderly, disabled persons [see: Disability], journalists [see: Journalists; War Correspondents], and UN peacekeepers [see: Peacekeeping]. Although these are not the main categories of protected persons envisaged in GCs and APs, special rules have been developed for these specific categories of persons in GCs, APs, and other supplementary treaties in order to give them tailored protection by virtue of their particular functions or their level of vulnerability. Saeko Kawashima – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

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Bibliography

D. Fleck (ed.), The Handbook of International Humanitarian Law (2008), pp. 80–86, 95–96, 237–417, 627. T. Ruys, C. De Cock, ‘Protected Persons in International Armed Conflicts’, in N.D. White, C. Henderson (eds.), Research Handbook on International Conflict and Security Law (2013). S. Verhoeven, ‘The Protection of Civilians and Civilian Objects against Hostilities’, in J. Wouters, P. De Man, N. Verlinden, Armed Conflicts and the Law (2016). S. Verhoeven, H. Sagon, ‘Protected Persons in International Humanitarian Law’, in J. Wouters, P. De Man, N. Verlinden (eds.), Armed Conflicts and the Law (2016).

Protecting Powers. Traditionally, the concept of protecting powers has been resorted to in international law when two States cease to maintain diplomatic relations with one another. In this context, the need arises for a third State to serve as a protecting power that secures the interests of one or more conflicting States and their nationals. In order for a protecting power to be designated, all States involved must agree to such a process. The actual appointment of a protecting power is based upon the request of a State and approval of the other State and the protecting power(s). The institution of protecting powers was formally regulated for the first time in the 1929 Geneva Convention on Prisoners of War [arts. 31, 39, 42–44, 59, 62, 65–66, 77, 86–87 1929 Geneva Convention]. During the Diplomatic Conference, the concept of protecting powers was extensively discussed. States acting as protecting powers during World War i reaffirmed the necessity of adopting a clear definition of the tasks of a protecting power. However, this conclusion neither made the resort to protecting powers obligatory by belligerents, nor provided any protection of such type for civilians in enemy hands [HenryDunant Institute/UNESCO, International Dimensions of Humanitarian Law (1988), p. 267]. In World War ii, however, a large number of countries were embroiled in hostilities, which led to the absence of powerful neutral States with the capacity to act as protecting powers [H.S. Levie, ‘Prisoners of War and the Protecting Power’, 55 ajil (1961), p. 33]. This increased the likelihood of one neutral State acting as protecting power for several conflicting countries due to the small number of neutral States available. The practice proved to be successful in terms of uniformity and simplicity of administration, as it enabled the protecting power to have full observance of actions by both belligerents. This was evident when Switzerland was designated as the protecting power for many belligerents on both sides of the conflict [Levie, p. 35].

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Lessons learnt from World War ii led to the conclusion of the 1949 GCs, which extended the principle of supervision by the protecting power [arts. 11, 16, 23, 48 GCI; arts. 11, 19, 49 gcii; arts. 11, 23(3), 56(3), 60(4), 62(1), 63(3), 65(2), 66(1), 68(1), 69, 71(1), 72(3), 73(3), 75(1), 77(1), 78(2), 79(4), 81(6), 96(5), 100(1), 101, 104(1), 105(2), 107(1), 120(1), 122(3), 128 gciii; arts. 12, 14, 23(3), 30, 35(3), 39(3), 42(2), 49(4), 52(1), 55(3), 59(4), 61(1), 71, 72(2), 74, 75, 76, 83(2), 96, 98, 102, 105, 108, 111, 123(5), 129(3), 137(1), 143, 145 gciv]. The functions of protecting powers were defined in more detail than those mentioned in the 1929 Convention and supervision by the protecting powers was made obligatory for the first time. However, under gci and gcii, the responsibilities of the protecting powers might still be restricted due to “imperative military necessities” [art. 8 gci; art. 8 gcii]. Yet, such restrictions can only be “exceptional and temporary” [art. 8 gci; art. 8 gcii; Henry-Dunant Institute/UNESCO, p. 269]. Furthermore, the problem of the limited number of neutral States available to act as protecting powers was solved in Common Article 10 gci to gciii and Article 11 gciv, which provide for the designation of substitutes for the protecting powers and, in certain situations, the icrc may offer to do so. The functions of protecting powers include conducting visits to prisoners of war/interned protected persons, in respect of which delegates of the protecting power must be enabled to interview them without witnesses, as well as supervising relief missions and evacuating protected persons [arts. 73, 126 gciii; arts. 6, 49, 76, 143 gciv; see: Prisoners of War; Protected Persons]. In addition, protecting powers may receive complaints submitted by prisoners of war/protected persons with regard to their conditions of captivity/internment [art. 78 gciii; art. 101 gciv; see: Internment; Assigned Residence; Deprivation of Liberty]. Moreover, gciii empowers protecting powers to assist prisoners of war in judicial proceedings against them, and to attend their trial [arts. 100–101, 104–105, 107 gciii]. Furthermore, the protecting power is responsible for transmitting information between belligerents. For example, under gci and gcii, a protecting power shall transmit detailed information on the sick, wounded, and dead that fall in the hands of the adverse party [art. 16 gci; art. 19 gcii]. Moreover, the GCs confer upon a protecting power a duty to lend its good offices to settle any disagreement over the interpretation or application of the provisions of the Conventions [see: Conciliation]. Increasing suspicion over the value of protecting powers dented enthusiasm for their services after World War ii. Protecting powers have been designated on only five occasions in armed conflicts since then [M. Sassὸli, A.A. Bouvier, A. Quintin, How Does Law Protect in War?, Part i, Vol. i (2011), p. 366]. For example, in the aftermath of the attacks of 11 September 2001, no efforts were made to employ protecting powers in the emerging “war on terror” in

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Afghanistan or Iraq [N. Wylie, ‘Protecting Powers in a Changing World’, 40 Politoribis (2006), p. 13]. This also did not happen in the armed conflicts that arose in the aftermath of the “Arab Spring”. Several possible reasons may exist. First, neutrality has become a rare concept in the era of collective security [see: Neutrality]. Second, the designation of a protecting power could be seen as giving a standing to an otherwise unrecognized party to the conflict. Third, some parties to a conflict may be unwilling to admit that an armed conflict exists in the first place [Henry-Dunant Institute/UNESCO, p. 271]. The icrc, instead, emerged as the most appropriate actor to assume the humanitarian functions of protecting powers in wartime [see: International Committee of the Red Cross]. Its status as a neutral intermediary has enabled it to be present in all types of armed conflicts (including armed conflicts of non-international character, in which States would not accept the designation of a traditional protecting power) [Wylie, p. 13]. Given its purely humanitarian mandate, the icrc, however, has no actual interest in assuming the responsibility of a protecting power per se, as it might appear to be siding with one State rather than with the victims of all the parties to the conflict [Sassὸli et al., p. 366]. However, it may be mentioned that, despite the demise of the protecting power mechanism in armed conflicts, States continue to embrace it in peacetime as a method to limit the practical implications of the severance of diplomatic relations [Wylie, p. 13]. Omar Mekky – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Bibliography

Henry-Dunant Institute/UNESCO, International Dimensions of Humanitarian Law (1988), pp. 266–275. H.S. Levie, ‘Prisoners of War and the Protecting Power’, 55 ajil (1961). N. Wylie, ‘Protecting Powers in a Changing World’, 40 Politoribis (2006).

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

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e­ ffected in satisfactory conditions of hygiene, health, safety and nutrition […]” [art. 49(3) gciv]. Occupation law is conceived as a short-term transitional legal regime and its provisions might not adequately address the needs of the population if the occupation persists. In this regard, ihrl, which also applies in times of occupation, complements the law of occupation by spelling out in greater detail what is required of the occupying power in both the short and long term [Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, para 112; see: International Human Rights Law]. Article 12 icescr provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. This imposes obligations of both immediate effect and of progressive realization on an occupying power. The former includes the minimum core content of the right to health, which includes guaranteeing access without discrimination to medical equipment, medicines and medical services; an adequate supply of safe drinking water; and the possibility of obtaining essential medicines as defined by the World Health Organization [cescr, General Comment No. 14: The Right to the Highest Attainable Standard of Health (art. 12 icescr) (2000), para. 43]. It also comprises the obligation to provide immunization against the major infectious diseases; measures to prevent, treat and control epidemic and endemic diseases; and to provide education and access to information regarding main health problems [cescr, para. 44]. These obligations are non-derogable and non-compliance cannot be justified “under any circumstances ­whatsoever” [cescr, para. 47]. Obligations subject to progressive realization become increasingly pertinent if occupation stabilizes and persists. This requires, for example, devising a public health strategy and a plan of action [cescr, para. 43]. The provision of public health and hygiene supplies and services in times of occupation is accordingly an area where ihrl makes an important complementary contribution to occupation law [N. Lubell, ‘Human Rights Obligations in Military ­Occupation’, 94(885) irrc (2012), p. 332]. Ellen Nohle, Gilles Giacca – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

A. Chapman, ‘Core Obligations Related to the Right to Health’, in A. Chapman, S. Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (2002). icrc, Expert Meeting Report: Occupation and Other Forms of Administration of Foreign Territory (March 2012).

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N. Lubell, ‘Human Rights Obligations in Military Occupation’, 94(885) irrc (2012). S. Vité, ‘The Interrelation of the Law of Occupation and Economic, Social and Cultural Rights: the Examples of Food, Health and Property’, 90(871) irrc (2008).

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

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Responsibility]. Thus, ihl is better understood if placed in its proper context, that of public international law. Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.R. Crawford, Brownlie’s Principles of Public International Law (2012). A. O’Donoghue, ‘Splendid Isolation: International Humanitarian Law, Legal Theory and the International Legal Order’, 14 yihl (2011). R. Wolfrum, ‘International Law’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2006).

Public Officials; see: Judges and Public Officials Public Order and Safety. Public order may be defined as a situation of normality in which individual and collective activities take place without disturbances and conflict, the authorities exercise their functions, and the citizens respect and obey them without protest. Public order represents a good that prevails over individual rights, if the latter represent an effective and concrete risk to the former. This may occur, for example, where groups resort to violence to achieve certain aims or demonstrators violently (or without permission) block a road affecting other members of the community. It could be said that public order is, at the same time, a fundamental guarantee and a limit to individual freedom. As a fundamental guarantee, the State has the responsibility to maintain law and order, peace and security within its territory. This responsibility extends even during times of armed conflict and has been reflected in Article 8 icc Statute, which states that nothing in that provision shall affect “the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means”. It has been argued that guaranteeing order justifies “legitimate actions taken on behalf of the Government of a State, in which an internal armed conflict is taking place” [M. Klamberg, Commentary to the Rome Statute: Article 8(3), Case Matrix Network]. In order to guarantee public order, the State may adopt a variety of ­measures. Those of a preventive nature aim at avoiding disturbances and alterations to the public order altogether, such as the protection of facilities of general interest or strategic value. Others involve the deployment of public force with the purpose of temporarily restraining or limiting some freedoms, such as the ­movement of people, assembly, and expression in specific places, while

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r­ especting at all times non-derogable human rights [M.P. Moloeznik, Manual de Sistemas Comparados de Policía (2010), p. 46]. For the purpose of re-establishing public order, and in accordance with a precise legal procedure, the relevant authorities can also declare a state of emergency. In this case, the population must be informed exactly about the material, territorial, and temporal scope of this exceptional measure, reducing limitations of human rights to the minimum extent required [icrc, Violence and the Use of Force (2011), pp. 21–23]. Turning to the second notion, safety may be defined as the freedom from the occurrence or risk of injury, danger, or loss. Some authors consider that the notion of safety can be compared to “citizen security”. It is the obligation of the State to maintain such a situation. A definition based on the fight against risks and threats has the advantage of a wider scope, which exceeds restrictive concepts, such as criminality and crimes, and emphasises the notion that safety or citizen security is a right that can be demanded from the State [R. Brotat i Jubert, Un Concepto de Seguridad Ciudadana (2002), p. 4]. In other words, citizen security deals with the progressive establishment, strengthening, and protection of the rule of law, by means of neutralizing threats to the population and ensuring a secure and pacific coexistence. Thus, citizen security is a public good and encompasses the effective protection of fundamental human rights, especially “the right to life, the right to physical integrity, the right to freedom, the right to due process and the right to the use and enjoyment of one’s property, without prejudice to other rights” [IACmHR, Country Report on Citizen Security and Human Rights (2009), pp.  41–91]. However, as with any other public good, there is a need to take into consideration the political, budgetary, social, administrative, and cultural priorities of a State. Marcos Pablo Moloeznik – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

R. Brotat i Jubert, Un Concepto de Seguridad Ciudadana (2002). IACmHR, Country Report on Citizen Security and Human Rights (2009), pp. 41–91. icrc, Violence and the Use of Force (2011), pp. 21–23. M.P. Moloeznik, Manual de Sistemas Comparados de Policía, Guadalajara (2010).

Qualified Persons. Article 6(1) api requires States to “train qualified personnel to facilitate the application of [ihl], and in particular the activities of the

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­ rotecting Powers” [see: Protecting Powers]. Given the fact that protecting P powers have not in practice been either designated or accepted by States parties to armed conflict, their role has been substituted by the icrc in accordance with Article 5(4) api [see: International Committee of the Red Cross]. Over and above States’ obligation of conduct to train such persons, Article 6(3) api refers to the possibility that they draft lists of such personnel and share them with the icrc. The object of Article 6 api is to ensure that specialist personnel, capable of undertaking the various tasks required to effectively implement the 1949 GCs and their 1977 APs, are trained in peacetime and available in the event of armed conflict. The identification of such personnel for training is complementary with the work carried out by National Committees for the Implementation of ihl, aimed at coordinating government ministries, legislative officials, members of the judiciary, and non-governmental experts who play essential roles in ihl application. The precise type of qualified persons requiring specialized training to effectively implement ihl depends on the State’s constitutional structure, but will normally include personnel from the Ministries of Defence, Foreign Affairs, Internal Affairs, Justice, Finance, Education, Health, and Culture. Other persons from the non-governmental sector may be identified for training according to their legal, educational, communications, or other expertise. For example, ihl specialists from universities and humanitarian organizations will normally be an asset. By virtue of their inter-disciplinary nature, National ihl Committees may be capable of playing a central role in the training of such personnel in accordance with the treaty and customary law obligations of the State. Andrew Carswell – the views expressed are those of the author alone and do not necessarily reflect those of the icrc Bibliography

C. Pellandini, ‘Ensuring National Compliance with ihl: The Role and Impact of National ihl Committees’, 96(895–896) irrc (2014).

Quarter. Quarter refers to the obligation to protect and spare the life of a conquered enemy who has been rendered hors de combat [see: Hors de Combat]. A declaration or order that “no quarter shall be given” is a threat not to respect this fundamental obligation and amounts to an order that there shall be no survivors. Such an order is absolutely prohibited by customary international law in both international and non-international armed conflicts [rule 46 icrc

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Customary ihl Study]. This customary prohibition stems from the fundamental principle that the laws of war do not allow for an unlimited ability to injure the enemy, and that protections should be afforded to those belligerents who have been captured and/or have laid down their arms. The rule finds its origin in the principle that the conquered enemy may not be exterminated. However, for years, it was common practice that survivors would be enslaved and there were often exceptions to the application of the rule. In the Middle Ages, only people of the same race, same religion, or with whom there were neighbourly relations were protected by the principle. It was also not uncommon for military leaders to threaten to exterminate garrisons defending a fortress against a siege. As far back as the Laws of Manu in Ancient India, there was a prohibition against the refusal to spare lives [1987 icrc Commentary api, pp. 473–477]. The rules concerning quarter were first outlined in the 1863 Lieber Code. This Code provided that all enemies who had “thrown away their arms and ask for quarter”, were prisoners of war [art. 49 Lieber Code; see: Prisoners of War], and that it was against the usage of modern war to “give no quarter” [art. 60 Lieber Code]. This early prohibition was not absolute, and a commander was permitted to direct his troops to give no quarter, “in great straits” when he considered that their own salvation meant it was impossible to take prisoners [art. 60 Lieber Code]. In addition, this protection was reciprocal, and if an enemy had given no quarter, they would not receive quarter [art. 61 Lieber Code]. Later prohibitions closed these loopholes. Most significantly Article 23(d) of the 1907 Hague Regulations listed the declaration that no quarter would be given as one of the examples of conduct towards the enemy which was especially forbidden under the laws of war. This provision drew on similar prohibitions found in Article 13(d) of the 1874 Brussels Declaration and Article 9(b) of the 1880 Oxford Manual, which were not binding legal instruments. The report of a Commission set up after World War i listed “[d]irections to give no quarter” among the crimes committed during the war [Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference’, 14(1–2) ajil (1920), p. 115]. Article 40 api states that “[i]t is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis”. It is worth noting that this prohibition is separate from the obligation to safeguard enemy hors de combat found in Article 41 api [see: Hors de Combat]. With regard to the law of non-international armed conflicts, an order that no quarter shall be given would contravene Common Article 3 GCs, and in particular the prohibition against violence to life and person as it would involve

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the killing of persons hors de combat [rule 46 icrc Customary ihl Study]. More specifically, Article 4(1) apii proscribes the order that there shall be no survivors. The icc Statute adopted the customary prohibitions pertaining to the denial of quarter [art. 8(2)(b)(xii), 8(2)(e)(x) icc Statute]. The crime is committed as soon as a person declares or orders that there shall be no survivors. According to the icc Elements of Crimes, this crime also requires that the order was “given in order to threaten an adversary or to conduct hostilities on the basis that there shall be no survivors”. This reflects the wording of Article 40 api. A further constitutive element of this crime is that the perpetrator must be in a position of effective command and control over the subordinate forces to which the declaration or order was directed [arts 8(2)(b)(xii), 8(2)(e)(x) icc Elements of Crimes]. There is no requirement that the order needs to be carried out for the crime to be committed. What is important is to establish intent to conduct hostilities in such a way that there would be no survivors or intent to threaten an adversary. In modern times the phrase “give no quarter” is often used colloquially when suggesting that terrorists for example will be “given no quarter”; it does not usually mean an order or declaration that there will be no survivors, which would amount to a war crime. Harshan Athureliya – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

C. Byron, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court (2009), pp. 118–119. T. Meron, ‘International Humanitarian Law from Agincourt to Rome’, 75 International Law Studies (2000). L. Moir, ‘Conduct of Hostilities – War Crimes’, in J. Doria, H.P. Gasser, M.C. Bassiouni (eds.), The Legal Regime of the International Criminal Court – Essays in Honour of Professor Igor Blishchenko (2009), pp. 518–520. W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2016), p. 277.

Rape and Sexual Violence. Early codified ihl prohibited rape [art. 44 Lieber Code]. Under modern treaty law, ihl prohibits, in international armed conflict, rape, (en)forced prostitution, and any form of indecent assault as attacks on women’s honour [art. 27 gciv; art. 76(1) api], while enforced prostitution

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and any form of indecent assault is prohibited as outrages upon personal dignity [art. 75(2) api; see: Outrage upon Personal Dignity]. Further, in non-international armed conflict, treaty law prohibits rape, enforced prostitution, and any form of indecent assault as outrages upon personal dignity [art. 4(2) apii]. Whilst the term “sexual violence” does not appear as such in ihl treaties, Rule 93 icrc Customary ihl Study states that “rape and other forms of sexual violence are prohibited”, thereby covering acts such as forced pregnancy and sexual slavery. Although not expressly mentioned as a grave breach under the GCs and api [see: Grave Breaches], rape and other forms of sexual violence have been subsumed under the category of “torture and inhuman treatment, […] including wilfully causing great suffering or serious injury to body or health” [rule 156 icrc Customary ihl Study; see: Torture; Inhuman Treatment; Wilfully Causing Great Suffering or Serious Injury to Body or Health]. Whether committed in international or non-international armed conflict, rape and sexual violence are considered to be serious violations of ihl and thus incur individual criminal liability [rules 93, 156 icrc Customary ihl Study; see: Serious Violations of the Laws and Customs of War], as specified in the icc Statute [arts. 8(2)(b) (xxii), 8(2)(e)(vi) icc Statute]. There is no definition of rape or sexual violence in ihl. A literal interpretation of Article 27 gciv links acts of a sexual nature to honour, a concept that is socially constructed and often sustained by male ideas about women’s chastity, modesty, and associated frailty and dependence. Interpreted in light of subsequent ihl provisions [e.g. arts. 75, 76 api; art. 4 apii] and the human rights concept of human dignity that also appears in Common Article 3 GCs, acts of sexual violence are viewed as physical harm, as well as harm to one’s human dignity rather than one’s honour [e.g. Judgment, Nyiramasuhuko, ictr, Trial Chamber, paras. 6178–6179; Judgment, Furundžija, icty, Trial Chamber, para. 183]. Rape was defined by the icty in the Furundžija case and then developed in the Kunarac case [Furundžija, para. 185; Judgment, Kunarac et al., icty, Appeals Chamber, para. 127]. The core elements of these definitions have been widely adopted and so the act of rape is defined in the icc Elements of Crime in the following terms: “[t]he perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body” [art. 8(2)(b)(xxii)1, 8(2)(e)(vi)-1 icc Elements of Crimes]. The second material element of the definition is that the act be committed against the consent of the person which was originally understood as “coercion or force or threat of force against the

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victim or a third person” [Furundžija, para. 185], but is now widened [art. 8(2) (b)(xxii)-1, 8(2)(e)(vi)-1 icc Elements of Crimes] to include “taking advantage of a coercive environment” and “against a person incapable of giving genuine consent” [Judgment, Bemba, icc, Trial Chamber, paras. 103–105, 107–108]. Conversely, sexual violence covers any act of a sexual nature [Judgment, Akayesu, ictr, Trial Chamber, para. 598; rule 93 icrc Customary ihl Study] that is committed on a person “under circumstances which are coercive”. That being said, sexual violence is defined in a more restrictive manner in the icc Statute, for it requires the act to be of a gravity comparable to that of a grave breach of the GCs [art. 8(2)(b)(xxii)-6 icc Elements of Crimes] or that of a serious violation of Common Article 3 GCs [art. 8(2)(e)(vi)-6 icc Elements of Crimes]. It is defined as an act of a sexual nature by force or by threat of force or coercion or by taking advantage of coercive environment [arts. 8(2)(b) (xxii)-6, 8(2)(e)(vi)-6 icc Elements of Crimes]. The terminology of “any form of indecent assault”, which is specific to ihl treaties, is understood as an assault of sexual nature and might thus be equated to sexual violence. As rape and sexual violence are uncoupled from the idea of a woman’s reputation and honour, the prohibition of rape and sexual violence applies equally to men and women [rules 93, 134 icrc Customary ihl Study]. Rape and sexual violence have been defined in international criminal law in gender-neutral terms so that they can be applied to female and male victims alike [see footnotes 50, 62 icc Elements of Crimes; Bemba, para. 100]. Noëlle Quénivet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

K. Askin, War Crimes against Women: Prosecution in International War Crimes Tribunals (1997). K. Boon, ‘Rape and Forced Pregnancy under the icc Statute: Human Dignity, Autonomy, and Consent’, 32 Columbia hrlr (2001). A. de Brouwer et al. (eds.), Sexual Violence as an International Crime: Interdisciplinary Approaches (2013). R. Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’, 46(1) McGill Law Journal (2000). J. Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’, 30(1) mjil (2009). F. Ní Aoláin, D.F. Haynes, N. Cahn, ‘Criminal Justice for Gendered Violence and Beyond’, 11(3) iclr (2011). K. O’Byrne, ‘Beyond Consent: Conceptualising Sexual Assault under International Criminal Law’, 11(3) iclr (2011).

Reciprocity

597

S. Sivakumaran, ‘Sexual Violence against Men in Armed Conflict’, 18(2) ejil (2007). P. Viseur Sellers, ‘The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law’, in G. McDonald, O. Swaak Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law (2000).

Rebels; see: Armed Groups Reciprocity. The notion of reciprocity featured prominently in the early bilateral law of war treaties [S. Watts, ‘Reciprocity and the Law of War’, 50 (2009) hilj, p. 389]. Giving way to considerations of sovereignty and as a result of the lack of confidence at the time in international regulation of warfare, the early ihl treaties included so-called general participation clauses: either all States that engaged in a war were bound by the convention concerned, or none was [e.g. art. 2 of the 1907 Hague Convention iv, which specifies that the Hague Regulations and the Convention “do not apply except between Contracting powers, and then only if all the belligerents are parties to the ­Convention”]. After the negative consequences of such clauses had become apparent during World War i, they were expressly excluded for the two Geneva Conventions agreed on in 1929 [e.g. art. 25 of the Geneva Convention for the ­Amelioration of the ­Condition of the Wounded and Sick in Armies in the Field (1929); art.  82  Geneva  Convention Relative to the Treatment of Prisoners of War (1929)]. The 1949 GCs went on to emphasise in Common Article 1 that they ought to be respected “in all circumstances”, and stated that the rules contained in Common Article 3 GCs similarly must be observed “in all circumstances” [see: Common Article 1; Common Article 3]. The 1969 vclt expressly prohibits the invocation of reciprocity for “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties” [art. 60 vclt; see also: icty, Judgment, Kupreškić, icty, Trial Chamber, para. 520; see: Reprisals against Civilians]. Furthermore, one of the basic notions of modern ihl is the principle of equality of belligerents, which entails that all parties to an armed conflict have the same rights and obligations under ihl, irrespective of the (alleged) justness of their cause [see: Belligerents, Equality of]. This principle is fundamental to ensure the separation between ius ad bellum and ius in bello [see: Ius Ad Bellum] and derives from the realism that a body of law designed specifically to apply in situations of armed conflict, must be complied with in all circumstances. The reciprocity principle recognises that if one side would not be

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bound by certain rules, it would be unlikely for the other side to comply with the rules it is bound by [S. Sivakumaran, The Law of Non-International Armed Conflict (2012), p. 95]. The icrc considers that the principle that “[t]he obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity” and has acquired customary law status under ihl, applicable in both international and non-international armed conflicts [rule 140 icrc Customary ihl Study]. However, tension surrounds the idea of reciprocal (and equal) application of ihl in situations of non-international armed conflict, seeing that non-State actors can be detained and prosecuted for mere participation in the fighting, even if they fully complied with ihl [see: Common Article 3; Combatants]. However, authorities are called upon to “endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict” after the end of hostilities [art. 6(5) apii; see: Amnesty]. Reciprocity has to be distinguished from (belligerent) reprisals, which seek to compel continued operation of ihl, thereby affirming it, while negative reciprocity would suspend or terminate the relevant legal obligation altogether. Rogier Bartels – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

S. Watts, ‘Reciprocity and the Law of War’, 50 hilj (2009).

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

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In international armed conflict, as long as military personnel involved in reconnaissance wear their uniforms, they are entitled to prisoner of war status when captured [see: Combatants; Prisoners of War]. However, such protection need not be afforded to them if they engage in reconnaissance missions without wearing a uniform, or without fixed distinctive sign (and carrying their weapons openly). Members of the armed forces in disguise, such as civilian clothing or the enemy’s uniform, thereby making it impossible for the enemy to identify them as members of the opposing armed forces, are acting “clandestinely” or “under false pretences” [art. 46(3) api]. Although the gathering of intelligence while not in uniform does not constitute perfidy, so long as no enemy combatants are killed, injured or captured [art. 37 api; see: Perfidy], when captured during such a mission, they will be regarded as spies and may be tried as such [arts. 29–30 1907 Hague Regulations; see: Spies]. Civilians who are gathering and transmitting military intelligence directly participate in hostilities and therefore may be targeted during such participation [icrc, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, p. 55; see: Direct Participation in Hostilities]. As with persons, military reconnaissance aircraft or ships ought to be identifiable as such [e.g. art. 3 The Hague Rules of Air Warfare]. Moreover, when a civilian ship is engaged in reconnaissance or assists in another manner in the intelligence gathering for enemy armed forces, it loses its protected status, and may be attacked and sunk [art. 60(c) San Remo Manual]. The same applies to civilian aircraft [art. 63(c) San Remo Manual]. When a civilian airplane is incorporated in or assists the enemy’s intelligence gathering system, e.g. by engaging in reconnaissance, early warning or surveillance, such aircraft may “exceptionally” be attacked [rule 27 hpcr Manual on Air and Missile Warfare]. During non-international armed conflicts, the same requirement applies to distinguish oneself as someone taking a direct part in hostilities. Members of government forces or organised armed groups that are a party to a noninternational armed conflict, therefore, have to distinguish themselves during reconnaissance missions. However, since prisoner of war status does not exist during non-international armed conflict and espionage is not prohibited under ihl, combined with the fact that government forces are unlikely to have violated domestic law, only members of organised armed groups will be affected in case of capture during reconnaissance missions. Rogier Bartels – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court

600

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Red Crescent; see: Emblem Red Cross; see: Emblem Red Crystal; see: Emblem; Additional Protocol iii Red Lion and Sun; see: Emblem Red Shield of David; see: Additional Protocol iii Refugee Law. At the international level, refugee law is a branch of public international law [see: Public International Law], which currently refers primarily to the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. However, these contemporary treaties build on the traditional State practice of granting asylum to certain individuals on their territories. Such practice was first translated in international extradition law in the nineteenth century, whereby political offenders were not to be extradited by the host State to their country of origin. It was only after World War i that refugee law became a stand-alone branch of international law, albeit with a limited personal scope. Indeed, the first international refugee law treaties that were adopted only protected refugees of predetermined nationalities. In 1926, the League of Nations adopted the Arrangement relating to the Issue of Identity Certificates to Russian and Armenian Refugees, which supplemented and amended the 1922 and 1924 arrangements and was further complemented in 1928 by an arrangement concerning their legal status. The 1933 Convention relating to the International Status of Refugees was applicable to Russian, Armenian and assimilated refugees who were to be issued a Nansen certificate for travelling, while the 1938 Refugee Convention was concerned with refugees coming from Germany. Adopted in the aftermath of World War ii, the approach taken by the 1951 Geneva Convention was in fact not dissimilar to that of previous treaties. Its refugee definition was subject to a mandatory temporal limitation (i.e. refugees having fled before 1 January 1951) and an optional geographical limitation (i.e. European refugees). It is only with the 1967 Protocol that a genuinely universal definition of refugee was adopted with the suppression of these two limitations [see: Refugees]. The 1951 Convention and its 1967 Protocol have further been complemented by regional instruments clarifying and/or broadening the refugee definition and the rights and benefits attached to refugee status. These include most

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­ otably: the 1969 Convention Governing the Specific Aspects of Refugee Probn lems in Africa adopted by the then Organization of African Unity (now African Union); the 1984 Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama; and Directive 2011/95/EU. Be it at the international or regional level, the intrinsic objective of refugee law is to protect refugees, by laying down a set of rights and benefits to which they are entitled in the host country. From that perspective, refugee status is commonly recognized as a surrogate form of protection provided by the host country, in case the country of origin is unwilling and/or unable to afford protection against persecution, or is itself the actor of persecution. It is also construed as an incremental form of protection, whereby the scope of rights and benefits expand over time. This clearly transpires from the 1951 Refugee Convention, which sets out criteria determining the applicability of specific rights and benefits. Some apply to all refugees, including asylum-seekers, as States’ recognition of an individual as a refugee is declaratory but not constitutive of refugee status. This is for instance the case with the cardinal principle of non-refoulement provided for in Article 33(1) of the Refugee Convention [see: ­Non-Refoulement]. Other rights and benefits depend on refugees’ territorial bound with the host State (i.e. physical or lawful presence) and the nature of their stay (i.e. physical residence, lawful stay, or habitual residence). By protecting those fleeing persecution, international refugee law is a branch of international law that is complementary to ihl. The latter indeed prevents to a certain extent the displacement of civilians during armed conflicts, by mitigating their effects on the civilian population and by prohibiting the forced transfer and deportation of civilians, except when military necessities or their security so requires [see: Deportation or Transfer of Civilians]. As displacement is however inherent in any armed conflict, the protection of those displaced beyond States’ boundaries falls to international refugee law. Céline Bauloz – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

V. Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014). J.C. Hathaway, M. Foster, The Law of Refugee Status (2014).

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Refugees. The definition of the term “refugee” is laid down in Article 1 of the 1951 Geneva Convention relating to the Status of Refugees, as amended by its 1967 Protocol (Refugee Convention). While Article 1(A)(1) refers to refugees recognized under previous arrangements [see: Refugee Law], Article 1(A)(2) provides a generic definition of refugees as any persons, including stateless persons [see: Statelessness] who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality [or, if stateless, outside his country of former habitual residence,] and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country [or to return to it]”. In this regard, the refugee definition is commonly recognized to rely on four main cumulative criteria. The first of these definitional elements is the existence of a well-founded fear of being persecuted, which mainly consists of a real risk of suffering violations of human rights of a certain level of severity in the country of origin, be they originating from State or non-State actors. In cases of non-State persecution, it will need to be substantiated that the State is unable and/or unwilling to provide protection to the concerned individual. The second criterion requires a link between the act(s) of persecution (or the absence of protection) and at least one of the five discriminatory grounds exhaustively listed: race, religion, nationality, membership of a particular social group, or political opinion. Each of these reasons for persecution may not only relate to characteristics directly possessed by individuals, but they may also arise when the actor(s) of persecution perceive individuals as such. The third definitional element requires the individual to be outside his/her country of origin, thereby distinguishing refugees from internally displaced persons [see: Deportation or Transfer of Civilians]. Finally, the fourth criterion establishes refugee status as a form of surrogate protection which is only to be granted in the absence of protection in the country of origin. This universal definition has been further enshrined in regional refugee law instruments, namely the 1969 Convention Governing the Specific Aspects of the Refugee Problem in Africa of the then Organization of African Unity (oau; now African Union), the 1984 Cartagena Declaration on Refugees, and the socalled EU Qualification Directive 2011/95/EU. Nevertheless, some of them have also broadened the definition. Article 1(2) of the 1969 oau Convention extends the refugee definition to “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place

Refugees

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outside his country of origin or nationality”. Similarly, the 1984 Cartagena Declaration enlarges the refugee definition so as to cover those “threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order” [1984 Cartagena Declaration, para. 3]. Beyond these regional specificities, limits are more generally set out as to who can be recognized as a refugee. On the one hand, the Refugee Convention excludes from refugee status individuals who already benefit from some form of protection, such as those protected by the UN Relief and Works Agency for Palestine Refugees in the Near East [art. 1D Refugee Convention], as well as individuals who enjoy the rights and obligations equivalent to those granted to nationals of the host country [art. 1E Refugee Convention]. On the other hand, the Convention excludes individuals who are considered to be undeserving of refugee status because of the existence of serious reasons for considering that they have committed an international crime (crime against peace, war crime or crime against humanity, including genocide), a serious non-political crime outside the country of refuge prior to admission to that country, or for having been guilty of acts contrary to the purposes and principles of the UN [art. 1(F) Refugee Convention]. These inclusion and exclusion clauses which, together, form the definition of a refugee in refugee law, remain relevant with respect to refugees in and from armed conflicts. First, concerning refugees in armed conflicts, ihl treaties explicitly refer to refugees in three specific provisions relating to international armed conflicts [arts. 44, 70 gciv; art. 73 api]. As ihl does not however define who a refugee is, recourse should be had to the refugee definition in international and regional instruments to determine the personal scope of application of these provisions. Second, individuals fleeing armed conflicts are in most cases entitled to refugee status in their host State. While this is clearer for regional definitions set out in the 1969 Convention and the 1984 Declaration, the international definition of a refugee is entirely apt to cover “refugees from war”, as armed conflicts and the resulting violence often relate to one of the five grounds for persecution [unhcr, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence […] (2016)]. From that perspective, international refugee law and ihl act as complementary branches of public international law [see: International Humanitarian Law; Public International Law]. Céline Bauloz – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with

604

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Bibliography

D.J. Cantor, J.-F. Durieux (eds.), Refuge from Inhumanity? War Refugees and International Humanitarian Law (2014). V. Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014). H. Storey, ‘Persecution: Towards a Working Definition’, in V. Chetail, C. Bauloz (eds.), Research Handbook on International Law and Migration (2014).

Regularly Constituted Courts. Regularly constituted courts, also referred to as “properly constituted” or “competent” courts, are courts that are established by law and afford the essential guarantees of independence and impartiality. No judgment or punishment for a penal offence can be imposed without a previous trial by a regularly constituted court. As one of the fair trial guarantees included in the 1949 GCs [see: Fair Trial], the requirement of a regularly constituted court was motivated by the practice of summary proceedings, which were too prone to error and thus added new victims to the casualties of armed conflicts [1958 icrc Commentary gci, p. 54]. Common Article 3 GCs, which applies to any detainee in an armed conflict regardless of its classification, proscribes summary judgments or executions by any tribunal that fails to meet the standard of a “regularly constituted court”. With respect to civilians prosecuted in occupied territories [see: Occupation], Article 66 gciv instead requires the use of “properly constituted” courts, as the occupying forces could not be expected to have previously established courts in foreign territories. Article 71 gciv clarifies that such a court must be “competent”, and prohibits the sentencing of civilians “except after a regular trial”. Neither term appears in gciii provisions governing the conduct of judicial proceedings against prisoners of war [see: Prisoners of War]. Article 102 gciii requires the detaining power to try prisoners of war in the same military or civilian courts that prosecute members of its own armed forces. The additional safeguard built into Article 84 gciii provides that such courts must conform to the guarantees of “independence and impartiality as generally recognized”. The terms “regularly” or “properly” constituted courts have a range of interpretations. A strict reading of the GCs suggests that the jurisdiction and procedures of such courts were prescribed in existing law, not created for a specific purpose. The icrc original commentary to Article 66 gciv thus provides that a “properly constituted court” includes “ordinary military courts” and “definitely excludes all special tribunals” [1958 icrc Commentary gciv,

Regularly Constituted Courts

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p. 340]. The icrc Customary ihl Study describes “regularly constituted court” as one “established and organized in accordance with the laws and procedures already in force in a country” [rule 100 icrc Customary ihl Study]. The more prevalent understanding of “regularly constituted”, or its ihrl equivalent “competent”, does not rule out the existence of special courts and tribunals [see: Military Commissions]. Provisions calling for “competent” courts, such as Article 14 iccpr, have been interpreted to mean courts established by law, rather than an arbitrary administrative act, in order to decide cases relating to certain subject matters. If a special court is used, there must be a valid reason why the normal court is unable to exercise jurisdiction, and the special tribunal must comply with the indispensable requirements of independence and impartiality [2016 icrc Commentary gci, p. 678]. Provisions of all major human rights treaties contain independence and impartiality requirements [e.g. art. 14(1) iccpr; art. 6(1) echr; arts. 7, 26 achpr]. For a court to be independent, its judges’ ability to decide cases must be unfettered by the will or the influence of the executive or legislature. In its General Comment 32, the UN Human Rights Committee (hrc) lists additional safeguards ensuring independence of judges that include: guarantees of security of tenure; procedures that ensure qualifications for the appointment of judges; conditions governing promotion, transfer, suspension, and cessation of their functions; and protections against conflicts of interest and intimidation [hrc, General Comment 32 – Article 14 (2007), para. 20]. The impartiality requirement has two aspects: subjective and objective. In order to be subjectively impartial, the judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the matter before them, nor promote the interests of one party to the detriment of the other [hrc, para. 21; rule 100 icrc Customary ihl Study]. To be objectively impartial, the court must appear to be impartial to a reasonable observer [hrc, para. 21]. Objective impartiality will be lacking where there is well-founded fear of a bias, such as when members of the military are involved in judging members of the armed group the military is fighting. Although they might not necessarily be impartial as such, special courts comprising members of the military and civilians as judges have been found to lack objective ­impartiality [Judgment, Incal v. Turkey, ECtHR, Grand Chamber, paras. 68, 71–73; Decision, Constitutional Rights Project et al. v. Nigeria, ACmHPR, para. 8]. Article 75 api brought ihl fair trial norms more in line with ihrl, but maintained the “regularly constituted court” formulation. By contrast, Article 6(2) apii reflects the reality that non-State actors will likely not find provisions under national law allowing them to establish regularly constituted courts stricto

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sensu. The provision instead prohibits convictions that are not pronounced by “a court offering the essential guarantees of independence and impartiality”. The Statutes of the icc, ictr, and stl contain similar formulations [art. 67(1) icc Statute; art. 12 ictr Statute; art. 13 stl Statute]. The requirement of Common Article 3 GCs might be seen as placing an excessive burden on the non-State actors who do not control territory and often lack the resources to establish regularly constituted courts [see: Armed Groups]. Lowering the bar to the independence and impartiality requirements, rather than the stricter Common Article 3 GCs conditions, might achieve more realistic results in providing fair trial rights to detainees of non-State actors in the overwhelming majority of non-international armed conflicts. Ilya Nuzov – the views expressed are those of the author alone and do not ­necessarily reflect the views of the International Federation for Human Rights Bibliography

P. Akhavan, ‘Judicial Guarantees’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). L. Doswald-Beck, ‘Judicial Guarantees under Common Article 3’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015).

Release. Captured combatants become prisoners of war during an international armed conflict [see: Prisoners of War]. They can be held in captivity to prevent them from participating in the hostilities against the detaining power [see: Internment]. If such participation is no longer expected, there is no longer any military necessity to retain them and, as a result, the principle of humanity requires their release [see: Humanity]. Therefore, prisoners of war must be released after the conflict, because the termination of the conflict ends the rationale of their captivity. The rule is that the release, including r­ epatriation to their State of origin, happens as soon as possible after the armed conflict, subject to the consent of the prisoner of war [art. 118 gciii]. ihl provides for four options to release prisoners of war during an armed conflict. First, the release of able-bodied prisoners on parole may be done partially or wholly, but depends to a large extent on the laws of the detaining power and the State of origin of the prisoner of war [art. 21 gciii]. Prisoners of war released on parole are compelled to keeping their promise. Second, States may arrange the exchange or release of able-bodied prisoners of war during the armed conflict in case these have been held in captivity for a long time. This could be done by bilateral agreement, using the good services of a third

Release

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party such as a neutral State or the icrc [art. 109 giii; see: Prisoners or War, Exchange of]. Third, if wounded and sick prisoners of war may be expected to benefit from treatment in a neutral State, they may be released by the detaining power and transferred to that third State [see: Wounded and Sick]. This is however an exhortation rather than a binding obligation of the detaining power [art. 110 gciii]. Fourth, prisoners of war whose further participation in hostilities is not expected must be repatriated directly to their country of origin. This includes three categories of prisoners: those who are incurably wounded or sick; those who are not likely to recover within one year; and those who have recovered, but whose mental or physical fitness seems to have been gravely diminished [art. 109 gciii]. The release of medical personnel and chaplains is subject to a special regime [see: Medical Personnel; Religious Personnel]. They do not have the status of combatants and do not become prisoners of war. They must be repatriated, except in case their services are required for the treatment of other prisoners of war [art. 30 gci; art. 37 gcii]. Civilians, who are protected persons during international armed conflict or during occupation [see: Protected Persons], may be interned if this is absolutely necessary for the detaining power, or for imperative reasons of security for an occupying power [arts. 41, 42, 78 gciv; see Internment; Assigned Residence]. They must be released as soon as the reasons necessitating internment no longer exist, but at the latest as soon as possible after the close of active hostilities [arts. 132–134 gciv; art. 75(3) api; rule 128 A-B icrc Customary ihl Study]. Parties to the conflict are encouraged to conclude special agreements to release, repatriate or relocate particularly vulnerable persons to their original place of residence or to neutral States [see: Special Agreements]. This category includes children, pregnant women, mothers with infants and young children, wounded and sick, and internees who have been detained for a long time [art. 132 gciv]. ihl applicable in non-international armed conflict contains no prisoner of war protection, due to the non-existence of combatant status [see: Combatants]. The protection of detainees during non-international armed conflict is regulated by Common Article 3 GCs, apii (if applicable), and customary ihl. Persons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist [rule 128 C icrc Customary ihl Study], or following a decision to that effect by a review board or competent court. Continued detention would violate the prohibition of arbitrary detention [rule 99 icrc Customary ihl Study; see: Deprivation of Liberty]. They may, however, continue to be

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d­ eprived of their liberty if penal proceedings are pending against them or if they are serving a sentence lawfully imposed. Jeroen van den Boogaard – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, ‘The Release of Prisoners of War’, in C. Swinarski (ed.), Études et Essais sur le Droit International Humanitaire et sur les Principes de la Croix-Rouge en l’Honneur de Jean Pictet (1984). S. Krähenmann, ‘Protection of Prisoners in Armed Conflict’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013).

Relief Societies. The exact expression found in the 1949 GCs is “relief societies, or any other organisations” [art. 125 gciii; art. 142 gciv]. The formulation “humanitarian organisation” is also used, and considered synonymous with “humanitarian body” [art. 9 gci; art. 9 gcii; art. 9 gciii; art. 10 gciv; art. 81 api; common art. 3 GCs]. In international armed conflict, an “impartial humanitarian organization” may offer its services to the parties to the conflict [art. 9 gci; art. 9 gcii; art. 9 gciii; art. 10 gciv; art. 70 api]. In non-international armed conflict, an “impartial humanitarian body” may offer its services to the parties to the conflict [common art. 3 GCs]. These services aim to safeguard the life and dignity of persons affected by armed conflict, and can include relief operations [see: Humanitarian Relief], measures to support the protection of persons, or the provision of medical care. Interestingly, the French version of the GCs uses the term “organisme humanitaire impartial” in both these instances, suggesting that the terms “humanitarian body” and “humanitarian organisation” are synonymous. In drafting Common Article 3 GCs, the term “impartial humanitarian body” was designed to encompass the icrc and National Red Cross and Red Crescent Societies [see: International Committee of the Red Cross; International Red Cross and Red Crescent Movement]. Today, impartial humanitarian organisations comprise a wide range of non-governmental and intergovernmental bodies, including aid societies that come to the assistance of a country’s medical services. To qualify as a humanitarian organisation, the entity must have a minimum of structure and capacity to meet professional standards for humanitarian activities, which can include dialogue with authorities with a view

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

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Religious Convictions and Practices

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

Religious Convictions and Practices

611

Rights, Situation of Detainees at Guantánamo Bay, E/CN.4/2006/120 (2006), pp. 60–64]. Some of these acts (and other similar acts) may possibly amount to outrages upon personal dignity [Request for Authorisation of an Investigation pursuant to Article 15, Situation in Afghanistan, icc, Office of the Prosecutor, paras. 204–206; see: Outrage upon Personal Dignity]. In addition, in international armed conflict, the GCs require burial or cremation of the dead, if possible, in accordance with the rites of the religion to which they belonged [art. 17 gci; art. 120 gciii; art. 130 gciv; see: Dead Persons]. However, as the wording of these provisions suggests, this idea is “subject to a recommendation only, since it may happen that the observation of some rites may be particularly difficult, or that the maintenance of public order might be made difficult if certain rites are carried out which may provoke hostile reactions among the people” [1958 icrc Commentary gciv, p. 506; see also: 1960 icrc Commentary gciii, p. 565]. In non-international armed conflict meeting the threshold of apii, “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their […] convictions and religious practices” [art. 4(1) apii; see also: art. 5(1) (d) apii]. In any event, in the view of the icrc, respect for “[t]he convictions and religious practices” of civilians, persons hors de combat, and persons deprived of their liberty is required as a matter of customary ihl in international and non-international armed conflict alike [rules 104, 127 icrc Customary ihl Study]. apii also stipulates that the dead must be decently disposed of [art. 8 apii]. Although the icrc Commentary indicates that this includes “a religious service, if required” [1987 icrc Commentary apii, para. 4656], it cannot be concluded that an obligation is implied, since it may be even more difficult to observe religious burial rites in non-international armed conflict than in international armed conflict. It is, furthermore, unclear whether a rule of ­customary ihl has crystallised in this regard. According to the icrc, “[t]he dead must be disposed of in a respectful manner […]” [rule 115 icrc Customary ihl Study], but it remains nevertheless unclear whether this rule encompasses respect for religious rites. Although the icrc refers to the need to do so in relation to international armed conflict [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), p. 416], this appears to be hard to reconcile with the non-obligatory nature of the aforementioned treaty law and the general wording of Rule 115 icrc Customary ihl Study. Furthermore, with regard to non-international armed conflict, the icrc states that “it is likely that some of” the requirements connected with ­respectful disposal of the dead in international armed conflict “also apply in non-international armed

612

Religious Personnel

c­ onflicts on the basis of national law” without mentioning religious rites explicitly [Henckaerts, Doswald-Beck, p. 417]. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

N. Kumar, ‘Protection of Religious Personnel’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013).

Religious Personnel. The activities and status of personnel attending to the spiritual needs of members of armed forces and others have been recognised in ihl throughout its development [e.g. art. 2 1864 Geneva Convention; art. 18 1907 Hague Regulations; see: Religious Convictions and Practices]. Article 24 gci refers to “chaplains” and, subsequently, the more neutral definition of Article 8(d) api was introduced, namely “religious personnel”. Despite the Christian connotation of Article 24 gci, these terms should be read as encompassing religious personnel of any denomination. It is, furthermore, noteworthy that the reference to “religious” extends beyond the traditional understanding of this term. Non-confessional personnel could, thus, be afforded the same status [2016 icrc Commentary gci, para. 1968]. Article 24 gci is exclusively concerned with the religious personnel of “armed forces”. The following persons may be placed on the same footing: (i) the religious personnel of other militias and other volunteer corps [art. 13(2) gci]; (ii) those responsible for the spiritual needs of the personnel accompanying the armed forces [art. 13(4) gci]; (iii) the staff of National Red Cross Societies and of other Voluntary Aid Societies employed on religious duties subject to certain conditions [art. 26 gci]; (iv) the religious personnel of hospital ships and certain other ships [arts. 36–37 gcii; art. 23(5) api]; and (v) the religious personnel mentioned in Article 9 apii [1987 icrc Commentary apii, para. 4663]. Article 8(d)(i) api also protects the religious personnel of armed forces and applies, in addition, to: (i) the religious personnel of the medical units and medical transports of a party to the conflict [art. 8(d)(ii) api]; (ii) the religious personnel of the medical units and medical transports referred to in Article 9(2) api [art. 8(d)(iii) api]; (iii) civilian religious personnel [arts. 8(d)(iv), 15(5) api]; and (iv) temporary religious personnel [art. 8(d), 8(k) api]. Two constitutive requirements for religious personnel arise from Article 24 gci and Article 8(d) api. Religious personnel must, first, be attached to the armed forces by decision of the competent authority and, second, be ­exclusively

Religious Personnel

613

concerned with the spiritual needs of members of the armed forces. Failing attachment and/or exclusivity, the persons concerned do not fall in the category of religious personnel, but are, depending on the circumstances, combatants or civilians [see: Combatants; Civilians]. Religious personnel “shall be respected and protected in all circumstances” [art. 24 gci; see also: arts. 36–37 gcii; art. 15(5) api; art. 9(1) apii]. They are entitled to wear the distinctive emblem as a manifestation of the protection afforded to them [see: Emblem]. The obligation to respect and protect applies in the relationship between a party to the conflict and the religious personnel of both the enemy’s armed forces and its own armed forces [2016 icrc Commentary gci, para. 1986]. At a minimum, the obligation to respect comprises the duty to refrain from engaging or threatening to engage in certain behaviour, such as attacking, killing, or harming religious personnel [2016 icrc Commentary gci, paras. 1987, 1989]. It is, for instance, a grave breach to commit the acts enumerated in Article 50 gci against religious personnel [see: Grave Breaches] and a war crime to intentionally attack personnel using the distinctive emblems [rule 30 icrc Customary ihl Study; art. 8(2)(b)(xxiv), 8(2)(e)(ii) icc Statute]. The obligation to respect entails, at a minimum, the duties not to interfere with the work of religious personnel (such as arresting them) and to ensure that such personnel may carry out its work (such as protecting them from looters or marauders) [2016 icrc Commentary gci, paras. 1991–1992]. Due to the specific nature of their activities, religious personnel are not considered to be combatants [art. 43(2) api; see: Combatants]. As a consequence, they are not to be treated as prisoners of war if they fall into the hands of the enemy in international armed conflict [art. 28 gci; art. 36 gcii; art. 33 gciii; see: Prisoners of War]. However, if indispensable, religious personnel may be retained to meet the spiritual needs of prisoners of war, preferably of those belonging to the armed forces upon which the religious personnel depend [arts. 28, 30–31 gci; arts. 36–37 gcii; arts. 33, 35 gciii]. Retained religious personnel shall receive treatment at least equivalent to prisoners of war [art. 28 gci; art. 36 gcii; art. 33 gciii; see: Deprivation of Liberty, Treatment]. Such personnel shall, in addition, be entitled to certain facilities and forms of protection to allow them to carry out their duties and responsibilities [art. 28 gci; arts. 33, 35 gciii]. Special agreements concluded between High Contracting Parties shall neither affect the situation of religious personnel, nor restrict the rights conferred upon them [art. 6 gci; see: Special Agreements]. More generally, religious personnel may not renounce, in whole or in part, the rights conferred upon them [art. 7 gci; art. 7 gcii]. However, the protection of religious personnel may be

614

Removal of Tissue or Organs

forfeited if they commit, outside their humanitarian duties, acts harmful to the enemy [see: Acts Harmful to the Enemy]. The obligation to respect and protect religious personnel, including the possibility of deprivation of such protection, constitutes a rule of customary ihl applicable in international and non-international armed conflict [rule 27 icrc Customary ihl Study]. According to the icrc, under customary ihl, the term religious personnel applies in the same sense to international and noninternational armed conflict and encompasses religious personnel complying with the requirements of attachment and exclusivity, whether they are of a military or civilian nature and whether they have been assigned permanently or temporarily [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), p. 90]. On account of the nature of their activities, religious personnel must be neutral. However, in particular contexts, the neutrality of such personnel may be called into question. For instance, in the U.S. detention facility in Guantánamo Bay, a Muslim U.S. military officer held “a dual role as minister to the detainees and advisor to the commander” [S. Lunze, ‘Serving God and Caesar: Religious Personnel and their Protection in Armed Conflict’, 86(853) irrc (2004), pp. 82–84]. Dražan Djukić – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

N. Kumar, ‘Protection of Religious Personnel’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013). S. Lunze, ‘Serving God and Caesar: Religious Personnel and their Protection in Armed Conflict’, 86(853) irrc (2004).

Removal of Tissue or Organs. ihl protects, inter alia, persons who are interned, detained, or otherwise deprived of their liberty by the opposing party as a result of an armed conflict, whether international or non-international in character [see: Deprivation of Liberty, Treatment]. These persons may not be subjected to “any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty” [art. 11(1) api; see also: art. 5(2) (e) apii]. Principles indicating what could be regarded as permissible medical experiments on human beings were set out for the first time at the international level in 1947 in the Medical Trials at Nuremberg, which dealt with ­medical

Removal of Tissue or Organs

615

experiments conducted on concentration camp prisoners without their consent [Judgment, usa v. Karl Brandt et al., Nuremberg Military Tribunal, pp. 11374–11377]. These principles became known as the Nuremberg Code. The prohibition set out in Article 11(1) api and Article 5(2)(e) apii falls under and aims at clarifying and developing the more general prohibitions to mutilate or carry out medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards [1987 icrc Commentary api, para. 455; 1987 icrc Commentary apii, para. 4588; Common Article 3 GCs; art. 12 gci; art. 12 gcii; art. 13 gciii; art. 32 gciv; rule 92 icrc Customary ihl Study; see: Physical Mutilation; Medical or Scientific Experiments]. While apii limits itself to this general prohibition, api goes further and prohibits the removal of tissue or organs for transplantation [art. 11(2)(c) api]. This prohibition, however, is not absolute and exceptions may be made in the case of blood and skin donated either for transfusion or grafting. In this case, the removal of blood or skin may be carried out only if the donation was given voluntarily, without any coercion and inducement, only for therapeutic purposes, and under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient [art. 11(3) api; rule 92 icrc Customary ihl Study; see: Medical Standards, Generally Accepted]. Article 11(6) api further requires each party to keep a medical record for every donation of blood for transfusion or skin for grafting. Any wilful act or omission which either violates any of the prohibitions set out in paragraphs 1 and 2, or fails to comply with the requirements of Article 11(3) api, amounts to a grave breach of api [art. 11(4) api; see: Grave Breaches]. Further, torture or inhuman treatment, including biological experiments, and wilfully causing great suffering or serious injury to body or health amount to grave breaches of the GCs [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv; see also: art. 8(2)(b)(x), 8(2)(e)(xi) icc Statute; Torture; Inhuman Treatment; Wilfully Causing Great Suffering or Serious Injury to Body or Health]. In addition to the aforementioned Medical Trials, other examples of trials dealing with illicit medical practices include the Duch case, in 2010, before the eccc where incidents of illicit blood drawing practices and other medical experiments were documented by the Trial Chamber [Judgment, kaing Guek Eav alias Duch, eccc, Trial Chamber, paras. 223, 275, 372, 428]. More recently, the Kosovo Specialist Chambers and Specialist Prosecutor’s Office was established following, inter alia, findings that illicit trafficking in human organs occurred in Kosovo during the period immediately after the conclusion of the armed conflict [Council of Europe: Parliamentary Assembly, Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo, Doc. 12462 (2011)].

616

Reparations

Maddalena Ghezzi – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2013).

Reparations. When violations of ihl take place, both State and individual responsibility exist [art. 51 gci; art. 52 gcii; art. 131 gciii; art. 148 gciv]. In the case of State responsibility [see: State Responsibility], the violating State is obliged to make full reparation for the loss or injury caused [Judgment, Case Concerning the Factory at Chorzow, pcij, para. 102; art. 31 Draft Articles on State Responsibility; art. 38 Second Protocol to the Hague Convention for the Protection of Cultural Property; art. 51 gci; art. 52 gcii; art. 131 gciii; art. 148 gciv]. This obligation exists in both international and non-international armed conflicts. Traditionally, States have had to seek reparation from another State for violations of ihl. In general, there are three forms of reparation that can be awarded or agreed upon either individually or in combination [art. 34 Draft Articles on State Responsibility]. These include restitution, compensation, and satisfaction, with a preference for restitution where possible [art. 35 ilc Commentary on the Draft Articles on State Responsibility]. Restitution is meant to re-establish the situation that existed before the injury took place. Restitution could entail allowing the return of individuals wrongfully displaced, the release of individuals wrongfully detained, or the return of stolen, seized or confiscated property. However, when restitution is not materially possible or inadequate, compensation is a way to ensure full reparation for the injury caused. Compensation is appropriate for economically a­ ssessable damage, such as, amongst other things, physical harm, material damages, and the costs of medical, legal, and social services. Lastly, satisfaction is also an option, principally where restitution or compensation are not possible, but also in combination with them. Satisfaction refers to a wide range of measures. It can include measures aimed at the cessation of violations, guarantees of non-repetition, public disclosure of the truth, a public apology, sanctions against persons liable for the violations, and commemorations and tributes to the victims. In addition to States claiming reparation against other States, which is the classical model, emphasis has increasingly been placed on reparations sought

Reparations

617

directly by individuals against State violations [art. 33(2) Draft Articles on State Responsibility; art. 33 ilc Commentary on the Draft Articles on State Responsibility; UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law]. Individuals have received direct reparation through a variety of processes, including interState agreements, national legislation, and national court proceedings, both attached to criminal processes and in separate civil proceedings, though this last avenue has been especially difficult to collect damages [see e.g. Judgment, Prefecture of Voiotia (Greece) v. Federal Republic of Germany, Areios Pagos (Supreme Court); Decision, Kadić v. Karadžić and Doe v. Karadžić, US Court of Appeals; Decision, Kovač v. Karadžić, Tribunal de Grande Instance]. The establishment of compensation or claims commissions have been particularly successful when there are funds available for individual awards [e.g. Commission for Real Property Claims of Displaced Persons and Refugees (Bosnia and Herzegovina); UN Compensation Commission (Iraqi occupation of Kuwait); the Eritrea-Ethiopia Claims Commission]. In addition to State responsibility, individuals may, under certain circumstances, be held criminally accountable for violations of ihl and may be required to pay reparations [see: Individual Criminal Responsibility]. The road towards recognizing a tangible right to reparation within international criminal law was not always easy. Although the Statutes of the icty and ictr enabled these tribunals to decide on cases of restitution of property [art. 24(3) icty Statute; art. 23(3) ictr Statute], they were silent when it came to awarding compensation to victims. In their rpe, some attempt was made to deal with issues of compensation, but these rules simply noted that victims could bring an action for damages in a national court or other competent body to obtain compensation and that the Tribunals would transmit judgments detailing convictions to national courts [rule 105 ictr rpe; rule 106 icty rpe]. Given the difficulties facing victims and the complex judicial processes at the national level, the result of these weak reparation provisions was unsurprisingly disappointing with no measures ordered by the Chambers. With the creation of the icc in 2002, States aimed to address these shortcomings of the icty and ictr by creating the Trust Fund for Victims (tfv) [art. 79 icc Statute]. In addition to implementing reparation awards ordered by the Court against specific convicted individuals, the tfv may also finance other projects for the benefit of victims and victim communities through its assistance mandate. Importantly, in addition to the three traditional forms of reparation, the tfv also recognizes awards related to rehabilitation, which may include medical and psychological care as well as more general social

618

Reparations

services. In addition to symbolic and individual monetary payments, the icc and the tfv have favored collective reparation awards aimed at improving the lives of victims and victim communities, through the provision of specialized services [Judgment on the Appeals against the “Decision Establishing the Principles and Procedures to be Applied to Reparations”, Lubanga, icc, Appeals Chamber, paras. 151–157; Order for Reparations pursuant to Article 75 of the Statute, Katanga, icc, Trial Chamber ii; Reparations Order, Al-Mahdi, icc, Trial Chamber viii]. This collective approach, even when combined with symbolic and individual measures, recognizes the mass victimization aspect of these violations and the limitations that exist when it comes to the rights of individuals to directly receive individually-accessed restitution or compensation for violations of ihl. The demands for reparation for victims of violations of ihl continue to resonate and recently calls for a different reparative model have arisen where reparations no longer place victims back in unequal and marginalized positions. Rather, it is argued that reparations should aim to improve, empower, and transform the position of victims within society. Developments in the future will likely include more emphasis on collective reparations for harms suffered and attempts to make awards or assistance more transformative in the communities that have suffered injury. This is certainly the position taken by the tfv, which aims for reparative justice for victims and transforming lives, and may impact upon State reparations in the years to come. Overall, reparation for violations of ihl is important not just to acknowledge and address the harm suffered by the State, or in some cases directly by individual victims, but also to help improve compliance with international law. However, while the right to reparation clearly exists in the law, practical issues of political will, available funds, or valuation plague the implementation of this right in practice. Brianne McGonigle Leyh – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

E.C. Gillard, ‘Reparation for Violations of International Humanitarian Law’, 85(851) irrc (2003). F. Rosenfeld, ‘Collective Reparation for Victims of Armed Conflict’, 92(879) irrc (2010). R. Uprimmy Yepes, ‘Transformative Reparations of Massive Gross Human Rights Violations: Between Corrective and Distributive Justice’, 27(4) Netherlands Quarterly of Human Rights (2009).

Repatriation

619

Repatriation. Repatriation is the process of returning an individual to his or her country or land of citizenship. In the context of armed conflicts, this could be the case of civilian internees or prisoners of war. With respect to civilian internees [see: Civilians; Internment; Assigned Residence], Article 132 gciv states that each internee must be released as soon as the reasons for internment end [see: Release], and encourages the parties to the conflict to conclude, during the course of hostilities, “agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain cases of internees”. Article 133(1) gciv creates an obligation for the detaining power to cease interment “as soon as possible after the close of hostilities”. To give practical meaning to this obligation, Article 134 gciv encourages detaining powers to “ensure the return of all internees to their last place of residence, or to facilitate their repatriation”. Article 135 gciv provides for the costs of repatriating internees in the following situations: returning a person to his or her pre-internment home; returning a person taken into custody on the high seas; voluntary repatriation; forcible repatriation; and voluntary internment. Regarding the situation of prisoners of war [see: Prisoners of War; Internment; Assigned Residence], Article 118 gciii determines that they “shall be released and repatriated without delay after the cessation of active hostilities” [see: Release]. This recognizes that captivity is a painful situation that must end as soon as possible, and that repatriation should take place rapidly. Article 109(1) gciii refers to the specific repatriation of “seriously wounded and seriously sick prisoners of war” during hostilities, unless such a prisoner is not willing to return. Decisions regarding the repatriation based on the state of health of prisoners of war are made by a mixed medical commission established upon the outbreak of hostilities, or by the medical authorities of the detaining power [art. 112 gciii]. In addition, the fact that prisoners of war must be released and repatriated without delay after the cessation of active hostilities is considered to be a rule of customary law [rule 128 icrc Customary ihl Study]. Both gciii and gciv have been supplemented by api in this regard. According to Article 85(4)(b) api, the “unjustifiable delay in the repatriation of prisoners of war or civilians” constitutes a grave breach [see: Grave Breaches]. Interestingly, the commentary on this provision recognizes an essential difference between prisoners of war and civilians. While the former, except for special cases, must be repatriated, civilians are entitled to leave enemy territory subject to certain restrictions, “but neither they nor the State in whose territory they are, have an obligation in this respect” [1987 icrc Commentary api, p. 1001]. As it can be noticed, the limitation of these provisions is revealed in the case of a person who does not wish to be repatriated. Due to the right to

620

Repatriation, Unjustified Delay of

claim asylum and the non-refoulement principle enshrined in both ihrl and international refugee law, detaining powers have to take into account the wishes of a person as to where he or she would like to be sent [see: Refugee Law]. In this sense, if an individual does not want to be repatriated because of fear that he or she will be persecuted or ill-treated, the wishes of that individual will prevail [see: Refugees; Non-Refoulement]. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call Bibliography

L. Olson, ‘Admissibility of and Procedures for Internment’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). B. Oswald, ‘End of Internment’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). M. Sassòli, ‘Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary (2015). A. de Zayas, ‘Repatriation’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2011).

Repatriation, Unjustified Delay of. Unjustified delay in the repatriation occurs when the process of returning an individual, either a prisoner of war or a civilian, to his or her country or land of citizenship is postponed without a legal basis [see: Prisoners of War; Civilians; Repatriation]. There are different reasons why repatriation can be delayed when the material conditions are fulfilled. Firstly, the parties can delay the repatriation of civilian internees with pending penal proceedings against them, or if they were serving a sentence lawfully imposed [art. 133(2) gciv; see: Internment; Assigned Residence; Release]. This also applies in the case of prisoners of war [art. 119(5) gciii; see: Internment; Release]. The icrc has affirmed that “those lawfully convicted and serving a sentence for reasons related to the armed conflict may remain in detention following the end of hostilities” [rule 128 icrc Customary ihl Study]. Secondly, Article 109(3) gciii explicitly acknowledges that prisoners of war who are sick or injured may not be willing to return to their country of citizenship during the conflict [see: Sick and Wounded; Release]. Finally, material reasons “such as circumstances making transportation impossible or ­dangerous are acceptable” may arise [1987 icrc Commentary api, p. 1001, fn. 32].

Reprisals against Civilians

621

One may assume that any case falling outside these circumstances and leading to a delay in repatriation is therefore unjustified under ihl. Article 85(4) (b) api affirms that “the unjustifiable delay in the repatriation of prisoners of war or civilians” constitutes a grave breach [see: Grave Breaches]. This crime includes unjustified delay in the repatriation both during and after the end of active hostilities. It must also be noticed, however, that an unjustified delay in the repatriation of a prisoner of war is not a war crime under the icc Statute, even though it was included as an “exceptionally serious war crime” in the 1991 ilc Draft Code of Crimes against Peace and Security of Mankind, and as a war crime in the 1996 Draft Code of Crimes. There seems to be some degree of uncertainty on the differences between repatriation, release, and transfer of individuals in the hands of a party to the conflict [see: Repatriation; Release]. Despite sharing some common features, such as the abovementioned possible criminal proceedings, further analysis and discussion on how these categories interact with different regimes of international law, mostly in terms of international refugee law and ihrl, is needed. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call Bibliography

M. Sassòli, ‘Release, Accommodation in Neutral Countries, and Repatriation of Prisoners of War’ in A. Clapham, P. Gaeta, M. Sassòli (eds.), The Geneva Conventions: A Commentary, (2015).

Reprisals against Civilians. Reprisals have not been defined in ihl treaties. In general terms, belligerent reprisals are intentional violations of an ihl rule, committed by a party to an armed conflict in response to a prior ihl violation by the opposing party, and aimed at inducing such party to discontinue a policy of violation of the same or another ihl rule. Because of its paradoxical law enforcement function, under stringent conditions, reprisals fall into the category of sanctions of international law and can be considered legitimate despite their inherently unlawful character. The ultimate coercive purpose of promoting respect for the law is what distinguishes reprisals from acts of revenge or retaliation, which constitute simple vengeance. Although there is a growing tendency to outlaw them altogether (seeing that these practices are considered to be barbarous and anachronistic in a modern international order that offers more equitable measures of law enforcement) belligerent reprisals have been historically accepted as a common

622

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wartime practice [J. De Hemptinne, ‘Prohibition of Reprisals’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015), p. 576]. However, limitations to their use in ihl have been progressively incorporated, based on the principles of proportionality, subsidiarity, and humanity [see: Proportionality; Humanity]. Specifically grounded in the principle of humanity, a prohibition of reprisals against civilians has gradually gained recognition in treaty and customary international law. The issue of whether reprisals against civilians are entirely proscribed in both international and noninternational armed conflicts is, however, a source of debate. Regarding treaty law in international armed conflicts, although the Hague Conventions of 1899 and 1907 avoided any explicit reference to the term “reprisals”, Article 50 of the 1907 Hague Regulations prohibits general penalties inflicted upon the population, “on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible”. In less ambiguous terms, Article 33(1) and (3) gciv specifically prohibits the commission of acts of reprisals against protected persons and their property [see: Protected Persons; Property, Private]. The icrc interpreted this prohibition as being “a safeguard for all protected persons […] absolute and m ­ andatory in character and thus cannot be interpreted as containing tacit reservations with regard to military necessity” [1958 icrc Commentary gciv, p. 228]. However, Article 4 gciv limits the scope of the persons protected thereunder to those who find themselves, in the case of a conflict or occupation, in the hands of a party or occupying power of which they are not nationals. Therefore, although a decisive step forward in the protection of civilians, Article 33 gciv does not offer protection from belligerent reprisals to the civilian population of a party to an international armed conflict, when located in territory still controlled by their own party. This lacuna was addressed by Article 51(6) api, which renders reprisals against “the civilian population or civilians” generally unlawful. Although the provision is only applicable to international armed conflicts, the norm undoubtedly prohibits belligerents from taking reprisals against the enemy’s ­civilian population during actual military hostilities, as opposed to only instances of occupation and other situations when civilians find themselves in the hands of the enemy, as under gciv. This provision is further complemented by Article 52(1) api, protecting civilian objects from reprisals [see: Civilian Objects], Article 54(4) api, which prohibits the taking of reprisals against objects “indispensable to the survival of the civilian population” [see: Attacks against Objects Indispensable to the Survival of the Civilian Population], and Article 55(2) api, which prohibits attacks by way of reprisals against the natural environment [see: Environment]. However, it is worth noting that, due

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to the ­applicability of the above provisions to “land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land” and to “attacks from the sea or from the air against objectives on land”, as stated by Article 49(3) api, it has been suggested that the prohibition on reprisals “do[es] not apply to ship-to-ship, ship-to-air or air-to-air combat unless that has an incidental effect on civilians or civilian objects on land” [C. Greenwood, ‘The ­Twilight of the Law of Belligerent Reprisals’, 20 ­Netherlands Yearbook of International Law (1989), pp. 53–54]. In support of and reflecting this basic prohibition of reprisals against civilians in international armed conflicts, Article 60(5) of the 1969 vclt does not allow for the termination or suspension of the operation of treaty provisions as a consequence of their breach, when they relate to the protection of the human person. This restriction to the otherwise lawful mechanism applicable to bilateral or multilateral treaties, applies in particular to provisions prohibiting any form of reprisals against persons protected. Similarly, the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ilc in 2001, contains, in Article 50(1)(c), what may become a specific prohibition for countermeasures to affect obligations of a humanitarian character prohibiting reprisals. Accordingly, it can be undoubtedly affirmed that reprisals against civilians in international armed conflicts are categorically proscribed under treaty law. Whether this prohibition has already crystallised as a customary rule is, however, doubtful [rule 146 icrc Customary ihl Study]. Major military powers, including the US, the UK, Italy, Germany, and France, have either refused to ratify api – due to, inter alia, the provision on reprisals – or have made declarations upon ratification which, although somehow ambiguous, indicate that they reserve the right to resort to reprisals against those protected by api, if facing serious violations of ihl against their civilian population. It has been argued that this might indicate that the reprisals prohibitions of api “are not declaratory of customary international law” [S. Darcy, ‘The Evolution of the Law of Belligerent Reprisals’, 175 Mil. L. Rev. (2003), p. 229]. The icrc has indeed noted that “[a]lthough practice in favour of a specific ban on the use of reprisals against all civilians is widespread and representative, it is not yet uniform” [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), p. 521]. Although the icrc acknowledges that a customary rule prohibiting reprisals against civilians during the conduct of hostilities has not crystallized, it argues that “it is also difficult to assert that a right to resort to such reprisals continues to exist” and that “there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals” [Henckaerts, Doswald-Beck, p. 523].

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The issue of whether reprisals against civilians are forbidden in non-international armed conflicts is even more contested [rule 148 icrc Customary ihl Study]. As far as treaty law is concerned, only Article 3(7) of the Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol ii ccw) prohibits directing such weapons by way of reprisals against the civilian population or individual civilians [see: Convention on Certain Conventional Weapons (1980); Landmines]. The 1996 amendment to this Protocol clearly affirmed that its “prohibitions and restrictions” are applicable to international and non-international armed conflicts. However, neither Common Article 3 GCs nor apii contain an unequivocal reference or prohibition to reprisals. It has been argued that the silence should be attributed to a deliberate intent to avoid any explicit reference to the notion of reprisals, even by way of prohibition, to prevent giving the impression a contrario that reprisals could ever be permissible in non-international armed conflict [Henckaerts, Doswald-Beck, p. 528]. One commentator argues that the authorisation of reprisals in non-international armed conflicts could entail dangerous consequences. In particular, if States were allowed to target armed groups, the latter should also have the right to resort to such measures [De Hemptinne, p. 590; see: Belligerents, Equality of]. It has also been argued that the institution of reprisals governs traditional inter-State relations, and therefore, does not apply at all between States and armed groups or between armed groups [Henckaerts, Doswald-Beck, p. 527; see also: Darcy, p. 218]. The icrc further maintains that reprisals in non-international armed conflicts are incompatible with the humane treatment demanded by Common Article 3 GCs and strongly argues against the idea that “the very concept of lawful reprisal in non-international armed conflict has ever materialized in international law” [Henckaerts, Doswald-Beck, p. 527]. However, this position has been criticised as disregarding the clear intention of the GCs signatories and of apii, who were “notoriously reluctant to concede to interference in their domestic affairs” [Darcy, p. 217] and because State practice in non-international armed conflicts is inconsistent and almost impossible to determine. Unfortunately indeed, evidence of the actual use of reprisals in non-international armed conflicts does not cease to come to light. A current example can be found in a recent report of the Independent International Commission of Inquiry on the Syrian Arab Republic, which documents allegations that, from late November until late December 2016 in Aleppo, pro-government forces carried out executions in reprisals against civilian family members or perceived supporters of armed group fighters [UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (2017), para. 91].

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It is worth noting that the icty has addressed the issue of the prohibition of reprisals against civilians in ihl, although this jurisprudence has not been exempt from criticism. An icty Trial Chamber held that the rule that reprisals against civilians are prohibited in all circumstances is “an integral part of customary international law and must be respected in all armed conflicts” [Decision (Rule 61), Martić, icty, Trial Chamber, para. 17]. This finding has been rejected – particularly regarding non-international armed conflicts – as “not convincing” and “unsubstantiated” [F. Kalshoven, ‘Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal’, in L. Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (2003), p. 492]. Furthermore, a Chamber concluded that a customary rule prohibiting reprisals against civilians had emerged, due to the imperatives of humanity and public conscience, even against State practice. In the Chamber’s argument, resorting to the Martens Clause [see: Martens Clause], this was an area “where opinio iuris sive necessitatis may play a much greater role than usus” [Judgment, Kupreškić et al., icty, Trial Chamber, para. 527]. It further argued that reprisals were no longer necessary due to the current availability of other “means of inducing compliance with international law”, particularly referring to the prosecution and punishment of crimes by national and international courts [Kupreškić et al., para. 530]. Notwithstanding the moral arguments against reprisals, commentators have found these icty’s rulings flawed and “founded on quicksand”, which “not merely have no binding force of precedent but lack of persuasive authority, because they do not ‘propound the correct interpretation of existing law’” [Kalshoven, pp. 504, 508]. The icc has not yet addressed the issue of reprisals in depth, although it should be noted that Germain Katanga was convicted for an attack, which the Trial Chamber described as reported by monuc as a “reprisal operation against the Hema civilian population” [Judgment, Katanga, icc, Trial Chamber ii, para. 854]. The Chamber further noted that it was uncontested that “the 2002 inter-communal violence escalated in Ituri and degenerated into a cycle of reprisals and acts of vengeance among the various ethnic groups” [Katanga, para. 700]. Further jurisprudential development may come from the icc, as it has been argued that Article 31(3) icc Statute leaves room for reprisals to be brought as a defense or as mitigation under Rule 145(2)(a)(i) icc rpe [M. Krabbe, Excusable Evil – An Analysis of Complete Defenses in International Criminal Law (2014), p. 235]. However, some maintain that such defences are unlikely to succeed “given the increasing narrowness of the rule and the increasing weight given to the principle of humanity” [A. O’Reilly, ‘Affirmative Defenses in International Criminal Proceedings’, in C. Rohan, G. Zyberi (eds.), Defense Perspectives on International Criminal Justice (2017), p. 512].

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Ania Salinas – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

S. Darcy, ‘Retaliation and Reprisal’, in M. Weller (ed.), The Use of Force in International Law (2015). J. De Hemptinne, ‘Prohibition of Reprisals’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions: A Commentary (2015). C. Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’, 20 Netherlands Yearbook of International Law (1989). F. Kalshoven, Belligerent Reprisals (2005).

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

Review Conference

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wounded persons, medical personnel, medical infrastructures, and supplies. For example, requisitions of property of aid societies may be carried out for “urgent necessity” and only after “the welfare of the wounded and sick has been ensured” [art. 34(2) gci]. Article 57 gciv integrates the two previous ­requirements by specifying that requisitions must be temporary. Requisitions taking place in the Occupied Palestinian Territories have come to the attention of the icj, which found Israel to be in violation of Article 52 of the 1907 Hague Regulations [Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, para. 132]. Requisitions carry two main risks. First, in situations of occupation, which by definition should be temporary, long-term requisitions may result in the permanent exploitation of resources of the occupied population, which would run contrary to the concept of usufruct, that is to say the right to use and enjoy (usus and fructus) another’s property and its profits [art. 55 1907 Hague Regulations]. Second, when the specific criteria for lawful requisitions are not fulfilled, such appropriations can amount to the war crime of pillage, provided that the necessary elements of this crime are met [see: Pillage]. Niccolò Pons – the views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers Bibliography

L. Brilmayer, G. Chepiga, ‘Ownership or Use? Civilian Property Interests in International Humanitarian Law’, 49(2) hilj (2008).

Retention; see: Medical Personnel; Religious Personnel; Internment Review Conference. The general purpose of review conferences is to verify the implementation of and respect for ihl treaties. Furthermore, review conferences may be held to discuss possible amendments to treaties, adopt new protocols, and/or consider how to ensure better compliance with ihl more generally. The revision of treaties is part and parcel of the codification of ihl. For example, the Second Hague Peace Conference of 1907 was held to revise and expand the Conventions and Declarations adopted at the First Hague Peace Conference of 1899. The 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was first amended in 1906. In 1929, building on the latter, a new Convention was created, which was considerably revised and expanded in 1949 and eventually became gci. In 1929, the first Prisoners of War Convention was adopted, supplementing relevant provisions

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on captured soldiers already present in the Hague Regulations iv. It was later amended in 1939, and in 1949 became gciii. The GCs have so far never been amended. They were instead supplemented by api and apii in 1977 and by apiii in 2005. The possibility of amendment is specifically envisaged by the APs [arts. 97, 98 api; art. 24 apii; art. 13 apiii]. No revision of the APs have been undertaken so far. Review conferences and meetings of States parties are held in relation to specific conventions, particularly the Biological Weapons Convention (bwc), the Convention on Certain Conventional Weapons (ccw), the Chemical Weapons Convention (cwc), the Anti-Personnel Mine Ban Convention (apmbc), and the Convention on Cluster Munitions (ccm). Review conferences generally take place every five years, while meetings of States parties are held annually. Special meetings may be organised to discuss particular or urgent issues. Dedicated provisions regulate the review of and amendments to these Conventions [arts. xi–xii bwc; art. 8 ccw; arts. viii(22), xv cwc; arts. 12–13 apmbc; arts. 12–13 ccm]. States parties may admit non-party States, international organisations, other organisations or institutions, and ngos to participate in a review conference [e.g. art. 12(3) ccm]. Calls for revisions of the GCs have arisen after 11 September 2001 and during the ensuing “war on terror”. It should be pointed out that any such attempt must consider the existence of customary rules alongside treaty ones, and that amendments cannot modify those ihl norms that have attained ius cogens status [art. 53 vclt]. Moreover, the modification, codification, or creation of ihl norms faces several challenges: the major codification that the law regulating armed conflicts already underwent; the problem of agreeing on the law to revise or create; and the essentially political character of lawcreation [H. L­ auterpacht, The Problems of the Revision of the Law of War (1952), pp. 378–379]. Reaching consensus among States on how to deal more systematically with the implementation, oversight, and review of ihl is probably the major obstacle. By way of example, Article 7 api provides that meetings of the States parties may be convened to consider “general problems concerning the application of the Conventions and of the Protocol”. The idea of holding regular meetings of States parties has been endorsed in Resolutions of the International Conferences of the Red Cross and Red Crescent [Resolution 1, 26th Conference (1995); Resolution 1, 31st Conference (2011)]. On these bases, the icrc and the Swiss government have jointly undertaken a four-year-long consultation process with States, proposing to establish regular meetings of States parties [Concluding Report: Strengthening Compliance with ihl, 32nd Conference (2015)]. Yet, States have not accepted this proposal, instead endorsing further

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State-driven consultations aimed to “find agreement on features and functions of a potential forum of States and to find ways to enhance the implementation of ihl” [Resolution 2, 32nd International Conference of the Red Cross and Red Crescent (2015)]. This is illustrative of the challenges revision processes of ihl treaties typically face. Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

D. Kaye, S.A. Solomon, ‘The Second Review Conference of the 1980 Convention on Certain Conventional Weapons’, 96 ajil (2002). W. Krutzsch, E. Myjer, R. Trapp (eds.), The Chemical Weapons Convention: A Commentary (2014), pp. 235–237, 397–406. H. Lauterpacht, ‘The Problems of the Revision of the Law of War’, 29 British Yearbook of International Law (1952). G. Nystuen, S. Casey-Maslen (eds.), The Convention on Cluster Munitions: A Commentary (2010), pp. 506–509.

Right to Leave. Under ihl, the right to leave the territory of a belligerent is expressly conferred on civilian protected persons during international armed conflicts [art. 35 gciv; see: Civilians]. It is subject to certain reservations and accompanied by specific protection. It is not limited to a right of repatriation to a person’s home State. It is complemented by a prohibition against ­forcibly  ­repatriating civilians against their will or transferring them to a State where they may be persecuted [art. 45 gciv; see: Repatriation; Non-Refoulement]. What distinguishes the right to leave under ihl from that in ihrl or refugee law is that Article 35 gciv applies in a specific context (international armed conflict) to a specific relationship: protected persons and the belligerent State in which they reside. In regard to such persons in that context, therefore, ­Article 35 gciv is the more specific legal rule, taking precedence over more general human rights on freedom of movement [e.g. art. 12 iccpr]. Thus, while the right to leave in ihrl may be associated with migration, and the same right in refugee law may be associated with asylum, the right to leave under ihl has its own purpose, rationale and limitations [see: Refugee Law; Refugees]. When an international armed conflict arises, civilians of enemy nationality may wish to leave the State in which they reside. The need to ensure alien civilians a right – subject to defined limits – to leave enemy territory if they wished to do so was recognized following World War i and included in Article 2 of the

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1934 Tokyo Draft International Convention on the Condition and Protection of Civilians of enemy nationality who are on territory belonging to or occupied by a belligerent. Although the Tokyo Draft was never discussed or adopted, the right was finally enshrined in 1949, within Article 35 gciv. Article 35 gciv stipulates that “[a]ll protected persons who may desire to leave the territory at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to the national interests of the State”. It is a right based on the will of the individual protected person. The same provision also requires the establishment of regular procedures to decide on applications rapidly, as well as the creation of an appeal mechanism if the application to leave is denied. Lindsey Cameron – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way Rules of Engagement. Rules of engagement (RoE) are rules that “assist in the delineation of the circumstances and limitations within which military forces may be employed to achieve their objectives” [International Institute of H ­ umanitarian Law, Sanremo Handbook on Rules of Engagement (2009), p. 1]. Their role is to allow military and political leadership to command and control the way subordinate forces execute operations [G.P. Corn, ‘Developing Rules of Engagement. Operationalizing Law, Policy, and Military Imperatives at the Strategic Level’, in G.S. Corn et al. (eds.), U.S. Military Operations. Law, Policy and Practice (2016), p. 212; see: Discipline]. They also serve the purpose of operationalizing and ensuring compliance with ihl and international law in general. In military doctrines, RoE may appear in different forms including as execute orders, deployment orders, operational plans, and standing directives. RoE may be adopted at strategic, operational, and tactical level and they may constitute standing rules or may be designed for specific missions. Examples of the content of RoE provisions include the regulation of the right to use force in individual self-defence, unit self-defence, or the protection of others who are not members of the armed forces, but also resort to warnings, the carrying of weapons, the treatment to be accorded to detained persons, and the positioning and posturing of forces. RoE are adopted by the competent authorities of States and organizations, generally with the support of Legal Advisors to Armed Forces, and are considered the outcome of decision-making carried out taking into account three determining elements: policy and political factors; operational requirements; and the applicable legal framework. The latter can be derived from ihl,

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ihrl, ius ad bellum, and the domestic law of both the State to which the operating forces belong and the State in which operations are taking places [see: ­International Humanitarian Law; International Human Rights Law; Ius Ad Bellum; National Legislation]. RoE, therefore, do not constitute international law, but they should uphold abidance by it. Whereas RoE need to comply with ihl requirements, they may also further limit the action permissible to the forces to which they are addressed, on the basis of political and operational needs or to comply with domestic legislation. Hence, the violation of RoE provisions may sometimes give rise to individual criminal responsibility for the breach of an ihl violation, but it may also only trigger the infliction of disciplinary measures or of no punishment whatsoever, depending on the status accorded to RoE in a given context [see: Individual Criminal Responsibility; Discipline]. RoE are relied upon as an essential element of military planning and operations by a growing number of States, as well as other actors including nato and the UN Department of Peacekeeping Operations. The increasing resort to multinational operations in recent conflicts has occasioned challenges in the operationalization of RoE. Maria Giovanna Pietropaolo – the views expressed are those of the author alone and do not necessarily reflect the views of Diakonia Bibliography

G. Brouard, A. Tisseron, ‘Les Règles d’Engagement, un Object Juridique?’, 730 Revue Défense Nationale (2010). G.P. Corn, ‘Developing Rules of Engagement. Operationalizing Law, Policy, and Military Imperatives at the Strategic Level’, in G.S. Corn et al. (eds.), U.S. Military Operations. Law, Policy and Practice (2016). International Institute of Humanitarian Law, Sanremo Handbook on Rules of Engagement (2009). J.M. Prescott, ‘Tactical Implementation of Rules of Engagement in a Multinational Forces Reality’, in G.S. Corn et al. (eds.), U.S. Military Operations. Law, Policy and Practice (2016).

Ruses of War. Ruses of war are methods of warfare intended to confuse an enemy during an armed conflict. They include a wide range of examples, such as surprises; ambushes; the passing of false intelligence; feigning attacks, retreats or flights; the use or imitation of signals, passwords, codes, signs, voices, and orders of the enemy; simulating quiet and inactivity; the removal of landmarks and signposts; bogus troop movement and strength; giving large strongpoints

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Ruses of War

to a small force; the use of dummy vehicles and positions; the use of cover; pretending to communicate with troops or reinforcements which do not exist; clothing the men of a single unit in the uniforms of several units so that prisoners and dead may give the idea of a large force, among many others. They are permitted in international law. The definition of ruses of war includes three elements: (i) the act in question must be accompanied by the intent to deceive the enemy in order to gain a military advantage; (ii) the deceiving act must be in conformity with ihl; and (iii) those acts considered as perfidious can never constitute a permissible ruse of war [K. Ipsen, ‘Ruses of War’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2010)]. With respect to the first element, the deception of the enemy may be accomplished by optical (dummy positions and dummy airfields), acoustic (engine and track noise), intelligence (bogus radio messages), or operational means and methods (feigned attacks). They may also take advantage of psychological constraints on the part of the enemy, who is forced to compromise in order to prevent even more serious disadvantage [D. Fleck, ‘Ruses of War and Prohibition of Perfidy’, 13 Military Law and Law of War Review (1974), p. 271]. The regulation of ruses of war in international law goes back to the 1863 Lieber Code. While not expressly referring to this term, it distinguished between permissible deception in war and clandestine or treacherous attempts to injury the enemy [art. 101 Lieber Code]. The Code prohibited the use of the enemy’s uniforms, flags or emblems of nationality in battle [arts. 63, 65 Lieber Code], the abuse of the flag of truce [art. 114 Lieber Code], and the violation of armistice conditions [arts. 136, 145 Lieber Code]. The Brussels Declaration of 1874 also recognized as legitimate ruses of war and their employment necessary for obtaining information about the enemy and the country. ­Article 24 of the Hague Regulations respecting the Laws and Customs of War on Land (annexed to the Hague Conventions ii of 1899 and iv of 1907) stated without any restriction that ruses of war are considered permissible. Ruses of war have been also codified in api. Although it did not add substance to the old rule, Article 37(2) api determines that ruses of war are not prohibited, and describes these as those acts that are intended to mislead an adversary or to induce him to act recklessly without infringing any rule of ihl, and “which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law”. It also includes different examples, such as the use of camouflage, decoys, mock operations and misinformation. The 2005 icrc Customary ihl Study followed this line by affirming that ruses of war are not prohibited as long as they do not infringe a rule of ihl, and that State practice establishes this as a norm of customary ihl applicable in both

Saboteurs

633

international and non-international armed conflicts [rule 57 icrc Customary ihl Study]. While it is a well-settled rule of international law, the distinction between ruses of war and acts of perfidy can be sometimes difficult, and the question whether it is perfidious to kill an adversary by disguising a military object as a civilian object has recently attracted attention [K. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’ 91 International Law Studies (2015), p. 517; see Perfidy]. Ezequiel Heffes – the views expressed are those of the author alone and do not necessarily reflect the views of Geneva Call Bibliography

D. Fleck, ‘Ruses of War and Prohibition of Perfidy’, 13 Military Law and Law of War Review (1974). K.J. Heller, ‘Disguising a Military Object as a Civilian Object: Prohibited Perfidy or Permissible Ruse of War?’, 91 International Law Studies 517 (2015). K. Ipsen, ‘Ruses of War’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2010). S. Oeter, ‘Methods and Means of Combat’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2008). P. Verry, Dictionary of the International Law of Armed Conflict (1992).

Saboteurs. A saboteur is a person that engages in acts of sabotage. Sabotage may be defined as military action aimed to destroy, damage and/or obstruct equipment, installations, works and/or facilities employed by the adversary. This type of action typically occurs beyond enemy lines or in the enemy armed forces’ rear. Saboteurs are not dealt with specifically in ihl. With regard to international armed conflicts, their status is to be determined according to the rules regulating combatant and prisoner of war status [see: Combatants; ­Prisoners of War]. Sabotage is not prohibited as such under ihl. It is a permissible method of warfare, as long as it is performed in compliance with the rules governing the conduct of hostilities [see: Hostilities, Conduct of]. Since sabotage is a form of direct participation in hostilities, civilians lose their protection from attacks while engaging in acts of sabotage, for which they may also be ­prosecuted [art. 51(3) api; art. 13(3) apii; see: Direct Participation in Hostilities]. In international armed conflicts, a protected person does not lose his or her status u ­ nder gciv for performing acts of sabotage. However, he or she may be ­lawfully interned, lose the right of communication, and be criminally ­prosecuted [see: Internment]. The guarantees of humane treatment and fair

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trial must be afforded to protected persons who engage in sabotage [art. 5(3) gciv; see: Inhuman Treatment; Fair Trial]. Acts of sabotage are by definition carried out covertly and clandestinely, ­employing surprise and ruses of war [see: Ruses of War]. Consequently, combatants who act as saboteurs often do not wear uniforms or other distinctive signs that make them recognisable as such. This has consequences with regard to their status upon capture. Combatants engaging in sabotage and acting in plain or civilian clothes indeed forfeit the prisoner of war status they are e­ ntitled to. This is a general legal consequence combatants face whenever they  fail to distinguish themselves from the civilian population [see: Combatants]. Saboteurs that lose prisoner of war status become liable to criminal prosecution under the domestic law of the capturing State [e.g. Opinion, Ex Parte Quirin et al., U.S. Supreme Court]. Saboteurs acting in plain clothes may be prosecuted only if captured while so disguised. Combatants that succeed in re-joining their armed forces, who are captured at a later stage, cannot be prosecuted for previous acts of sabotage. In this perspective, saboteurs are subject to the same legal regime envisaged for spies [art. 46(4) api; U.S. Law of War Manual (2015), paras. 4.17.3, 4.17.5.1; see: Spies]. Saboteurs who are not entitled to prisoner of war status must anyway be granted equivalent protection. Particularly, they have the right to be treated humanely and to be tried in accordance with fair trail guarantees [arts. 44(4), 45(3), 75 api; see: Fundamental Guarantees]. It should be noted that, unless the minimum requirements of distinction laid down in Article 44(3) api are fulfilled (carrying arms openly during and in preparation of a military engagement), acts of sabotage may amount to perfidy when the conditions set in Article 37 api are met [see: Perfidy]. Furthermore, it is prohibited for saboteurs to wear the uniforms of the enemy while “engaging in attacks or in order to shield, favour, protect or impede military operations” [art. 39(2) api]. In non-international armed conflicts, no question of loss of prisoner of war status arises for members of the armed forces performing sabotage in plain or civilian clothes. Members of organised armed groups and civilians engaging in acts of sabotage may be prosecuted for their direct participation in hostilities [see: Direct Participation in Hostilities]. They must at all times be treated ­humanely and be guaranteed a fair trial, in accordance with treaty and customary law applicable in non-international armed conflicts [common art. 3 GCs; arts. 4–6 apii; rules 87, 100 icrc Customary ihl Study]. Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists

Saint Petersburg Declaration (1868)

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Bibliography

R. Baxter, ‘So-Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs’, 28 British Yearbook of International Law (1951). K. Dörmann, ‘The Legal Situation of “Unlawful/Unprivileged” Combatants’, 849 irrc (2003). H. Meyrowitz, ‘Le Statut des Saboteurs dans le Droit de la Guerre’, 5 Military Law and Law of War Review (1966).

Safe Area; see: Neutralized Zones Saint Petersburg Declaration (1868). The 1868 Saint Petersburg “Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight” (Saint Petersburg Declaration) outlawed use between the members of the armed forces of States parties in international armed conflict “of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”. In 1863, the Russian military had invented a bullet that exploded on contact with hard substances and whose primary military utility was to blow up ammunition wagons. In 1867, however, the bullet was modified so as to explode on contact with a soft substance, which would have meant that its use against a human body would render the victim almost certain to be killed. The Saint Petersburg Declaration represents the first modern treaty prohibiting the use of a specific weapon during war. According to the icrc, under customary ihl: “[t]he anti-personnel use of bullets which explode within the human body is prohibited” [rule 78 icrc Customary ihl Study]. This rule applies in all armed conflicts. It is slightly narrower than the treaty rule, which also covers “fulminating and inflammable substances”, a formulation that would include incendiary bullets [Exploding Bullets, Weapons Law Encyclopedia]. The icrc has reported concerns about compliance with the Saint Petersburg Declaration based on tests that showed that certain 12.7 mm bullets developed by States exploded in human tissue simulant. As a consequence, the icrc convened, in 1999, a meeting of military, legal, and ballistic experts from four States that manufactured or stocked the 12.7 mm bullet. The experts, who participated in a personal capacity, agreed that targeting combatants with bullets whose foreseeable effects were to explode on impact with the human body would be contrary to the object and purpose of the Saint Petersburg Declaration. Subsequently, a small number of commentators have opposed the existence of the customary rule as enunciated by the icrc. In their view, the prohibition

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applies only to projectiles that are designed to explode in the human body and thus, according to this view, projectiles designed for use against materiél and multi-purpose projectiles may be used. In addition to the specific prohibition it enunciated, the Saint Petersburg Declaration is important for its preambular affirmations that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”; that “for this purpose it is sufficient to disable the greatest possible number of men”; and that “this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable”. This is a basis for the fundamental ihl rule of distinction in attack and the rule prohibiting use of weapons that are of a nature to cause superfluous injury [see: Distinction; Superfluous Injury and Unnecessary Suffering]. Stuart Casey-Maslen – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.B. Bellinger iii, W.J. Haynes ii, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, 89(866) irrc (2007). Geneva Academy of International Humanitarian Law and Human Rights, ‘Exploding Bullets’, Weapons Law Encyclopedia. T. Ruys, ‘The XM25 Individual Airburst Weapon System: A “Game Changer” for the (Law on the) Battlefield? Revisiting the Legality of Explosive Projectiles under the Law of Armed Conflict’, 45(3) Israel Law Review (2012).

Secret Detention; see: International Convention for the Protection of All ­Persons From Enforced Disappearance (2006); Inhuman Treatment Security Corridors; see: Humanitarian Corridors Security Detention; see: Internment Security Zones; see: Neutralized Zones Serious Violations of the Laws and Customs of War. Serious violations of the laws and customs of war amount to war crimes [see: War Crimes]. This category refers primarily to rules deriving from the 1907 Hague Convention iv

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and its Regulations, some of which are included in the extended list of grave breaches in Article 85 api [see: Grave Breaches], as well as serious violations of Common Article 3 GCs and of apii. Serious violations of ihl constitute war crimes in both international and non-international armed conflicts. This is recognized as a norm of customary international law [rule 156 icrc Customary ihl Study]. The 1907 Hague Conventions and Regulations contain no provision dealing with individual responsibility for violations of the rules contained therein, nor do they specify a duty for States parties to prosecute those who have breached even the most serious of the laws. Nevertheless, the imt at Nuremburg found no obstacle to attaching individual criminal responsibility to serious violations of these laws, noting that: “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who c­ ommit such crimes can the provisions of international law be enforced” [Judgment, Trial of the Major War Criminals, imt, p. 223]. Article 3 icty Statute provided the icty with jurisdiction over a non-­ exhaustive list of violations of laws or customs of war emanating from the Hague Convention and Regulations, namely: employment of poisonous weapons or other weapons causing unnecessary suffering; wanton destruction of cities, towns or villages; attack of undefended towns; seizure of, or damage to institutions dedicated to religion, charity, education, arts or sciences; and plunder of public or private property. Similarly, neither Common Article 3 GCs nor apii contain provisions on grave breaches or enforcement. However, the ictr was specifically given the subject matter jurisdiction over serious violations of these provisions [art. 4 ictr Statute]. Although the icty was not given the same specific competence, it decided that customary international law imposes criminal liability for serious violations of Common Article 3 GCs and that it had jurisdiction over such violations [Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, icty, Appeals Chamber, para. 137]. The Chamber explained that Article 3 icty Statute is a “residual clause” which establishes jurisdiction over any serious violation of ihl not covered by Article 2 (grave breaches), Article 4 (genocide), or Article 5 (crimes against humanity) of the Statute [Tadić, paras. 89–93]. The icty has consistently held that for an offence to fall under the scope of Article 3 icty Statute, four conditions must be met: (i) the violation must constitute an infringement of a rule of ihl; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say it must constitute a breach of a rule protecting important values and the breach must involve grave

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c­ onsequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule [Tadić, para. 94]. In order to be characterised as a “serious” violation, the conduct need not result in actual damage to persons or objects, so long as the conduct endangers the life or health of persons and objects and breaches important values (e.g. an unsuccessful attack on a civilian population due to weapon failure, the abuse of dead bodies, or child recruitment into the armed forces). In its practice, the icty found that violations of Common Article 3 GCs (e.g. murder and cruel treatment committed in a non-­international armed conflict) are covered by Article 3 icty Statute. It also found that other violations of ihl, such as “acts or threats of terror the primary purpose of which is to spread terror among the civilian population” may constitute war crimes under the Statute so long as they meet the four conditions [Judgment, Galić, icty, Appeals Chamber, paras. 81–98; see Terrorism (ihl)]. During the negotiations on war crimes at Rome for the icc Statute, there was no disagreement that the norms laid down in the 1907 Hague Conventions and Regulations gave rise to individual criminal responsibility under customary international law. This was not, however, the case for the extended list of grave breaches laid down in api. Ultimately, the icc Statute provides for jurisdiction over twenty-six separate serious violations of ihl committed in an international armed conflict [art. 8(2)(b) icc Statute]. The types of violations include: attacks against the civilian population or civilian objects; attacks against the personnel or vehicles involved in a humanitarian or peacekeeping mission; attacks that cause widespread, long-term and severe damage to the natural environment; attacking towns, killing or wounding combatants that have laid down their arms; transfer of an occupying power’s population into the territory it occupies; attacks on religious, cultural or educational buildings; subjecting persons to physical mutilation or medical experiments; killing or wounding treacherously; pillage; employing poisonous weapons; employing asphyxiating, poisonous or other gases; committing outrages on personal dignity; committing rape or sexual slavery; using starvation as a method of warfare; and conscripting children under the age of fifteen into the armed forces or using them to participate actively in hostilities. For war crimes committed in non-international armed conflicts, the icc Statute has jurisdiction over eighteen separate serious violations of ihl “other” than serious violations of Common Article 3 GCs (over which it also exercises jurisdiction). These violations include: intentionally directing attacks against the civilian population or individual civilians not taking a

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direct part in hostilities; attacking buildings, material or transport using the distinctive emblems of the GCs; attacking personnel or material involved in a humanitarian or peacekeeping mission; attacking buildings dedicated to religion, education, art, science or charity (provided they are not military objectives); pillage, rape or sexual slavery or violence; conscripting children under the age of 15 years into the armed forces or using them to participate actively in hostilities; ordering the displacement of the population; killing or wounding treacherously; declaring no quarter; physical mutilation or medical or scientific experiments; destroying or seizing the property of an ­adversary; employing poison or poisoned weapons; employing asphyxiating, poisonous or other gases; employing bullets which expand or flatten easily; employing weapons, which use microbial or other biological agents, or toxins; employing weapons the primary effect of which is to injure by fragments; and employing laser weapons causing permanent blindness [art. 8(2) (e) icc Statute]. These rules are derived from a range of sources including the 1907 Hague Regulations, the GCs and apii. The inclusion of most of the “Hague” rules reflects the view that these norms are also applicable in noninternational armed conflicts. Most of the provisions contained in Section i also find support in apii. As regards exercising jurisdiction over serious violations of ihl at the national level, State practice and opinio iuris have evolved in recent years to recognise a customary entitlement to exercise universal jurisdiction over these crimes. Since Common Article 3 GCs clearly prohibits fundamental offences such as murder and torture, this means that such acts “were intended to be criminalised in 1949, as they were clearly intended to be illegal within the international legal order” [Judgment, Delalić et al., icty, Appeals Chamber, para. 163]. Given the complementarity principle enshrined in the icc Statute, one may assume that domestic courts would also have jurisdiction over these offences, once enabling legislation (providing for domestic jurisdiction over war crimes in the icc Statute) has been passed. For instance, Dutch courts have prosecuted serious violations of Common Article 3 GCs as war crimes, in relation to the torture of civilians by the Soviet-backed government’s Intelligence Unit in Afghanistan during the Afghan Civil War [Judgment, Hesamuddin Hesam, Court of Appeal in The Hague]. Other national courts have also relied upon customary universal jurisdiction to prosecute persons accused of serious violations of ihl in non-international armed conflicts. Yasmin Naqvi – the views expressed are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general

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Bibliography

M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. i (2002). P. Gaeta, ‘War Crimes and Other International “Core” Crimes’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014). G. Mettraux, ‘Dutch Courts’ Universal Jurisdiction over Violations of Common Article 3 qua War Crimes’, 4(2) jicj (2006). Y. Naqvi, Impediments to Exercising Jurisdiction over International Crimes (2010), pp. 32–37. L. Reydam, ‘Belgium’s First Application of Universal Jurisdiction: The Butare Four Case’, 1(2) jicj (2002). A. Segall, Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States (2001).

Seriously Endangering the Physical or Mental Health or Integrity of ­Protected Persons. Seriously endangering the physical or mental health or integrity of protected persons is a grave breach of api [art. 11 api; see: Grave Breaches]. The GCs already stipulated “wilfully causing great suffering or serious injury to body or health” and “torture or inhuman treatment, including biological experiments”, to be grave breaches [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv] if committed against persons protected by one of the GCs [see: Protected Persons; Wilfully Causing Great Suffering or Serious Injury to Body or Health; Torture; Inhuman Treatment]. The grave breach found in Article 11(4) api, however, specifically seeks to protect persons from acts or omissions that would seriously endanger the physical or mental health or integrity of protected persons, namely unnecessary medical procedures and experiments [1987 icrc Commentary api, paras. 462–467]. A grave breach of Article 11(4) api occurs when “[a]ny wilful act or omission […] seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and 2, or fails to comply with the requirements of paragraph 3 [of Article 11 api]”. First, the act must be a wilful act or omission. In contrast to paragraphs 1–3 of Article 11 api, to constitute a grave breach, the harm caused cannot result from negligence, but must have been done wilfully, not accidentally. This mens rea requirement excludes individuals with impaired intellectual ­capacity – ­whether due to immaturity (such as a child), due to a mental or intellectual disability, or being under the influence of drugs or medication [1987 icrc Commentary api, para. 493(a)]. Recklessness, however, can constitute

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­ ilfulness when the individual accepts the risk with full knowledge of what w he/she is doing [1987 icrc Commentary api, para. 493(a)]. Either a wilful act (e.g. unnecessary surgery) or wilful omission (e.g. leaving a wound unattended or depriving of food or water) can endanger the protected person’s physical or mental health or integrity. Second, to constitute a grave breach, the act or omission must “seriously endanger” the protected person’s physical or mental health or integrity. Endangerment does not require that harm actually results, but there must be a high risk that harm would result. Article 11(1) api fails to speak to the level of endangerment, as that is found in the grave breach provision in Article 11(4) api. Thus, while a higher threshold must be met for the act or omission to constitute a grave breach, in that it must be serious, it remains that “the health does not necessarily have to be affected by the act or omission, but it must be clearly and significantly endangered” [1987 icrc Commentary api, para. 493(b)]. The challenge in applying this provision is that no bright line test exists, no universal medical standards binding all medical professionals [see: Medical Standards, Generally Accepted]. Thus, “[i]t is difficult to be more specific on this point. To know whether a person’s health has or has not been seriously endangered is a matter of judgment and a tribunal should settle this on the basis not only of the act or omission concerned, but also on the foreseeable consequences having regard to the state of health of the person subjected to them” [1987 icrc Commentary api, para. 493(b)]. It is important to highlight that it is the physical or mental health or integrity that may be endangered: “[p]hysical health is endangered, for example, if a wound is allowed to become infected through lack of hygiene or care […]. ­Endangering physical integrity could be, for example, the amputation of an arm for no reason, or allowing a wound to become infected to a point where amputation becomes necessary” [1987 icrc Commentary api, para. 462]. Endangering mental health or integrity “refers to medical experiments which affect the mental equilibrium of persons subjected to them, as well as, for example, the practice of leaving a person in complete isolation for a very long period of time. In addition, mental health and integrity can be particularly endangered by the practice known as ‘brainwashing’” [1987 icrc Commentary api, para. 463]. Furthermore, according to Article 11(4) api, for an act or omission to constitute a grave breach, it must either “violate […] any of the prohibitions in Paragraphs 1 and 2 or fail […] to comply with the requirements of paragraph 3” of Article 11 api. Article 11(1) api prohibits endangering the physical or mental health or integrity of a protected person by any unjustified act or omission. This clarification – permitting only acts or omissions that are justified on

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medical and ethical grounds – is included because some justified acts or omissions can endanger a person’s health [1987 icrc Commentary api, para. 467]. Two exceptions are allowed, however, namely the execution of persons lawfully condemned to death and the omission of a surgical operation due to the patient’s refusal [art. 11(5) api]. Article 11(1) api goes on to explicitly prohibit “any medical procedure […] not indicated by the state of health of the person concerned and […] not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty”. Article 11(2) api explains that certain acts – singled out as prone to abuse – may not be carried out even with the individual’s consent: physical mutilation, medical or scientific experiments, and the removal of tissue or organs for transplantation [see: Physical Mutilation; Medical or Scientific Experiments; Removal of Tissue or Organs]. The only exception is if the “acts are justified in conformity with the conditions provided for in paragraph 1” [art. 11(2) api], meaning if the procedure will improve a person’s state of health (e.g. amputating a gangrenous arm). Article 11(3) api provides a further exception to the prohibition on the removal of tissue or organs for transplantation, namely if donations of blood are for transfusion or if donations of skin are for grafting, particularly in mass casualties situations where many could die without such donations [1987 icrc Commentary api, para. 485]. Finally, the act or omission must be directed against a person who is in the power of a party other than the one on which he depends [art. 11(4) api]. While the prohibition in Article 11(1) api applies not only to persons in the power of the adverse party but also to anyone “interned, detained, or otherwise deprived of liberty as a result of the situation referred to in Article 1 [api]”, this provision is unique and does not extend to the grave breach provision in Article 11(4) api. This means that the same acts committed against a party’s own nationals do not constitute grave breaches of this Article even if deprived of liberty due to the armed conflict. This is troublesome since it has not always proven true that a State will care for its own nationals (e.g. in World War ii). Nevertheless, this limited personal scope of application is consistent with other provisions of the GCs and api, which generally only provide specific protection to persons in the hands of the adverse party (assuming them to be at the greatest risk of harm). However, all persons could benefit from certain minimal protections [common art. 3 GCs; art. 75 api; rules 87, 90, 92, 93 icrc Customary ihl Study; see: Common Article 3; Fundamental Guarantees]. Customary ihl now indicates that such acts, including violence to life or person (in particular mutilation, cruel treatment, and torture) and subjecting

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persons to medical or scientific experiments, not necessary for their health or seriously endangering a person’s health, also constitute serious violations of ihl in non-international armed conflict [rules 90, 93 icrc Customary ihl Study; art. 8(2)(c)(i)-(ii), 8(2)(e)(xi) icc Statute]. Laura M. Olson – the views expressed are made in the author’s personal capacity and do not necessarily represent the position or view of The Carter Center Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 44–75, 229–239, 394–405, 482–484. Harvard Law School Program on International Law and Armed Conflict, ‘The Rise of International Legal Protections for Wartime Medical Care’ (2015). S. Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law (2015), pp. 79–117. O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), pp. 380–383.

Sexual Violence; see: Rape and Sexual Violence Shipwrecked. Shipwrecked persons are defined in api as “persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility” [art. 8(b) api]. So long as these persons do not engage in any act of hostility, they must be considered to be shipwrecked during their rescue, until they acquire another status under the GCs. Shipwrecked persons may become such by any cause, including by forced landings at sea, by or from aircraft [art. 12 gcii]. A person’s designation as shipwrecked arises irrespective of whether the person was a civilian or combatant or whether he or she was taking a direct part in hostilities. gcii defines protected persons as members of armed forces of a party to a conflict, as well as members of militias or volunteer corps, and organized resistance movements, or any other person who has assisted the armed forces, such as merchant marines or those spontaneously taking up arms against invading forces [art. 13 gcii]. api expands this definition to also include all civilians at peril at sea or in other waters [art. 8(b) api]. Although not generally applicable to war ships, the duty to rescue all persons in distress at sea finds support in the International Convention for the Safety of Life at Sea (solas) [regs. 1, 3, 10, 15 solas; see: Warships].

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Shipwrecked persons must be treated humanely and cared for by the parties to the conflict without discrimination [see also: rule 110 icrc Customary ihl Study]. Murder, extermination, torture, biological and medical experimentation are strictly prohibited. Shipwrecked persons must not be wilfully left without medical assistance and care [art. 12 gcii; arts. 10–11 api]. The fate of shipwrecked persons must be recorded and reported to their families; their remains must be respected [arts. 19–20 gcii; arts. 33–34 api; see: Missing ­Persons; Dead Persons]. Roger Phillips – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

W.A. Solf, ‘Development of the Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions’, in J. Pictet, C. ­Swinarski (eds.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984).

Sick-Bays. Broadly speaking, the term “sick-bay” refers to a space dedicated to the care of sick and injured people including on ships, in military bases, schools, and universities. More specifically, the term is used to indicate an area of a ship employed for the treatment and accommodation of the wounded, sick, and shipwrecked [see: Wounded and Sick; Shipwrecked]. It is within this meaning that the term is employed under ihl, where protection is provided for the sick-bays of warships [art. 28 gcii]. The protection granted to sick-bays is an expression of a fundamental principle of the GCs and ihl at large, namely respect for installations, material, and people used for, or engaged in, assisting those in need of medical treatment. Sick-bays are entitled to two spheres of protection under ihl. First, whenever fighting occurs on board a warship, ihl requires that sick-bays are respected and spared as far as possible. This provision is mostly seen as obsolete due to the development of long-range weapons that have rendered the boarding of enemy vessels during fighting unnecessary. Second, sick-bays and their equipment are protected in case of capture by enemy forces through the imposition of stringent conditions to be complied with, should enemy commanders wish to divert captured sick-bays from their purpose. The peculiarity of the treatment accorded to sick-bays under ihl emerges when comparing the protection to which they are entitled to the one provided for hospital ships, i.e. vessels solely dedicated to the assistance of the

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­ ounded, sick and shipwrecked [see: Hospital Ships]. Due to the fact that, unw like hospital ships, sick-bays are by definition close to, or rather located aboard a lawful military objective, they enjoy a less stringent protection [see: Military Objectives]. Indeed, while the elements for the discontinuance of protection of sick-bays and hospital ships correspond [arts. 34, 35 gcii; see: Acts Harmful to the Enemy], unlike hospital ships, sick-bays should be respected and spared as far as possible and are open to capture [art. 28 gcii]. Maria Giovanna Pietropaolo – the views expressed are those of the author alone and do not necessarily reflect the views of Diakonia Bibliography

K. Schorbel, ‘Buildings, Material, and Transports’, in A. Clapham, P. Gaeta, M Sassòli. (eds.), The 1949 Geneva Conventions. A Commentary (2015).

Siege. A lawful method of warfare governed by ihl, siege is an operational strategy aimed at capturing a locality or area, by surrounding it, severing its supply and communication lines, and carrying out attacks against it. The goal of siege is occupation or control of territory. As a method of warfare, siege has been employed since ancient times. It played a central role in European military history during the Middle Ages and has survived into the contemporary era. Historical siege tactics began with a call for the surrender of the area to be attacked, after which a blockade was prepared [see: Blockade]. Following that, one or more of the six S’s, upon which siege warfare rested, were employed: suborning or subverting key defenders; scaring the garrisons with propaganda; sapping the walls; starving the population; storming the defences; and shelling the besieged [B.S. Bachrach, ­‘Medieval Siege Warfare: A Reconnaissance’, 58(1) The Journal of Military History (1994), p. 125]. A besieging commander was allowed to drive escaping ­civilians back into the besieged area, to increase the pressure on the defenders’ commander to surrender [A.P.V. Rogers, Law on the Battlefield (2004), p. 102]. Defenders’ tactics included: stripping the countryside of food and water to starve the attackers; undertaking sorties to attack the besiegers and their assets; sapping the attackers’ mines and machines; suborning and subverting elements of the besieging forces; and shelling enemy positions [Bachrach, p. 125]. Some of the most noteworthy sieges of history are those of Carthage (149–146 bc); ­Jerusalem (70); Baghdad (1258); Constantinople (1453); Sevastopol (1854– 1855); and Leningrad (1941–1944). Some of the most notable sieges of the late ­twentieth and early twenty-first centuries are those of Basra (1987); Sarajevo (1992–1996); Grozny (1999–2000); Homs (2011–2014); and Aleppo (2012–2016).

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As part of the protection afforded to the sick and wounded under ihl, parties to an international armed conflict are encouraged to conclude local arrangements for the removal or exchange of the sick and wounded from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area [art. 15 gci; art. 18 gcii; see: Wounded and Sick]. Article 17 gciv extends the category of beneficiaries to the infirm, aged persons, children and maternity cases. The concept of besieged or encircled area covers not only an open area encircled by the enemy forces, but also a town or fortress offering resistance to a besieging force. The concept can also be understood to cover a whole region containing several towns or villages, except in so far as the besieged defenders have the necessary hospitals and equipment within the encircled area to ensure that the wounded, sick, and other civilians are properly looked after [1958 icrc Commentary gciv, p. 138]. What ultimately matters, as regards the concept of besieged or encircled area, is whether the wounded and sick have been cut off from adequate medical or  spiritual care owing to ongoing hostilities [2016 icrc Commentary gci, para. 1524]. The protection afforded by ihl to the civilian population during an international armed conflict applies at all times during sieges [see: Civilians; Civilian Population]. Starvation of civilians as a method of warfare is prohibited [art. 54(1) api; see: Starvation], thus sieges resorting to such tactics are unlawful [unsg, Protection of Civilians in Armed Conflict (2018), para. 23]. Besiegers and defenders must also refrain from attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population [art. 54(2) api; see Attacks against Objects Indispensable to the Survival of the Civilian Population]. Of particular relevance in context of sieges is the obligation enshrined in Article 23 gciv to allow for the free passage of all consignments of: (1) medical and hospital stores, as well as objects necessary for religious worship intended only for civilians; and (2) essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases [see: Humanitarian Relief]. While the former category may be sent to the civilian population as a whole, consignments ­falling into the second category are only entitled to free passage when they are to be used solely by children under fifteen, expectant mothers and maternity cases. The purpose of the distinction is to keep a strict check on the ­destination of consignments that may reinforce the economic potential of the enemy forces if used for other purposes [1958 Commentary gciv, p. 180]. api ­broadened this obligation to cover the “rapid and unimpeded passage of all relief ­consignments, ­equipment and personnel”, even where such ­assistance is ­destined for the ­civilian p ­ opulation of the adverse party [art. 70(2) api].

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Dinstein has raised the question whether, practically speaking, the prohibition of starvation does not in itself render sieges unlawful, as “the essence of siege warfare lies in an attempt to capture the invested location through starvation” [Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2010), p. 220]. Rogers opined that sieges could still be lawful, as long as the besieging commander allowed the safe passage of civilians and the wounded and sick out of the besieged area [Rogers, pp. 102–103]. Sieges involving bombardments which treat as a single military objective [see: Military Objectives] a number of clearly separated and distinct military objectives in a city, town, village or other area containing a similar concentration of civilians or civilian objects are considered indiscriminate and are ­prohibited [art. 51(5) api; see: Indiscriminate Attacks]. As an application of the principle of distinction [see: Distinction], Article 58(a) api requires parties to the conflict to endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives [see: Precautions, Passive]. Where the besieged locality or area is densely populated, such an obligation can be interpreted as requiring the defending commander to allow the free passage of civilians outside that area. Not allowing the free passage of civilians outside the area may lead to them being used as human shields, which is prohibited under ihl [art. 28 gciv; art. 51(7) api; see: Human Shields]. Under Article 35 gciv, protected persons (as defined in Article 4 gciv) have a right to leave the besieged locality or area [see: Right to Leave]. Successful besiegers are prohibited from pillaging the captured locality or area [art. 28 1907 Hague Convention (iv); see: Pillage]. Besiegers and defenders must take all necessary steps to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, ­historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes [see: Attacks against Historic Monuments, Works of Art and Places of ­Worship; Hospitals; Hospital and Safety Zones and Localities]. Besieged defenders must indicate the presence of such buildings or places by distinctive and visible signs, which must be notified to the enemy beforehand [art. 27(1) 1907 Hague Convention (iv)]. When a siege takes place in the context of a non-international armed conflict, the prohibition against the starvation of civilians and the protection of objects indispensable to the survival of the civilian population apply [art. 14 apii; rule 53 icrc Customary ihl Study]. If the civilian population is suffering undue hardship, because of a lack of supplies essential for its survival (such as foodstuffs and medical supplies), relief actions of an exclusively humanitarian

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and impartial nature, conducted without any adverse distinction, must be undertaken, if the besieging party so approves, where such a party is a contracting State [art. 18(2) apii]. Historic monuments, works of art or places of worship, which constitute the cultural or spiritual heritage of the civilian population in the besieged area, are also protected in a non-international armed conflict [art. 16 apii]. Kinga Tibori-Szabó – the views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers Bibliography

B.S. Bachrach, ‘Medieval Siege Warfare: A Reconnaissance’, 58(1) The Journal of Military History (1994). Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2010). J. Kraska, ‘Siege’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2017). A.P.V. Rogers, Law on the Battlefield (2004).

Signal. Signal (or, more precisely, “distinctive signal”) refers to the use of signals or messages exclusively reserved for the identification of medical units or transports [see: Medical Units and Establishments; Medical Transports]. While there is no treaty basis for an obligation to use distinctive signals, ­Article 18(1) api does require parties to endeavour to ensure that medical units and transports are identifiable. It goes on to provide that they may use certain specific light/radio signals and means of electronic identification, the technical details of which draw upon international aviation and telecommunications standards and are comprehensively listed in Annex i to api [art. 18(5) api]. The use of these distinctive signals is subject to the same provisions of the GCs and api which relate to the use of the distinctive emblem and to the prevention and repression of its misuse [see: Emblem]. The inclusion of these provisions arose on foot of a recognition, even as early as 1949, that marking alone was no longer sufficient for the effective protection of medical units or transports, and that more modern technologies for identification purposes were required [see: Marking]. The tendency of technological development to outpace legal regulation has continued: in a Report to the unsc on the protection of medical care in armed conflict (August 2016), for example, the unsg included a recommendation that the presence of medical units or transports be recorded and mapped by parties to armed conflicts, with that information regularly updated, including

Slavery

649

through enhanced information exchanges, real-time coordination with medical and humanitarian actors on the ground, and the use of appropriate technology. This is already taking place to some extent. Médecins Sans Frontières, for example, provide gps coordinates to various parties in order to minimise the potential for collateral damage to medical units or transports. The codification and systematic adoption of such practices is a potential avenue for further progress in preventing or mitigating unintended harm to medical facilities and personnel in the field. Maurice Cotter – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

K. Shaheen, ‘msf Stops Sharing Syria Hospital Locations after “Deliberate” Attacks’, The Guardian (2016). unsc, Recommendations of the unsg, Submitted pursuant to Paragraph 13 of unsc Resolution 2286 (2016), p. 7.

Slavery. The 1815 Declaration Relative to the Universal Abolition of the Slave Trade was the first international instrument to condemn slavery. Subsequently, the prohibition of slavery was included in the 1863 Lieber Code [arts. 23, 42, 58 Lieber Code]. A definition of slavery first appeared in Article 1(1) of the League of Nations Slavery Convention of 1926, which defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. This instrument was supplemented in 1956 by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, outlawing debt bondage, serfdom and inheritance or transfer of women or children. A number of human rights instruments, normally applicable to armed conflict as well, also prohibit slavery. The udhr states that “[n]o one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms” [art. 4 udhr; see also: art. 8 iccpr]. The prohibition against slavery and slavery-related practices is recognized as customary international law and as having attained ius cogens status. The icj has identified protection from slavery as an obligation erga omnes arising out of ihrl [Judgment, Barcelona Traction, Light and Power Co, Ltd. (Belgium v. Spain) – Second Phase – icj, p. 32]. In international armed conflict, the prohibition of forced allegiance of persons in occupied territory contained in the Hague Regulations [art. 45 Hague Regulations] and the provisions of the GCs relating to the labour of prisoners of war and civilians could result in slavery if they were abused [art. 28(2) gci;

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arts. 32, 33(2), 36, 49–57, 62 gciii; arts. 39–40, 51–52, 89(4), 90(3), 95, 143(1) as well as art. 2 Annex 1 gciv; rule 95 icrc Customary ihl Study; see: Deprivation of Liberty, Treatment; Workers; Compelling a Protected Person to Serve in the Forces of the Hostile Power]. In non-international armed conflict, apii explicitly lists the prohibition of “slavery and the slave trade in all their forms” as a fundamental guarantee afforded to persons who do not take a direct part, or who have ceased to take part, in hostilities [art. 4(2)(f) apii]. In addition, persons deprived of their liberty and made to work shall enjoy similar working conditions and safeguards applicable to the local civilian population [art. 5(1) (e) apii]. Article 8(2)(b)(xxii) and (e)(vi) icc Statute provides that sexual slavery is a war crime in both international and non-international armed conflict [see: Rape and Sexual Violence]. More generally, certain forms of labour that may acquire an enslaving character could amount to the grave breaches of inhuman treatment, wilfully causing great suffering or outrage upon personal dignity, in international armed conflict [arts. 130 gciii; art. 147 gciv; art. 75(2) (b) api], and to the war crime of humiliating treatment, in non-international armed conflict [common art. 3(1)(c) GCs; see: Inhuman Treatment; Wilfully Causing Great Suffering or Serious Injury to Body or Health; Outrage upon Personal Dignity; Common Article 3]. Notwithstanding the fact that an international definition of slavery was ­established in 1926, confirmed in 1956, and reproduced in the icc Statute, the parameters of the term remain unsettled. Disagreement exists over the elements of the crime and the breadth of conduct this category encompasses, ­especially considering that, in times of war, persons deprived of their liberty can be asked to perform a variety of tasks, and some prisoners may feel compelled or simply be willing to work, in order to obtain better conditions of ­detention or larger rations. Helen McDermott – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J. Allain (ed.), The Legal Understanding of Slavery: From the Historical to the Contemporary (2012). M. Cherif Bassiouni, ‘Enslavement as an International Crime’, 23 N.Y.U. J. Int’L L. & Pol (1991). Y. Rassam, ‘Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade under Customary International Law’, 39 Va. J. Int’l L. (1999). P. Sellers Viseur, ‘Wartime Female Slavery: Enslavement?’, 44(1) Cornell Int’l L.J. (2011).

Small Arms and Light Weapons

651

Small Arms and Light Weapons. Small arms and light weapons (salw) are the category of conventional weapons defined by the unga as man-portable lethal weapons, with the ability to expel or launch projectiles by explosive ­action [art. 4 International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (2005 International Tracing Instrument or iti)]. Small arms, broadly speaking, are weapons designed for individual use, including revolvers and self-loading pistols, rifles and carbines, sub-machine guns, assault rifles and light machine guns [art. 4(a) iti]. Light weapons are those weapons designed for use by two or three persons serving as a crew, although some may be carried and used by a single person. They include general purpose or universal machine guns, medium machine guns, heavy machine guns, rifle grenades, under-barrel grenade launchers and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, man portable launchers of anti-tank missile and rocket systems, man portable launchers of anti-aircraft missile systems, and mortars of a calibre of less than 100 millimetres [art. 4(b) iti]. The vast majority of violations of ihl in contemporary armed conflicts are carried out using salw [A. Feinstein, The Shadow World: Inside The Global Arms Trade (2011)]. This is unsurprising, in view of the suitability of salw for irregular warfare and criminality, being relatively easy to conceal and move illicitly across international borders and within States. Nonetheless, historically, and for understandable reasons, most international efforts towards non-­proliferation have been aimed at protecting against the use of non-­ conventional nuclear, biological and chemical weapons, or, as they have come to be known weapons of mass destruction. The international regulation of salw leaves individual States with a broad margin to determine whether and how to restrict the manufacture, sale, ­export, and use of salw. The UN first addressed small arms controls in Resolution 46/36 (1991). Ten years later, in 2001, UN member States adopted the “Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons”. The culmination of international efforts to regulate salw is the 2013 Arms Trade Treaty, the first multilateral treaty to regulate the arms trade including salw [see: Arms Trade Treaty (2014)]. Much of the international regulation of salw, including the Arms Trade Treaty, is focused on regulating international flows of salw from one State to another. Such efforts are limited in the extent to which they can prevent the central problem of diversion of salw, where a legitimate end-user of a weapons shipment forwards the arms to another party. Arms regulation has also had little effect on the proliferation of existing weapons in circulation. Inad-

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equate stockpile management following the dissolution of the Soviet Union led to wide availability of salw for export and use in subsequent major armed conflicts, in the African Great Lakes conflicts and in the former Yugoslavia. Similarly, today’s stockpiles held in failed States such as Gaddafi’s Libya will, in the absence of proper management, provide ready availability of weaponry for tomorrow’s armed conflicts. Tomas Hamilton – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

A. Boivin, Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons (2005). S. Casey-Maslen (ed.), Weapons under International Human Rights Law (2013). A. Clapham, ‘Weapons and Armed Non-State Actors’, in S. Casey-Maslen (ed.), Weapons under International Human Rights Law (2013). A. Efrat, Toward Internationally Regulated Goods: Controlling the Trade in Small Arms and Light Weapons (2010). A. Tan, The Global Arms Trade: a Handbook (2014).

Sniping. Sniping, in the military sense, consists of targeting specific enemy ­individuals or objects at a long-range distance with a precision fire weapon ­during combat operations. The expression sniping also comes from the fact that the source of the fire is usually well concealed and difficult to locate ­[ Judgment, Galić, icty, Trial Chamber (2003), para. 183]. In the traditional military sense, snipers operate in a team of at least two persons, the shooter and the spotter, taking turns. They have specialized training and equipment and their mission is to deliver discriminatory, highly accurate rifle fire against enemy ­targets. ­According to the U.S. Army Sniper Training, the mission of the sniper is to s­ upport combat operations and to collect and report battlefield ­operations [see also: Judgment, D. Milošević, icty, Trial Chamber, para. 109]. ihl prohibits the targeting of civilians and civilian objects. It follows that in as far as sniping is directed at legitimate military targets, it is allowed under ihl [see: Distinction; Proportionality; Targeted Killing]. However, since the war in the former Yugoslavia and particularly the siege of Sarajevo, sniping has taken a different meaning and the term sniper has evolved to indicate a “shooter who operates alone” and “fires at whoever he gets in sight”, with rifles that were described as lacking precisions [Judgment, Perišić, icty, Trial Chamber, para. 327]. Indeed, during the siege of Sarajevo, the victims of sniping incidents

Special Agreements

653

were mostly and notoriously civilians or persons not taking active part in the hostilities. ihl prohibits not only direct attacks against civilian objects, but also acts or threats of violence with the primary purpose of spreading terror amongst the civilian population [art. 51(2) api; art. 13(2) apii; see also: Terrorism (ihl)]. According to the icrc Customary ihl Study, this prohibition amounts to a norm of customary international law applicable to both international and non-international armed conflicts [rule 2 icrc Customary ihl Study; see also: Judgment, Galić, icty, Appeals Chamber (2006), paras. 87–90]. Several icty cases dealt with the campaign of sniping carried out against the civilian population in Sarajevo and found, beyond reasonable doubt, that civilians were deliberately targeted [Perišić, paras. 534–549; Galić (2003), paras. 582–594; Galić (2006), para. 106; Judgment, Karadžić, icty, Trial Chamber, paras. 3968–3970] and that the campaign of shelling and sniping against the civilian population in Sarajevo fell within the scope of “acts of violence”, the primary purpose of which was to spread terror amongst the civilian population, prohibited under ihl [Galić (2006), paras. 106, 87–107]. Maddalena Ghezzi – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

‘Sniper Training’, Field Manual No. 23-10, Headquarters Department of the Army (1994).

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

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Special Agreements

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

Specially Protected Zones

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The parties to a non-international armed conflict are not restricted in what may be included in such special agreements, as long as the rights of the beneficiaries under Common Article 3 GCs are not limited. Special agreements can be used to explicitly restate the application of existing obligations, such as those found in customary international law. They may also agree to the application of obligations that would not usually apply in a non-international armed conflict, thereby creating new obligations for the parties. It is sometimes debated whether peace agreements [see: Peace Treaty] or ceasefire agreements should fall within the category of special agreements concluded pursuant to Common Article 3 GCs. The icrc is of the view that this is possible when such agreements contain humanitarian norms. It is noteworthy that the negotiators to the 2016 peace agreement between the farc and the Colombian government declared that the peace accord constituted a “special agreement” under the terms of Common Article 3 GCs. Katharine Fortin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

S. Casey-Maslen, ‘Special Agreements’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015). E. Heffes, M. Kotlik, ‘Special Agreements as a Means of Enhancing Compliance with ihl in Non-International Armed Conflicts: An Inquiry into the Governing Legal ­Regime’, 96(895/896) irrc (2014).

Specially Protected Zones. This notion encompasses all areas that enjoy special protection from attack under ihl, such as hospital and safety zones and localities [see: Hospital and Safety Zones and Localities], neutralized zones [see: Neutralized Zones], non-defended localities/open towns, and demilitarized zones [see: Attacks against Non-Defended Localities and Demilitarised Zones]. Their purpose is to shelter or protect more effectively persons that do not or no longer take direct part in hostilities. Specially protected zones share certain features. First, they may be established by the parties to the conflict on their own initiative or upon proposal by different actors, such as the icrc or the protecting powers [see: Protecting ­Powers]. Second, their creation is an option, not an obligation. Third, specially protected zones must not be employed for any kind of military activities, ­including the transit of equipment and troops, or be militarily defended if ­attacked. Fourth, their boundaries must be clearly marked in order to be ­easily recognisable by the belligerents. Fifth, except for non-defended

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l­ocalities/open towns, they can only be established by mutual agreement between the parties to a conflict. The above-mentioned zones enjoy special protection from attack as long as the formal requirements prescribed by treaty law are fulfilled [e.g. art. 60 api]. The loss of special protection does not extinguish the general protection they enjoy as civilian objects or the protection afforded to the persons sheltered therein. Attacks against some of these zones may amount to war crimes [art. 85(3)(d) api; art. 8(2)(b)(v), 8(2)(e)(iv) icc Statute; art. 3(c) icty Statute]. ihl treaties envisage the institution of specially protected zones in international armed conflicts only. In non-international armed conflicts, they may be established by way of special agreements [common art. 3(3) GCs; see: Special Agreements]. Practice shows that specially protected zones have been created in both international armed conflicts (e.g. in Osijek, Croatia, 1991) and noninternational armed conflicts (e.g. in Jaffna, Sri Lanka, 1990). Specially protected zones under ihl are to be distinguished from equivalent safe areas established by the unsc. The latter are usually established when the civilian population is made the object of attacks in a systematic manner. It should be noted that, by acting under Chapter vii of the UN Charter, the unsc may impose the creation of safe areas without the consent of the parties to the conflict or of the territorial State where they are to be located [e.g. unsc Resolution 824 (1993)]. Vito Todeschini – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists Bibliography

T. Desch, ‘Safety Zones’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2015). B.N. Patel, ‘Protection Zones in International Humanitarian Law’, 39 The Indian Journal of International Law (1999). N. Ronzitti, ‘Protected Areas’, in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 ­Geneva Conventions: A Commentary (2015).

Spies. Gathering information about the enemy through, for example, reconnaissance [see: Reconnaissance Missions], satellite, or aerial imagery is not prohibited under international law, neither in peacetime nor in wartime [arts. 24 1899 and 1907 Hague Regulations]. This is also the case for spies. Therefore, a person engaged in espionage is not, as such, responsible for violating ihl and, moreover, cannot be regarded as a war criminal. On the other hand, States have criminalised espionage under their domestic laws.

Spies

657

Under the law of international armed conflict, a spy has been defined as a person who, acting clandestinely or on false pretences, obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party [arts. 29 1899 and 1907 Hague Regulations; see also: art. xxvii 1923 Hague Rules of Air Warfare]. This definition is further supported by Article 46 api which has been described as containing “the complete characteristics of the spy as he is defined in the Hague Regulations” [1987 icrc Commentary api, p. 565]. Neither the Hague  ­Regulations nor api specify the type of information that is covered by the definition of espionage. api clarifies that the information must be of ­military value, but this applies only in relation to occupied territory [art. 46(3) api]. It appears that each party to the conflict may determine what type of information could fall under the definition of espionage [1987 icrc Commentary api, p. 566]. As to the relevant territory to which espionage applies, the Hague Regulations refer to “the zone of operations of a belligerent”, whereas api points to the “territory controlled by an adverse party”. The latter term appears to be more appropriate as it would cover the entire territory of a State and not just the areas that are directly affected by armed conflict. Finally, api seems to limit the definition of a spy to members of armed services only, whereas, under the Hague Regulations, any individual (including civilians) can be considered to be a spy [cf. art. 46 api with arts. 29 1899 and 1907 Hague Regulations]. Whether a spy has the right to prisoner of war status depends to a large extent on the timing of his or her apprehension [see: Prisoners of War]. According to api, any member of the armed forces of a party to the conflict who falls into the power of an adverse party while engaging in espionage shall not have the right to prisoner of war status [art. 46(1) api; rule 107 icrc Customary ihl Study]. In this regard, note should be made of Article 5 gciv concerning derogations, which provides that, when a State party is satisfied that an individual protected person is “definitely suspected of”, or engaged in, activities hostile to the security of the State on its territory, that person shall not be entitled to protection pursuant to gciv, if that would be prejudicial to the security of the State [see: Derogation]. It is not clear whether espionage is encompassed by the term “activities hostile to the security of the State”, but the icrc suggests that it “probably” is [1958 icrc Commentary gciv, p. 56]. Moreover, Article 5 gciv provides that a spy detained in occupied territory will forfeit rights of communication contained in gciv, in cases where “absolute military security so requires”. In any event, if a spy is caught in the act, he or she will still enjoy the fundamental guarantees of Article 75 api, if applicable [see: Fundamental Guarantees]. Moreover, a spy may not be punished without having been

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Spies

­ reviously put on trial [art. 30 1899 and 1907 Hague Regulations; art. 5 gciv; p rule 107 icrc Customary ihl Study]. In cases where there is doubt as to whether a detained individual is a spy, he or she shall be presumed to have prisoner of war status, until his or her status has been determined by a competent tribunal [art. 5 gciii; art. 45(1) api; 1987 icrc Commentary api, pp. 550–551, 564]. Translating the above into practical terms, this means that a uniformed soldier of State A sent behind enemy lines to collect information concerning hostile State B would not be considered a spy. Also, soldiers or civilians tasked with the delivery of despatches destined either for their own army or for that of the enemy, and who are carrying out their mission openly, are not spies [arts. 29 1899 and 1907 Hague Regulations]. However, a person dressed in civilian clothes, collecting information about a State which could be considered to fall under the definition of espionage (see above), with the intent of passing on that information to a hostile State, meets the definition of a spy under ihl. A resident of an occupied territory who gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage, unless he or she does so through an act of false pretences or deliberately in a clandestine manner. Such a person may only be deprived of prisoner of war status if captured while engaging in espionage [art. 46(3) api]. A member of the armed forces of a State involved in the conflict, who is not a resident of an occupied territory and who engages in espionage in the o­ ccupied territory, may not be treated as a spy, unless he is captured before he re-joins the armed forces to which he belongs [art. 46(4) api]. This is in line with the Hague Regulations of 1899 and 1907, which provide that a spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war and incurs no responsibility for his p ­ revious acts of espionage [art. 31 1899 and 1907 Hague Regulations]. However, this is not the case with persons who have no armed force to return to, i.e. civilians. They can, thus, be tried for their previous acts of espionage if captured at a later time [Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), p. 211]. If a person is spying on his own State, he may be liable for treason as well as espionage, depending on the relevant national law. Amir Čengić – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), pp. 208–213. F. Lafouasse, ‘L’Espionnage en Droit International’, 47(1) Annuaire Français de Droit International (2001).

Starvation

659

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

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the production of foodstuffs, crops, livestock, drinking water installations, and supplies and irrigation works [art. 54(2) api; art. 14 apii; see: Attacks against Objects Indispensable to the Survival of the Civilian Population]. Another corollary of the prohibition concerns the free passage of relief consignments [see: Humanitarian Relief]. Even before the prohibition of starvation was codified by api, Article 23 gciv required parties to an international armed conflict to allow the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. api broadened this obligation to cover the “rapid and unimpeded passage of all relief consignments, equipment and personnel”, even where such assistance is destined for the civilian population of the ­adverse party [art. 70(2) api]. In non-international armed conflict, if the civilian population is suffering undue hardship because of the lack of supplies essential for its survival (such as foodstuffs and medical supplies), relief actions of an exclusively humanitarian and impartial nature, conducted without any adverse distinction, must be undertaken, if the besieging party so approves, where such a party is a contracting State [art. 18(2) apii]. Also, a corollary of the prohibition of starvation is the obligation of parties in an international armed conflict to respect and protect humanitarian relief personnel [art. 71(2) api]. The safety and security of humanitarian relief personnel is an indispensable condition for the delivery of humanitarian relief to civilian populations threatened with starvation [rule 53 icrc Customary ihl Study]. While Article 18(2) apii requires that relief actions be organized for the civilian population in need, the Protocol does not contain a specific provision on the protection of humanitarian relief personnel. Nonetheless, the obligation is considered a norm of customary international law in both ­international and non-international armed conflicts [rule 31 icrc Customary ihl Study]. The prohibition of starvation does not outlaw blockades, embargoes or siege warfare, as long as their purpose is not to starve the civilian population [see: Blockade; Embargo; Siege]. Under the icc Statute, intentionally using starvation of civilians as a method of warfare, by depriving them of objects indispensable to their survival, ­including wilfully impeding relief supplies as provided for under the GCs, is a war crime in international armed conflicts [art. 8(2)(b)(xxv) icc Statute]. While the prohibition of starvation only applies to civilians during the ­conduct of hostilities, belligerents have a duty of care towards those hors de combat, which entails a responsibility to provide such categories of persons with adequate nourishment [2017 icrc Commentary gcii, para. 1432; art. 26 gciii; see: Hors de Combat].

State Responsibility

661

Kinga Tibori-Szabó – the views expressed are those of the author alone and do not necessarily reflect the views of the Kosovo Specialist Chambers Bibliography

S. Hutter, Starvation as a Weapon: Domestic Policies of Deliberate Starvation as a Means to an End under International Law (2015). D. Murray, Practitioners’ Guide to Human Rights Law in Armed Conflict (2016). S. Sivakumaran, The Law of Non-International Armed Conflict (2012). UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict, 383 Joint Service Publication (2004).

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

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

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e­ xercise certain public functions, including acts amounting to direct participation in hostilities (for instance, the provision of tactical intelligence, operation of weapon systems, or protection of military objectives, up to combat functions proper [see: Direct Participation in Hostilities]. These functions are inherently “governmental” in the sense of Article 5 ilc Draft Articles. Furthermore, States bear responsibility for ihl violations committed by persons or entities who act on the instructions of, or under the direction or control of, that State [art. 8 ilc Draft Articles]. For attribution under this rule, international law requires effective control over the specific act in question [Case Concerning Application of the Convention on the Prevention and ­Punishment of the Crime of Genocide, para. 405]. The conduct of insurrectional movements is also attributed to the State if the movement becomes the new government, or to a new State if the group succeeds in establishing one [art. 10 ilc Draft Articles]. Civilians who, on the approach of the enemy and in the absence of regular armed forces, take up arms to defend themselves acquire the right to participate in the fighting [art. 4(A)(6) gciii; see: Combatants], but their acts are attributable to the State for which they fight [art. 9 ilc Draft Articles]. Thus, the State bears responsibility for ihl violations committed by such civilians. Finally, any conduct that the State acknowledges and adopts as its own, even if carried out by private persons or groups, can be attributed to it [art. 11 ilc Draft Articles]. A State bears responsibility for conduct attributable to it under international law, provided that the conduct is not covered by any circumstance precluding wrongfulness. ihl foresees a more limited number of defences than those available under the general law on State responsibility, namely consent, selfdefence, countermeasures, force majeure, distress and necessity. To the extent that ihl rules have peremptory character (ius cogens), the applicability of any of the above circumstances precluding wrongfulness is ruled out. In addition, it can be contended that the defences of consent, self-defence, necessity, and distress do not apply to the violation of ihl rules (with some limited exceptions). States cannot consent to violations of ihl obligations protecting individuals’ rights [art. 51 gci; art. 52 gcii; art. 131 gciii; art. 148 gciv]. The fact that ihl obligations must be respected in all circumstances [common art. 1 GCs; art. 1 api] also supports that conclusion. The commentary to Article 21 ilc Draft Articles clearly points out that self-defence does not preclude the wrongfulness of conduct contrary to obligations under ihl and non-derogable human rights provisions. It is the very essence of ihl to apply equally to all parties to an armed conflict, irrespective of the ius ad bellum [see: Ius ad Bellum]. Therefore, an action in self-defence to repel an act of aggression cannot

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justify the violation of the ­applicable rules of the ius in bello. The plea of necessity is likewise unavailable to cover conduct in armed conflict, except where expressly provided for in the primary rules. The rules of ihl are intended to apply in exceptional situations of peril, which engage States’ essential interests. It would be contrary to the object and purpose of ihl to permit States to invoke necessity when considerations of military necessity are already embedded in the relevant primary rules [art. 25 ilc Commentary on the Draft Articles; see: Military Necessity]. Similarly, it can be presumed that the formulation of ihl rules already takes into account that individuals on the battlefield act in a state of distress, desperately trying to save their lives and the lives of their comrades. Therefore, States may not invoke this condition as a circumstance precluding the wrongfulness of conduct contrary to ihl [M. Sassòli, State Responsibility for Violations of International Humanitarian Law, 84 irrc (2002), p. 417]. States responsible for ihl violations must cease the wrongful conduct and make full reparation [see: Reparations] for the injury caused [arts. 30–31 ilc Draft Articles]. The consequences of the breach may vary depending on the nature of the primary obligation breached, and specifically on whether it is owed to the international community as a whole (i.e. having erga omnes character), or has peremptory character. Whenever a State breaches one of these rules, any State can invoke the responsibility of the wrongdoer and claim reparation in the interest of the beneficiaries of the obligation breached. In case of serious breaches of ius cogens rules, States must cooperate to bring the situation to an end and must not recognize it as lawful. It is unclear, however, whether States other than the injured State may take countermeasures in the collective interest [art. 54 ilc Draft Articles]. As can be readily seen, in an international community that remains dominated by States, these play a crucial role in the enforcement of ihl. Giulia Pinzauti – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

A. Pellet, ‘The Definition of Responsibility in International Law’, in J. Crawford, A. ­Pellet, S. Olleson (eds.), The Law of International Responsibility (2010). M. Sassòli, State Responsibility for Violations of International Humanitarian Law, 84 irrc (2002).

Statelessness. The term statelessness concerns the situation where a person has no nationality. This definition is endorsed in the UN Convention relating to the Status of Stateless Persons (1954). According to Article 1, the term

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

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

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Forms of Racial Discrimination (cerd); art. 9(1) of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (cedaw)]. Second, children have a right to a nationality under customary international law as restated in a broad range of both universal and regional human rights treaties, including the iccpr [art. 24], the Convention on the Rights of the Child (crc) [art. 7], the 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families [art. 29], the 1990 African Charter on the Rights and Welfare of the Child [art. 6] and the 2005 Covenant on the Rights of the Child in Islam [art. 7]. ihrl is also crucial for protecting the rights of stateless persons, since most internationally recognized human rights apply without regard to nationality or statelessness (except for the right to entry and the right to vote). States parties to the 1954 Convention relating to the Status of Stateless Persons are also bound to grant them basic rights and guarantees that are very similar to the refugee status. ihl is also plainly applicable to stateless persons on two main grounds. First, they are protected as civilians provided they are not directly participating in hostilities [see: Civilians; Direct Participation in Hostilities]. In such a case, stateless persons benefit from the general protection to the civilian population both in times of international and non-international armed conflicts [arts. 48–58 api; arts. 13–18 apii]. Second, stateless persons are also unambiguously considered as protected persons in international armed conflicts [see: Protected Persons]. The definition of protected persons under Article 4 gciv includes indeed any persons who “find themselves, in case of a conflict or occupation, in the hands of a Party […] of which they are not nationals”. They accordingly enjoy the protection of all the provisions of gciv, including notably the right to leave, the grounds and procedures governing internment or assigned residence, as well as protection against deportation and forcible transfer [see: Right to Leave; Internment; Assigned Residence; Deportation or Transfer of Civilians]. Their status as protected persons has been further confirmed by Article 73 api. However this provision begs more questions than it provides answers, because it is curiously more restrictive than Article 4 gciv. Article 73 api is limited to persons who were considered as stateless persons under the relevant international instruments or domestic legislation “before the beginning of hostilities”. According to the icrc Commentary, this qualification does not mean that those becoming stateless persons after the hostilities are deprived from the protection granted by gciv as “this would be contrary to the ratio legis of the article, which is to improve their protection” [1987 icrc Commentary

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api, para. 2979]. In other words, the most favourable treatment guaranteed by Article 4 gciv remains plainly applicable and neutralizes the restrictive stance of Article 73 api. Vincent Chetail – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

C. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, 10(1–2) International Journal of Refugee Law (1998). J. Bhabha (ed.), Children without a State: A Global Human Rights Challenge (2011). unhcr, Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within the Context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees (2014). L. van Waas, Nationality Matters: Statelessness under International Law (2008). D. Weissbrodt, C. Collins, ‘The Human Rights of Stateless Persons’, 28(1) Hum. Rts. Q (2006).

Statutory Limitations. Statutory limitations prevent a criminal prosecution from taking place if a certain period of time has passed since the commission of the offence. The principle behind such limitations is that, with the passage of time, it becomes much more difficult to ensure fair proceedings. As evidence deteriorates or is destroyed, and witnesses become less reliable and/or pass away, ascertaining the truth becomes much more challenging. For these reasons, statutory limitations are well known in most municipal legal systems, although less so in common law systems than in civil law ones. The issue of statutory limitations and war crimes rose up the international agenda in the 1960s. The moment approached when domestic statutory limitations would begin to apply to alleged Nazi war criminals. In response, ­national legislation was passed to remove limitations for certain categories of offences. Internationally, work began on the Convention on the Non-­Application of Statutory Limitations to War Crimes and Crimes against Humanity, which was adopted by the unga in 1968. However, there was a significant amount of opposition to the Convention. Many States were dissatisfied with how the issue of retroactivity was dealt with, and ratification has remained low ­(fifty-five States). Ratification of the similar European Convention on the Non-­ Applicability of Statutory Limitations to Crimes against Humanity and War Crimes 1974 has also been low (eight States). The pertinent question is whether there is a customary international law rule that removes statutory limitations for war crimes. Opinion on this is

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d­ ivided. While the Nuremberg and Tokyo Charters, as well as the icty and ictr Statutes, are silent as to statutory limitations, in the practice of the icty they have not been applied, even as mitigating circumstances in sentencing. The drafters of the icc Statute took a more direct approach, and Article 29 icc Statute expressly renders statutory limitations inapplicable to crimes within the icc’s jurisdiction, including war crimes. However, the drafting of Article 29 was controversial. Indeed, the drafting process revealed little unanimity, and before the final text of the provision was reached, a number of different options were put forward, including leaving the decision on time bars to be made in individual cases. Some States considered Article 29 icc Statute to be a codification of customary law as it stands, whereas others considered it to be progressive development and not yet reflective of custom. The fact that this same debate was conducted when the 1968 Convention was drafted suggests that little progress has been made towards recognizing a customary rule. That being said, the icrc Customary ihl Study sets out evidence for finding that the non-applicability of statutes of limitations to war crimes is now a norm of customary international law [rule 160 icrc Customary ihl Study], and a number of changes to domestic legislation support this. The question therefore remains open. Emma Irving – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

R.A. Kok, Statutory Limitations in International Criminal Law (2007). R. Miller, ‘The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity’, 65(3) The ajil (1971). W. Schabas, ‘Article 25. Individual Criminal Responsibility’, in W. Schabas (ed.), The International Criminal Court: A Commentary on the Rome Statute (2016). C. Van Den Wyngaert, J. Dugard, ‘Non-Applicability of Statute of Limitations’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002).

Summary Proceedings; see: Regularly Constituted Courts Superfluous Injury and Unnecessary Suffering. Under the law of armed ­conflict, it is prohibited to use means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering. The prohibition is one of the principles of the law of armed conflict regulating means (and more recently also methods) of warfare, which the icj has held to be

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“­intransgressible” and “cardinal” [Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, icj, p. 257; see: International Humanitarian Law, General Principles of]. Throughout its evolution, the prohibition is an expression of the underlying precept that armed conflict inevitably entails a certain amount of suffering and injury of persons who are lawful targets, but that the notions of military necessity and humanity impose limitations on the right of parties to an armed conflict to adopt means of injuring the enemy [see: Military Necessity; Humanity]. As such, the prohibition is one of the few instances in which the law of armed conflict grants a certain degree of protection to persons who are lawful targets [see: Combatants; Direct Participation in Hostilities]. The prohibition of superfluous injury and unnecessary suffering has a long historical pedigree. Early sources include the 1868 St. Petersburg Declaration [see: Saint Petersburg Declaration (1868)], the 1874 Brussels Declaration (albeit never formally adopted), the 1899 Hague Declarations concerning ­Asphyxiating Gases and concerning Expanding Bullets [see: Geneva Gas Protocol (1925); Chemical Weapons Convention (1992); Dum-Dum (Expanding) Bullets] as well as the 1899 and 1907 Hague Regulations [arts. 23(e) 1899 and 1907 Hague Regulations; see Hague Convention (iv) Concerning the Laws and Customs of War on Land (1907); Hague Regulations (1907)]. In contemporary conventional law of armed conflict, the principle is stipulated in ­Article 35(2) api, the Preamble to the ccw (as well as Article 6(2) Protocol ii and Article 3(3) Amended Protocol ii thereto), and the Preamble of the Ottawa Convention [see: Convention on Certain Conventional Weapons (1980); ­Anti-Personnel Mine Ban Convention (1997)]. A violation of the prohibition also amounts to a war crime in international armed conflicts and, thus, entails individual criminal responsibility in accordance with the icc Statute [art. 8(2) (b)(xx) icc Statute]. The prohibition of the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is also a customary rule applicable in international and non-international armed conflicts [rule 70 icrc Customary ihl Study]. Although the prohibition of superfluous injury and unnecessary suffering displays a significant degree of continuity throughout its evolution, its actual wording has evolved somewhat. The earlier expressions in the Hague Regulations of 1899 and 1907 provided that the rule extends to the employment of “arms, projectiles, or material calculated to cause unnecessary suffering”. However, already in 1899, the authentic French text described prohibited arms, projectiles, or material as those “propres à causer des maux superflus”, which would translate into arms, projectiles, or material “of a nature to cause superfluous injury”. The French text hence indicated a more objective standard that

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considers the actual property of arms, projectiles, or material, rather than the intention of those who have developed them, as determinative of whether or not the prohibition is violated. Subsequent treaty texts and Rule 70 icrc Customary ihl Study employ the more objective standard “of a nature to”, with the exception of Article 6(2) Protocol ii ccw, which prohibits the use of boobytraps “designed to” cause superfluous injury or unnecessary suffering, thereby indicating a return to the more subjective standard. Article 3(3) of Amended Protocol ii ccw combines the objective and subjective standards by prohibiting the use of any mine, booby-trap or other device “which is designed or of a nature to cause superfluous injury or unnecessary suffering”. Furthermore, the prohibition has evolved as far as the objects of regulation are concerned. While initially pertaining to “arms, projectiles, or material” in the Hague Regulations of 1899 and 1907, the provision in api, the Preambles of the ccw, Ottawa Convention, and the icc Statute extend to “weapons, projectiles and material and methods of warfare”. The icrc Customary ihl Study instead refers to “means and methods”. A number of rules of conventional and customary law of armed conflict prohibit certain weapons, projectiles and material as falling foul of the prohibition of superfluous injury and unnecessary suffering. These include explosive bullets, expanding bullets, non-detectable fragments, blinding laser weapons, poison or poisoned weapons, and asphyxiating gases. Beyond these specific rules, some States have also extended the prohibition of superfluous injury and unnecessary suffering to lances or spears with a barbed head, serratededged bayonets, biological and chemical weapons, certain booby-traps, antipersonnel mines, torpedoes without self-destruction mechanisms, incendiary weapons and nuclear weapons [J.-M. Henckaerts, L. Doswald-Beck, Customary ­International Humanitarian Law (2005), Vol. i, pp. 243–244]. However, as the icrc points out, “[t]here is insufficient consensus concerning all of these examples to conclude that, under customary international law, they all violate the rule prohibiting unnecessary suffering” [Henckaerts, Doswald-Beck, p. 250]. Beyond the aforementioned examples – which are subject to distinctive conventional or customary regulation as a specific manifestation of the general prohibition of superfluous injury and unnecessary suffering – and broad agreement that that general prohibition refers to the effect of a given weapon on persons who are lawful targets, the meaning and significance of that prohibition is surrounded by a fair degree of uncertainty. These uncertainties pertain to matters such as how the suffering can be determined to be unnecessary and the injury to be superfluous and how the prohibition applies in the realm of methods of warfare. The problem of finding generally acceptable answers to

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such questions is epitomized by the unsuccessful attempt of the icrc to clarify the normative contours of the prohibition in its SIrUS Project, initiated in 1996 and withdrawn in 2001. Notwithstanding the controversies surrounding the aforementioned questions, the prohibition of superfluous injury and unnecessary suffering retains its relevance in the context of the weapons review by the organization “Article 36” and as driver of regulating or prohibiting certain weapons, projectiles and material [see: New Weapons]. Jann K. Kleffner – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

M. Aubert, ‘The International Committee of the Red Cross and the Problem of Excessively Injurious or Indiscriminate Weapons’, 279 irrc (1990). M.G. Cowling, ‘The Relationship between Military Necessity and the Principle of Superfluous Injury and Unnecessary Suffering in the Law of Armed Conflict’, 25 South African Yearbook of International Law (2000). H. Meyrowitz, ‘The Principle of Superfluous Injury or Unnecessary Suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol i of 1977’, 299 irrc (1994).

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

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i­ mtfe Charter) stipulated that acting pursuant to an order of the ­government or of a superior “shall not free [the subordinate] from responsibility, but may be  considered in mitigation of punishment if the Tribunal determines that justice so requires”. The test whether mitigation would be available to the accused was “not the existence of the order, but whether moral choice was in fact ­possible” [Judgment, Trial of Major War Criminals, imt, Part xxii, p. 466]. In light of the nature and extent of the crimes, the imt refused palliating punishment. Article II(4)(b) Control Council Law No. 10 and subsequent Nuremberg ­trials confirmed the principle of absolute liability with the possibility of mitigation of sentence [see Judgment, Brandt et al. (Medical Case), US Military Tribunal, p. 227; Judgment, List et al. (Hostage Case), US Military Tribunal, pp. 1236–1238]. In the words of the US Military Tribunal “[t]he subordinate is bound only to obey the lawful orders of his superior and, if he accepts a criminal order and executes it with a malice of his own, he may not plead superior orders in mitigation of his offense” [Judgment, Einsatzgruppen, US Military Tribunal, pp. 469–471]. The 1949 GCs established the obligation upon States to “provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the [Conventions]” [arts. 46 gci; 50 gcii; 129 gciii; 146 gciv; see: Penal Sanctions and Legislation]. However, they remain silent as to whether and under which conditions the subordinate alleged to have committed a grave breach may raise the superior order defence. Likewise, efforts to include such a regulation in the 1977 APs failed. Thus, this question is left to customary law [see: International Customary Law]. Based on existing case-law at the time, Principle iv of the 1950 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and its Judgment stipulated: “[t]he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” [see also: rules 154–155 icrc Customary ihl Study]. The formulation of Article 8 imt Charter was later imported, with minor modifications, into the statutes of other international(ized) tribunals created in the 1990s and thereafter [art. 7(4) icty Statute; art. 6(4) ictr Statute; art. 6(4) scsl Statute; art. 3(3) stl Statute; art. 29(4) eccc Law; Section 21 untaet Regulation No. 2000/15; art. 16(1)(d) Law on Specialist Chambers and Specialist Prosecutor’s Office]. The icty appears to have accepted mitigation in case the accused had a choice whether or not to commit the crimes and if the order was not manifestly illegal [Sentencing Judgment, Bralo, icty, Trial Chamber, paras. 55–56].

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Article 33(1) icc Statute, in its chapeau, reaffirms the principle of absolute liability: “[t]he fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility”. The order, whether military or civilian, may be written or oral, direct or implied, and must be issued by the competent organ. It may also stem from a prescription of law. A contentious issue remains whether the term “government” applies only to recognized governments or also to de facto governments. It is argued that, in a civilian context, the superior must have effective control over the subordinate, a factor that is presumed in the military context. Article 33(1)(a)-(c) icc Statute allows for an exception to this principle if three conditions are cumulatively met: (a) the person was under a legal obligation (at the time of the commission of the crime) to obey orders of the government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. Article 33(2) icc Statute provides that “orders to commit genocide or crimes against humanity are manifestly unlawful”. This means that in the context of genocide and crimes against humanity, the icc Statute embraces the absolute liability principle. Conversely, orders to commit war crimes or the crime of aggression are not considered, per definitionem, manifestly unlawful, but must be assessed on a case-by-case basis. The District Court of Jerusalem famously stated that assessing the manifest unlawfulness of an order is not a question of “[…] mere formal illegality, […] discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself […]” [Judgment, Eichmann, District Court of Jerusalem, para. 219]. The superior order defence must be distinguished from the perpetrator’s mens rea, which pertains to his or her knowledge and intent, and from the concept of duress. While the perpetrator is acting under duress when subjected to a coercive environment, the perpetrator acting pursuant to a superior order complies with a legal duty. It is conceivable that both concepts factually overlap. Lastly, in case the subordinate errs about the lawfulness of the order that is not manifestly unlawful, the defence of mistake of law may apply [art. 32(2) icc Statute]. The fulfilment of the narrow conditions set out in art. 33(1)(a)-(c) icc Statute leads to the exclusion of the subordinate’s individual criminal responsibility and, thus, to an acquittal. It is yet unclear whether the defence will be ­considered by the icc as an excuse (excluding the culpability of the wrongdoer) or a justification (rendering the illicit conduct lawful). In case the superior order defence is unsuccessfully raised, the accused may still seek a mitigation of the sentence [art. 78(1) icc Statute; rule 145 icc rpe].

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Eleni Chaitidou – the views expressed are those of the author alone and do not necessarily reflect the views of the International Criminal Court Bibliography

Y. Dinstein, ‘The Defence of “Obedience to Superior Orders” in International Law’ (2012). P. Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary Law’, 10 ejil (1999). J. Liang, ‘Defending the Emergence of the Superior Orders Defense in the Contemporary Context’, 2 Goettingen Journal of International Law (2010).

Targeted Killing. The term targeted killing has not been defined in international law. The most commonly accepted understanding is that the term refers to the use of lethal force with the aim of killing individually selected persons who are not in the physical custody of those targeting them. Thus, targeted killings are  characterized by four cumulative elements: (1) targeted killings always involve the use of lethal force against human beings, i.e. any forcible measure capable of causing the death of a human being; (2) targeted killings always involve the intent, premeditation and deliberation to kill and must be distinguished from unintentional, accidental, or negligent killing (intent), from voluntary killing driven by impulse or passion (premeditation), or from killing occurring as the incidental result of an operation pursuing another purpose (deliberation); (3) targeted killings are always directed at individually selected persons, as opposed to collective, unspecified or random targets; and (4) contrary to judicial and extra-judicial executions, targeted killings are directed against persons who are not in the physical custody of those targeting them. 1. The Relevant Legal Frameworks The international lawfulness of targeted killings depends primarily on ihrl and, in situations of armed conflict, ihl [see: International Human Rights Law; International Humanitarian Law]. State-sponsored targeted killings carried out within the territory of another State may also involve the law governing the use of inter-State force [see: Ius Ad Bellum], most notably the UN Charter, and even a single targeted killing can amount to an act of aggression [e.g. unsc Resolution 611 (1988)]. While ihrl and ihl determine the lawfulness of targeted killings with respect to the targeted individual, the law of inter-State force determines their lawfulness with respect to the territorial State. All three legal frameworks can simultaneously apply to the same targeted killing, and no targeted killing

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c­ ontravening one of these frameworks can be considered as internationally lawful. For example, a targeted killing carried out in inter-State self-defence or with the consent of the territorial State may not violate the prohibition of inter-State force [arts. 2(4), 51 UN Charter], but may still be prohibited under the provisions governing the targeting of persons under ihl or the use of lethal force under the human right to life. Conversely, in a situation of armed conflict, the targeted killing of an enemy commander in the territory of an adjacent third State may not violate ihl or the human right to life, but may violate the prohibition of inter-State force enshrined in the UN Charter. When examining the permissibility of a particular targeted killing with regard to the targeted person, the applicable normative standards depend on whether the killing in question was employed as a method of law enforcement or as a method of warfare. 2. Targeted Killing as a Method of Law Enforcement The law enforcement paradigm applies at all times, except during the conduct of hostilities in armed conflict [see: Law Enforcement; Hostilities, Conduct of]. It comprises all rules and principles of international law governing the exercise by States of authority or power to maintain, restore or otherwise impose public security, law, and order. This includes the duty of States to respect and protect the inherent right to life of all individuals under their authority or directly exposed to their conduct. The right to life entails, on the one hand, that States are prohibited from taking human life arbitrarily. On the other hand, it may even require States to use lethal force in order to protect human life from unlawful attack. Under the law enforcement paradigm, a targeted killing can be permissible only in very exceptional circumstances, namely where it, cumulatively: (a) aims to prevent an unlawful attack on human life (proportionality); (b) is strictly necessary for this purpose (necessity); (c) is the result of an operation which is planned, prepared, and conducted so as to minimize, to the greatest extent possible, the recourse to lethal force (precaution); and (d) States must regulate the use of force and firearms by law enforcement officials in compliance with these standards. 3. Targeted Killing as a Method of Warfare The paradigm of hostilities comprises all rules and principles of international law governing the resort to means and methods of warfare between parties to an armed conflict [see: International Armed Conflict; Non-International Armed Conflict]. As far as targeted killings are concerned, the most relevant rules are those governing the targeting of persons under ihl.

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Accordingly, in the conduct of hostilities, a targeted killing can be permissible only when it cumulatively: (a) is directed against a legitimate military target [see: Distinction]; (b) is planned and conducted so as to avoid erroneous targeting, as well as to avoid, and in any event to minimize, incidental civilian harm [see: Precautions, Active]; (c) is not expected to cause incidental civilian harm that would be excessive in relation to the concrete and direct military advantage anticipated [see: Proportionality]; (d) is suspended when the targeted person surrenders or otherwise falls out of combat [see: Hors de Combat]; and (e) is not otherwise conducted by resort to prohibited means or methods of warfare. Last but not least, (f) even in the conduct of hostilities, targeted killings are not permissible when the threat posed by the targeted person can manifestly be neutralized through capture or other non-lethal means, without additional risk to the operating forces or the civilian population [see: ­Military Necessity; Humanity]. 4. Conclusion In sum, the specific purpose of targeted killings is to deprive individually selected persons of their lives, without the fair trial requirement that applies to the death penalty, without the requirement of imminent danger of death or serious injury that applies to situations of self-defence, and without the ­prohibition of no survivors-tactics that applies to military hostilities in warfare. Although the method as such is not necessarily unlawful, it raises significant legal and policy challenges, and even formally lawful targeted killings are generally perceived as deeply disturbing. This illustrates that targeted killing, both as a method of law enforcement and as a method of warfare, is located at a point of tension between formal legality and moral legitimacy and, therefore, at the extreme end of the scale of permissible State action. Nils Melzer – the views expressed are those of the author alone and do not necessarily reflect the views of the United Nations or any other institution the author is or has been affiliated with Bibliography

O. Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’, 5(2) jicj (2007). A. Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’, 5(2) jicj (2007). A. Cohen, Y. Shany, ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in The Targeted Killings Case’, 5(2) jicj (2007). D. Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or ­Legitimate Means of Defence?’, 16(2) ejil (2005).

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N. Melzer, ‘Targeted Killing or Less Harmful Means? Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity’, 9 Yearbook of International Humanitarian Law (2008). N. Melzer, Targeted Killing in International Law (2009). R.S. Schondorf, ‘The Targeted Killings Judgment: A Preliminary Assessment’, 5(2) jicj (2007).

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

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a receipt must be given to contributors. Contrary to Article 52 1907 Hague Regulations, where receipt is redeemable in cash at a later date, the receipt provided for in Article 51 is evidence of payment and does not mean that the occupying power must redeem the payment in cash, as “money contribution is tantamount to an extraordinary tax rather than a compulsory loan” ­[Dinstein (2009), p. 127]. One issue that arose in a case before the Israeli Supreme Court is whether taxes are exhaustively dealt with in Articles 48 and 49 1907 Hague Regulations, or whether these provisions must be read against the general backdrop of Article 43, which provides that existing laws should be respected unless the occupying power is absolutely prevented from doing so [see: Legislation in Occupied Territory]. The term “absolutely prevented” has been construed in terms of a necessity to change existing law [Y. Dinstein, ‘Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding’, hpcr Occasional Paper Series (2004), p. 4]. In the vat case, a new excise on services and products was introduced in the occupied Palestinian territories, mirroring legislation introducing a value added tax (vat) in Israel. It sought to enhance the free flow of goods and services between the occupied territories and Israel. This new tax was challenged as incompatible with Articles 48 and 49 1907 Hague Regulations, as it was not l­evied for the needs of the army or for the administration of the occupied territories. The Supreme Court dismissed the petitions, circumventing the conditions imposed in Articles 48 and 49 by reading these provisions against the exception of necessity in Article 43 [Judgment, Bassil Abu Aita et al. v. The R ­ egional ­Commander of Judea and Samaria et al., Israel Supreme Court, pp. 273–74]. This interpretation is “innovative” and doctrine is divided on whether the provisions on taxation should be read against the more general provision in Article 43 1907 Hague Regulations ­[Dinstein (2009), p. 128; I. Venzke, ‘Contributions’, in R. Wolfrum (eds.), The Law of Armed Conflict and the Use of Force, Max Planck Encyclopedia of Public International Law (2015)]. Ellen Nohle, Gilles Giacca – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

Y. Dinstein, The International Law of Belligerent Occupation (2009). Y. Dinstein, ‘Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding’, hpcr Occasional Paper Series (2004). I. Venzke, ‘Contributions’, in R. Wolfrum (ed.), The Law of Armed Conflict and the Use of Force, Max Planck Encyclopedia of Public International Law (2015).

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Terror, Spreading of; see: Terrorism (ihl) Terrorism (ihl). Besides the general concept of terrorism in international law [see: Terrorism (International Law)], the notion of terrorism appears in ihl too. Of note, whilst terrorism is commonly associated with actions of nonState entities, ihl provisions on the matter also cover acts carried out by State armed forces. 1. Terror, Spreading of Article 51(2) api and Article 13(2) apii provide that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” [see: Attacks against Civilians and Persons Hors de Combat]. The prohibition against attacks primarily aimed at spreading terror is deemed to have attained customary status [rule 2 icrc Customary ihl Study]. Although this violation has not been expressly listed as one of the war crimes over which the icc has jurisdiction, attacks primarily aimed at spreading terror have been considered as a war crime before the icty [­Judgment, Galić, icty, Trial Chamber, paras. 91–130]. The required objective element corresponds to threats or “acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population” [Galić, para. 133; see: Civilians; Direct Participation in Hostilities]. This definition rules out the possibility that attacks directed against combatants could be classified as acts of terror [see: Combatants], ­unless they violate other rules of ihl (e.g. they are indiscriminate or disproportional). For instance, as underlined in an Italian case, an attack directed against combatants could be defined as an act of terror, as long as its consequences would entail inevitable and disproportionate harm to life and limb of civilians [­Judgment, Bouyahia Maher Ben Abdelaziz, Italian Court of ­Cassation, p. 308, para. 4(1)]. The icty further specified that actual death or serious injury are not required, as long as the conduct in question entailed “grave consequences” for the victims, and thus is serious enough to amount to a war crime [­Judgment, D. Milošević, icty, Appeals Chamber, paras. 33–34]. The required mental element is constituted by the general intent to direct those acts of violence against the civilian population, in combination with the specific intent (dolus specialis) of spreading terror among the civilian population [Galić, para. 133]. As explained by the icrc, every single hostile act perpetrated during an armed conflict generates fear among the civilian population and the enemy armed forces, to a certain degree [1987 icrc Commentary api,

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para. 1940]. Whilst, at times, even attacks on members of the armed forces are carried out in a particularly brutal manner (with the aim to intimidate them), Article 51(2) api and Article 13(2) apii only and specifically prohibit those attacks whose primary purpose is to spread terror among the civilian population. Of note, actual terrorisation of the civilian population is not a required element of the crime, as long as the perpetrators had the required specific intent of spreading terror and the conduct could abstractly produce such result [Galić, para. 104]. The “primary purpose” of spreading terror has mostly been inferred from circumstantial evidence, related to the nature of the targets, the manner in which attacks were carried out, their timing and duration, and the resulting military advantage (if any). A clear example is the sniping and shelling campaign put in place by the Bosnian Serb army during the siege of Sarajevo [Galić, paras. 592–594; see: Sniping]. As to the meaning of “terror”, it has mostly been equated with an “extreme fear” going beyond the alarm normally generated by armed conflict and is intended to demoralize and cause extreme insecurity in the population [Judgment, D. Milošević, icty, Trial Chamber, paras. 885–886]. 2. Acts of Terrorism Article 33 gciv states that “[c]ollective penalties and likewise all measures of intimidation or of terrorism are prohibited” [see: Collective Punishment] and Article 4(a)(2) apii provides that “acts of terrorism” are and shall remain prohibited at any time and in any place whatsoever. These provisions are designed to protect individuals who find themselves under the authority of an adverse party to the conflict. As such, the prohibition covers also acts directed against installations, but indirectly harming civilians [1987 icrc Commentary api, para. 4538]. In the past, such acts of terrorism have mostly been perpetrated by State authorities, especially in the context of belligerent occupation [M. ­Sassòli, ‘Terrorism and War’, 4(5) jicj (2006) p. 967; see: Occupation]. Recently, this category has been revived by scsl jurisprudence, not without a certain dose of conflation with the category of threats or acts of violence primarily intended to spread terror [S. Krähenmann, ‘Foreign Fighters under International Law’, 7 Geneva Academy Briefing Series (2014), p. 28]. Indeed, whilst Article 3(d) scsl Statute (like Article 4(d) ictr Statute) establishes the scsl’s jurisdiction over a seemingly broad category of “acts of terrorism”, this Court has consistently referred to the aforementioned icty jurisprudence to interpret such expression. Hence, the scsl affirmed that a variety of practices – including enslavement, sexual violence and use of child soldiers – may amount to acts of terrorism, if their primary purpose is to spread terror among the civilian population, as opposed to another military or utilitarian

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purpose [Judgment, Sesay et al., scsl, Appeals Chamber, paras. 678–679; Judgment, Taylor, scsl, Appeals Chamber, paras. 265, 268; see: Slavery; Rape and Sexual Violence; Child Soldiers]. Notably, the scsl has also controversially maintained that acts or threats of violence against a person’s property are also susceptible of amounting to acts of terrorism [Judgment, Taylor, scsl, Trial Chamber, para. 408; see: Property, Private]. Hence, despite a clear understanding that threats or acts of violence primarily intended to spread terror among the civilian population are prohibited ­under ihl and amount to a war crime, some of the elements of this prohibition are in need of further clarification. 3. Assessment Considering the wide range of international legal consequences of labelling a certain individual or group as terrorists, one should wonder what the relationship is between the IHL-specific provisions and the general notion of terrorism in international law. The particular stigma associated with terrorism and the narrative accompanying the fight against this phenomenon have significantly impacted fundamental notions ihl [see: Non-International Armed Conflict; Combatants; Internment; Deprivation of Liberty, Treatment; ­Terrorist Organisations; Anti-Terrorist Operations], but in so doing “acts of terrorism” have not necessarily been defined according to the relevant provisions of the GCs and the APs. Whilst terrorism-related activities governed by international conventions and international organizations’ resolutions may also be prohibited when performed during an armed conflict, some coordination with the relevant rules of ihl seems to be necessary. In particular, if it makes sense to label as “terrorist” acts intended to “directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it” in peace time [Interlocutory Decision on the Applicable Law, stl, Appeals Chamber, para. 85; see also: unsc Resolution 1566 (2004), para. 3], this would mean considering as terrorist any hostile act performed by a nonState party during an armed conflict, regardless of its compliance with ihl rules. In turn, this could constitute a perverse incentive for armed groups not to comply with ihl obligations, since they could be treated as terrorists in any case. In this respect, some international legal instruments laudably attempt to bring some clarity and coordination. The 1997 International Convention for the Suppression of Terrorist Bombings, for instance, provides, in Article 19(2), that its provisions do not cover activities performed by armed forces (including those of non-State actors) in the context of an armed conflict, whenever governed by ihl. In light of this example, until a comprehensive definition of

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terrorism is adopted in international law, it is desirable that the application of the various existing (and partial) definitions of acts of terrorism is, inasmuch as possible, coordinated to avoid overlapping and ambiguities. Antonio Coco – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J. Beqirai, ‘Terror and Terrorism in Armed Conflicts: Developments in International Criminal Law’, in F. Pocar, M. Pedrazzi, M. Frulli (eds.), War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (2013). A. Coco, ‘The Crime of Terrorism in Times of Armed Conflict as Interpreted by the Court of Appeal of England and Wales in R v. Mohammed Gul’, 11(2) jicj (2013). K. Keith, ‘Deconstructing Terrorism as a War Crime: The Charles Taylor Case’, 11(4) jicj (2013).

Terrorism (International Law). In its popular understanding, the term terrorism tends to refer to an act that is wrong, evil, illegitimate, illegal, and a crime. The term has come to be used to describe a wide range of violent, and sometimes not-so violent, conduct. Acts characterised as terrorist in nature can o­ ccur both in conflict and peace-time. They may constitute crimes in domestic and international law, and they are motivated by a complex matrix of reasons and ideals. Their characterisation can also depend upon the person or institution using the label and may even change over time. Besides the references to terrorism in ihl [see: Terrorism (ihl)], terrorism has been addressed more generally under international law as well. The UN Terrorism Prevention Branch has described terrorism as a unique form of crime, often containing elements of warfare, politics, and propaganda. The international community has nevertheless failed to reach consensus on a comprehensive and concise definition of terrorism, instead leaving interpretation of the term to individual States or within the context of specific treaties on counter-terrorism, such as the financing of terrorism within the International Convention on the Suppression of the Financing of Terrorism. Consensus is apparent, however, on the treatment of the term in objective terms, rather than subject to the particular purposes or motivations of the terrorist actor. In its reaffirmation of the 1994 Declaration on Measures to Eliminate International Terrorism, for example, the unga reiterated in its Resolution 50/53 (1995) that “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological,

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racial, ethnic, religious or any other nature that may be invoked to justify them” (emphasis added). In the absence of a comprehensive and universally-accepted definition of terrorism, the UN Special Rapporteur Martin Scheinin has offered, as a best practice in the fight against terrorism, a model definition of the term, drawn from unsc Resolution 1566 (2004) [UN Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and  Fundamental Freedoms while Countering Terrorism (2010), para. 28]. First, “[t]he action [or attempted action]: (a) Constituted the intentional taking of hostages; or (b) Is intended to cause death or serious bodily injury to one or more members of the general population or segments of it; or (c) Involved lethal or serious physical violence against one or more members of the general population or segments of it”. Second, “[t]he action is done or attempted with the intention of: (a) Provoking a state of terror in the general public or a segment of it; or (b) Compelling a Government or international organization to do or abstain from doing something”. Third, “[t]he action [or attempted action] corresponds to: (a) The definition of a serious offence in national law, enacted for the purpose of complying with international conventions and protocols relating to terrorism or with resolutions of the unsc relating to terrorism; or (b) All elements of a serious crime defined by national law”. A consequence of the absence of a comprehensive definition of terrorism is that there is no single universal treaty dealing with the prevention and punishment of terrorism. Instead, a sectorial approach is taken under numerous conventions and protocols, directed at the protection of potential terrorist targets (internationally protected persons, hostages, civil aviation, and operations at sea) or concerning the means through which terrorists and terrorist organizations operate (nuclear terrorism, plastic explosives, terrorist bombings, and terrorist financing). Alex Conte – the views expressed are those of the author alone and do not ­necessarily reflect the views of the International Commission of Jurists Bibliography

A. Cassese, ‘The Multifaceted Criminal Notion of Terrorism in International Law’, 4(5) jicj (2006). B. Saul, Defining Terrorism in International Law (2006).

Terrorist Organizations. The label of terrorist organization is used to describe organizations or groups that are involved in one way or the other with

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

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

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by association and undermine the principle of individual criminal responsibility [Duffy, p. 203; see: Individual Criminal Responsibility]. Many proscribed or designated terrorist groups are also parties to an armed conflict, putting pressure on fundamental concepts of ihl and conflating the legal regimes governing terrorism and armed conflict. Regardless of the labelling of a particular group, ihl applies to activities of terrorist organizations or groups if they are a party to the armed conflict, including when measures taken against such groups during armed conflicts are labelled “anti-terrorist” or “counter-terrorist” operations [see: Anti-Terrorist Operations; Armed Groups]. The lawfulness of the means and methods used by the parties to an armed conflict are immaterial for the application of ihl [M. Sassòli, L. Rouillard, ‘La Définition du Terrorisme et le Droit International Humanitaire’, 20 Revue Québécoise de Droit International (2007)], as is the purported aim or ideological motivation of a group [icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2011)]. At the same time, ihl only applies during times of armed conflict [see: International Armed Conflict; Non-International Armed Conflict]. Hence, it does not apply to the activities of terrorist organizations or the measures taken against them in peace time. This is particularly relevant when it comes to the use of force and detention where ihl is more permissive than ihrl [see: International Human Rights Law; Deprivation of Liberty]. For example, any discussion of the targeted killing of a suspected member of a terrorist organization routinely starts with a discussion of the applicable legal regime [see: Targeted Killing; Drones]. The increasing criminalization of membership in proscribed terrorist organizations, including when they are parties to an armed conflict, often leads to the criminalization of mere participation in hostilities and acts not prohibited by ihl. With increasing transnational criminal cooperation to suppress acts of terrorism, including when connected to an armed conflict, it is feared that armed groups, including designated or proscribed terrorist groups, may lose any incentive they have to comply with ihl. Sandra Krähenmann – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

H. Duffy, The ‘War on Terror’ and the Framework of International Law (2015). icrc, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2011). E. Rosand, ‘The UN-led Multilateral Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?’, 11(3) Journal of Conflict & Security Law (2007).

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M. Sassòli, L. Rouillard, ‘La Définition du Terrorisme et le Droit International Humanitaire’, 20 Revue Québécoise de Droit International (2007). B. Saul, ‘Terrorism and International Humanitarian Law’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014).

Torture. The prohibition against torture is a ius cogens norm of international law, contained in all four 1949 GCs and the two 1977 APs. The prohibition against torture is found in Common Article 3 GCs, as well as in numerous specific provisions [art. 12 gci; art. 12 gcii; arts. 17, 87 gciii; art. 32 gciv; art. 75(2) api; art. 4(2) apii; see: Grave Breaches]. Its status as a ius cogens norm has been recognised by the icj, regional human rights courts, national courts, and international criminal tribunals [Judgment, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), icj, para. 99; Judgment, Othman (Abu Qatada) v. United Kingdom, ECtHR, Fourth Section, para. 266; Judgment, Furundžija, icty, Trial Chamber, paras. 144–157; Opinions of the Lords of Appeal for Judgment, A and Others v. Secretary of State for the Home Department, House of Lords, para. 33; Judgment, KAING Guek Eav (Duch), eccc, Trial Chamber, paras. 352–353; Judgment, Cabrera García and Montiel Flores v. Mexico, IACtHR, para. 165 (finding the rule of excluding all evidence obtained under torture to be absolute and irrevocable)]. Torture is not defined in the GCs, but instead in the icc Elements of Crimes and the 1984 UN Convention against Torture (uncat). The icc Elements of Crimes define the requirements of torture as follows: a) the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; b) the perpetrator inflicted the pain or suffering for obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind; c) such person or persons were protected under one or more of the GCs [art. 8(2)(a)(ii)-1, 8(2)(c)(i)-4 icc Elements of Crimes]. The uncat definition clarifies that torture “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” [art. 1 uncat]. Unlike the icc Elements of Crimes definition, Article 1 uncat further includes a requirement that “such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity”. The icty Appeals Chamber has explained the reason for such difference: “[t]he definition of the crime of torture, as set out in the Torture Convention, may be considered to reflect customary international law. The Torture Convention was addressed to States and sought to regulate their conduct, and it is only for that purpose and to that extent that

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the Torture Convention deals with the acts of individuals acting in an ­official capacity” [Judgment, Kunarac et al., icty, Appeals Chamber, para. 146]. The ihl definition of torture takes into account the need to limit unnecessary suffering in the context of war whether by State or non-State actors. Therefore, the definition of torture under ihl does not include the public official requirement. There are two theoretical bases for the distinction between torture and inhuman treatment [see: Inhuman Treatment]. Some sources specify that the distinction depends on whether the infliction of pain or suffering is done for a specific purpose. The icc Elements of Crimes define the war crimes of torture and inhuman treatment as the infliction of “severe physical or mental pain or suffering”. The definition of the war crime of torture contained in the icc Elements of Crimes is consistent with the uncat in requiring that the severe pain or suffering be imposed for a specific purpose, such as obtaining information [art. 8(2)(a)(ii)-1 icc Elements of Crimes]. However, the crime against humanity of torture in the icc Element of Crimes does not contain such a purposive requirement [art. 7(1)(f), fn. 14 icc Elements of Crimes]. Likewise, the war crime of inhuman treatment does not require that severe pain or suffering be imposed for a specific purpose [art. 8(2)(a)(ii)-2 icc Elements of Crimes; Judgment, İlhan v. Turkey, ECtHR, Grand Chamber, para. 85]. There is also support for the view that torture and inhuman treatment are distinguished by their relative gravity. The ECtHR has noted that there is a difference in the intensity of the suffering inflicted with torture at the highest end of the spectrum, followed by inhuman treatment, and finally degrading treatment [Judgment, Ireland v. United Kingdom, ECtHR, para. 167; Judgment, Gäfgen v. Germany, ECtHR, Grand Chamber, paras. 88–90; see also: 2016 icrc Commentary gci, paras. 1410–1411, 2962–2969]. Factors which courts have considered relevant in determining whether an act is of sufficient gravity to ­constitute torture, as opposed to inhuman treatment, include: the nature and context of the infliction of pain; the premeditation and institutionalization of the ill-treatment, whether the mistreatment occurred over a prolonged period; the manner and method used; the physical condition of the victim; the ­physical or mental effect of the treatment on the victim; the victim’s state of ­health; the position of inferiority of the victim; the victim’s age, sex, and social, ­cultural and religious background [2016 icrc Commentary gci, paras. 2964–2965]. Roger Phillips – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia

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Bibliography

H. Burgers et al., The United Nations Convention against Torture – A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988). J.M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), pp. 315–319.

Toxin Weapons; see: Biological Weapons Convention (1972) Trade. Trade and livelihoods can be adversely impacted by the actions (or ­inactions) of an occupying power. Yet, trade is not specifically regulated under occupation law [see: Occupation]. Of most relevance are provisions dealing with work and property rights [see: Workers; Property, Private]. An important principle is that the economy of an occupied territory can only be required to bear expenses of the occupation no greater than that economy can be expected to bear [Judgment, Trial of the Major War Criminals, imt, Vol. i, p. 239]. This is reflected in Article 52 of the 1907 Hague Regulations, which provides that requisitions in kind and services may only be demanded from inhabitants for the needs of the army of occupation and must “be in proportion to the ­resources of the country” [see: Requisitions]. Regarding the requisitioning of services, Article 51 gciv stipulates that protected persons may only be compelled to carry out work necessary for the needs of the army, for public utility services or for feeding, sheltering, clothing, transportation or health of the population of the occupied territory. Under no circumstances may an occupying power compel services to serve its own ­national economy, or to support military operations. Workers must also be paid “a fair wage” and pre-occupation legislation addressing work and safety conditions shall apply. Importantly, Article 52(2) gciv prohibits measures aimed at creating unemployment or restricting the opportunities offered to workers in occupied territory to induce them to work for the occupying power. This refers to certain practices during World War ii, including the establishment of employment monopolies, closing down of industries, and creation of shortages of raw materials necessary for production [1958 icrc Commentary gciv, p. 300]. With respect to property rights, occupation law imposes an absolute ban on pillage and prohibits destruction of property in occupied territories unless it is “rendered absolutely necessary by military operations” [art. 53 gciv; see Pillage; Property, Destruction and Appropriation/Seizure of]. The icj determined that Uganda had not taken the necessary measures to prevent ­exploitation of certain natural resources in the drc. As the occupying ­power,

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Uganda should have acted to stop the illegal trade carried out not only by members of its armed forces, but also by private persons in the region [Judgment, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), icj, para. 248]. Compared to public property, under occupation law there are stricter limitations on interference with private property rights. The core obligation is that private property must be respected and cannot be confiscated [art. 46 1907 Hague Regulations]. As stated in the Krupp Trial, this does not merely require protection from loss of ownership; the provision is violated if the owner is actually prevented from exercising his or her rights in relation to the property [Judgment, Krupp et al. (Krupp Case), US Military Tribunal (Nuremberg), p. 1345]. This protection applies even if the property is operated by virtue of a concession granted by the occupied State to a private person or company [Judgment, Lighthouses Arbitration between France and Greece, pca, pp.  200–202]. It also extends to intangible property, “such as is involved in the acquisition of stock ownership” [Judgment, Krauch et al. (Farben Case), US Military T ­ ribunal (Nuremberg), p. 1134]. Private property may, however, be taken (“requisitioned”) if certain conditions are met [art. 52 1907 Hague Regulations; see: Requisitions]. In addition, some privately owned property, such as munitions and military equipment, may be seized temporarily, but must be restored and compensated for once peace has been reached [art. 53(2) 1907 Hague Regulations]. These protections are complemented by provisions under ihrl protecting the right to work, form trade unions, and own property [arts. 6, 8 icescr; art. 17 udhr]. For example, the icj in the Wall case determined that the right to work had been violated by Israel as restrictions on movement had a negative impact on the ability of the Palestinian population to earn their livelihoods [Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, paras. 130–137]. With respect to international trade commitments entered into by the displaced sovereign prior to occupation, the occupying power should consider itself bound by them to the extent that public order and civil life depend on compliance with such commitments [E. Benvenisti, The International Law of Occupation (2012), p. 83]. For example, during the occupation of Iraq, the occupation authorities justified redrafting the Iraqi labour code by reference to Iraq’s commitments under the ilo Conventions 138 and 182 to eliminate child labour. With respect to the dealings by other States with the occupying power, difficulties might arise if the occupying power denies the occupation regime and attempts to annex the territory in violation of international law [see: A ­ nnexation]. In such event, States should confine their reactions to the unlawful situation to their direct relations with the occupying power, while

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continuing to maintain existing treaty-based relations that benefit the location population. This would include bilateral and regional free trade ­agreements [Benvenisti, p. 85]. In the Namibia Advisory Opinion, the icj emphasized that “[i]n general, the non-recognition of South Africa’s administration of the ­Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation” [Advisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), icj, paras. 122, 125]. In this context, it is worth reflecting on the potentially detrimental effects of economic blockades on the livelihoods of persons in ­occupied territories. Ellen Nohle, Gilles Giacca – the views expressed are those of the authors alone and do not necessarily reflect the views of any institution the authors are affiliated with Bibliography

E. Benvenisti, The International Law of Occupation (2012). G. Von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957).

Transfer by the Occupying Power of its Own Population. The Hague Regulations of 1907 do not expressly prohibit the transfer by the occupying power of its own population, although it could be argued that the application of both Articles 43 and 47 makes it practically impossible for an occupying power to introduce settlers in the occupied territory. These provisions in fact allowed for charges to be brought before the Nuremberg Tribunal against individuals for introducing settlers in occupied territories [Indictment, Count 3J, Germanization of Occupied Territories, imt]. It was against the background of the establishment of settlers during the World War ii that Article 49(6) gciv, which specifically prohibits any deportation or transfer by the occupying power of its own civilian population, was adopted [1958 icrc Commentary gciv, p. 283]. It should be noted that such transfer is only one of the types of transfer proscribed by Article 49(1) gciv [see: Deportation or Transfer of Civilians], although the Commentary explains that, given the difference in wording, it might have been better to have “a separate provision distinct from Article 49” [1958 icrc Commentary to gciv, p. 283]. The prohibition of transfer by the occupying power of its own population is also enshrined in customary law [rule 130 icrc Customary ihl Study] and

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features in a number of resolutions of the unsc [see e.g. Resolution 446 (1979), Resolution 452 (1979), and Resolution 465 (1980)] and the unga [see e.g. Resolution 68/15 (2013)]. The reason for such a ban in ihl is that altering the demographic composition of the occupied territory violates the premise of the law of occupation, which is the maintenance of the status quo of the occupied territory, on the basis that the situation of occupation is temporary [see: Occupation]. In this regard, Article 49(6) gciv also aims at protecting the civilians in the occupied territory [J.-M. Henckaerts, Mass Expulsion in Modern International Law and Practice (1995), p. 149]. Further, changing the demographic composition could be viewed as a first step towards annexation [see: Annexation], which is unlawful under the UN Charter and constitutes a violation of the right of selfdetermination [Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, para. 122]. Article 49(6) gciv expressly covers both deportations and transfers, irrespective of the motive for such displacement [UN Sub-Commission on the Promotion and Protection of Human Rights, The Human Rights Dimensions of Population Transfer, including the Implantation of Settlers: Progress Report Prepared by UN Special Rapporteur, E/CN.4/Sub.2/1994/18, para. 73]. In practice, deportation is unlikely to occur, for it would not attain the aim pursued by an occupying power. Indeed, the concept of transfer appears to imply that the State authorities must be involved in the act. Measures adopted by the State range from organising the transport of civilians to softer approaches such as encouraging settlements in occupied territories [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 120]. The question is whether voluntary movement into the occupied territory breaches Article 49(6) gciv. Undoubtedly, an interpretation in accordance with the aim and objective of this provision would prohibit such displacement [Henckaerts, p. 149; R. Murphy, ‘Forgotten Rights: Consequences of the Israeli Occupation of the Golan Heights’, in D. Keane, Y. McDermott (eds.), The Challenge of Human Rights: Past, Present and Future (2012), p. 159] as it would alter the demographic composition of the occupied territory. However, there is no duty upon the occupying power to prevent nationals from seeking establishment in the occupied territories. Yet, a favourable environment created by the State would fail to comply with Article 49(6) gciv as such. This interpretation is supported by Article 8(2)(b)(viii) icc Statute that refers to direct and indirect transfer by the occupying power. In contrast to Article 49(1) gciv, the prohibition of deportation and transfer applies not only to “protected persons” but to all civilians [see: P ­ rotected Persons; Civilians]. Furthermore, even though the Commentary refers to

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“­ nationals of the occupying Power” [1958 icrc Commentary gciv, p. 283] foreigners should also be included, as any transfer of population would modify the demographic composition of the occupied territory. It should also be noted that, although the prohibition refers to the “civilian” population, it does not cover State agents who are allowed to go into the occupied territories for the purpose of administering it according to the Hague Regulations and the relevant provisions of gciv. There are no limitations, derogations, or exceptions to the rule that is couched in strict terms. Indeed, whilst Article 49(2) gciv allows for deportations and transfers in cases in which “the security of the population or imperative military reasons so demand”, this exception does not apply to Article 49(6) gciv [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 135]. Likewise, the concept of military necessity cannot be used as it only pertains to active combat activities [see: Military Necessity]. Whilst the grave breaches provision of gciv does not list the prohibition of transfer by the occupying power of its own population, this is remedied by ­Article 85(4)(a) api [see: Grave Breaches; War Crimes]. Even though api is less widely ratified than gciv, it can be argued that Article 85 applies qua customary law [C. Tomuschat, ‘Prohibition of Settlements’ in A. Clapham, P. Gaeta, M. Sassòli (eds.), The 1949 Geneva Conventions. A Commentary (2015), p. 1555]. Moreover, Article 8(2)(b)(viii) icc Statute states that the transfer by the occupying power of its own population into the territory it occupies is a war crime. Noëlle Quénivet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J. Quigley, ‘Living in Legal Limbo: Israel’s Settlers in Occupied Palestinian Territory’, 10 Pace Int’l L. Rev (1998). Y. Ronen, ‘Status of Settlers Implanted by Illegal Territorial Regimes’, 79 British Yearbook of International Law (2008).

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

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

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Protection of All Persons from Enforced Disappearance (2006)]. Most commonly, such processes of truth-seeking take place through the work of truth ­commissions, commissions of inquiry, or other fact-finding missions [see: Commissions of Inquiry and Fact-finding Missions; Truth Commissions]. Truth commissions are non-judicial bodies that investigate past violence with the view to mapping its patterns and establishing its causes. The mandate and structures of truth commissions vary from case to case, depending on the specific societal context and should ideally be established following a national consultation with the inclusion of victims and civil society organizations. Commissions of inquiry and fact-finding missions are also generally established with the view to uncovering the truth about past violence or human rights violations, but tend to have more narrowly defined mandates than truth commissions. Reparation programmes include restitution, compensation, rehabilitation, satisfaction and guarantees of non-recurrence [see: Reparations]. Institutional reforms entail, as the expression suggests, a reform of those institutions that were involved in or were responsible, to some degree, for the commission and/or perpetuation of the human rights violations. Their aim is to prevent the recurrence of future wrongdoings by building fair and efficient public institutions and to restore trust amongst the constituency towards these institutions. This process often includes vetting members of these institutions and removing them from their position or refraining from recruiting those ­individuals who are found to be responsible for the past human rights violations. Transitional justice normally operates in the context of post-conflict situations, or, in some cases, attempts to operate in realities in which the conflict is still on-going. Most, if not all practitioners and scholars agree that transitional justice is not an exact science and that any transitional justice process or mechanism must be tailored to the specific country situation in which it is going to be implemented, and must include a victim-centred and gender-­ sensitive approach. Elements that need to be taken into consideration include the length of the period of the human rights violations, the nature of the conflict, the number, ethnicity and geographical distribution of the victims, the identity of the perpetrators, the involvement of the government in the commission of the violations, corruption within the institutions that by definitions should protect all individuals (courts and police, to name just two), as well as the fragility of existing institutions. Maddalena Ghezzi – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia

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Bibliography

Commission on Human Rights, Independent Study on Best Practices, Including ­Recommendations, to Assist States in Strengthening their Domestic Capacity to Combat all Aspects of Impunity – by Diane Orentlicher (2004). UN Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-Recurrence – Pablo de Greiff (2012). UN Human Rights Council, Analytical Study on Human Rights and Transitional Justice (2009). UN Special Rapporteur, Questions of the Impunity of Perpetrators of Human Rights Violations (Civil and Political) – Revised Final Report Prepared by Mr. Joinet Pursuant to Sub-Commission decision 1996/199 (1997). unsc, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the unsg (2004).

Translation. The translation of core ihl texts from one language into another language is a basic and yet very essential measure of both dissemination [see: Dissemination] and implementation [see: Implementation]. At the same time, it is an indirect precondition for the enforcement of ihl. The GCs refer to translation indirectly in that they presume a legal obligation as part of the “execution of the convention” and explicitly declare the duty to communicate “the official translations of the present Convention”, either through the Swiss Federal Council and, during hostilities, through the protecting powers [art. 48 gci; art. 49 gcii; art. 128 gciii; art. 145 gciv; see: Protecting Powers]. api ­contains a very similar provision in Article 84, whereas apii is silent on that issue. During times when (diplomatic) international relations were conducted mainly in French, translating the text of an international treaty into a different language did not play a major role. The more international law and ihl became relevant for the observance and compliance by a multitude of actors in and within a multitude of States, including actors beyond Ministries of Foreign Affairs, the more translation of existing norms became relevant. Translation of an existing norm is a basic requirement. Indeed, compliance with a norm cannot be expected from actors who do not have the opportunity to know the norm. By virtue of the nature of things, translation is a challenge in contexts where the State party to an international law treaty avails itself of several different native, possibly official languages. Translation into the official language(s) is one of the “necessary measures” that Article 80 api and ­customary law require from States parties and parties to an ­international

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armed conflict. Even if one or more official languages are recognized, translation in particular into additional (e.g. unusual, rare or tribal) languages might be crucial in order to ensure access to the texts of internationally agreed norms, especially with regard to situations of non-international armed conflict. For example, Ghana avails itself of between 46 and 100 different languages. It has more than 70 ethnic groups, each with its own distinct language. English being the official language, nine to eleven languages have the status of Governmentsponsored languages. Ghana’s official translation of the GCs and the APs is English. In a (hypothetical) conflict involving different ethnic groups with ­distinct languages, it would prove pertinent for the text of the treaties to be available in these languages, in order to increase the likelihood of the provisions being known, understood, and observed. International law treaties usually contain a determination of one or more so-called authentic languages in one of the treaties’ final provisions. Very ­often such authentic languages today are English and/or French, especially in ­multilateral treaties, other prominent authentic languages being Arabic and/or Russian. The GCs establish English and French as equally authentic texts and commit the Swiss Federal Council to provide official translations, not additional authentic texts, into Russian and Spanish [art. 55 gci; art. 54 gcii; art. 133 gciii; art. 150 gciv]. The text of api is authentic in Arabic, Chinese, English, French, Russian, and Spanish [art. 102 api]. Rules of customary ihl may be the object of translation in particular in contexts when they have been given a written form as in the icrc Customary ihl Study published in 2005 and being updated since that date. Specific issues and questions may arise in situations where, for instance, a treaty text builds on texts contained in previous additional treaties so that potential insecurities and inaccuracies in previous drafting and/or previous translations are and have to be carried forward to subsequent drafting and translation. Possible inconsistencies, for example, in the codification of protection of the emblem of the red cross in gci and api would also have to be dealt with in the text and translation of apiii [see: Emblem]. An additional challenge constitutes the possibly differing translation of a term into different national variations of the same language. An example is the translation of the wording “render assistance to the regular medical service of the armed forces” of Article 26(2) gci as “Mitwirkung” (assistance/cooperation) in the official translation of the Federal Republic of Germany, on the one hand, and ­“Unterstützung” (assistance/­support) in the official translation of the Republic of Austria, on the other hand. In order to avoid such frictions, States sharing the same language at large often try to agree on consolidated translations.

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Heike Spieker – the views expressed are those of the author alone and do not necessarily reflect the views of the German Red Cross or any other institution the author is affiliated with Transnational Armed Conflict. The term transnational armed conflicts is not a legal term of art. It is not used in the four GCs or their APs. It came to the fore in discussions on how to classify an armed conflict that did not seem to fit the usual paradigm of either an international armed conflict between two or more States, or a non-international armed conflict between an organized non-State armed group and a State (or between two or more organized non-State armed groups) within the confines of the territory of a single State [see: International Armed Conflict; Non-International Armed Conflict]. The term “transnational armed conflicts” is thus used by some to describe armed conflicts occurring between an organized non-State armed group and a State, which are not confined to the territory of a single State [G.S. Corn, ‘Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict’, 40 Vand. J. Transnat’l L. (2007), pp. 295–355]. It was prominently used in relation to Al Qaeda, a group that has been described as a “transnational armed group” [M. Mohamedou, ‘Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States’, hpcr Occasional Paper Series (2005); M. Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’, hpcr Occasional Paper Series (2006)]. It has also been used to describe a conflict between the armed group Hezbollah and the State of Israel, that is, an armed conflict between an organized armed group operating in the territory of one State (Lebanon) but fighting against a neighbouring State [Corn, pp. 295–356]. Common Article 2 GCs applies to declared war or armed conflicts between High Contracting Parties [see: Common Article 2]. In other words, it applies only to armed conflicts between States (“inter-nations”). It does not apply to armed conflicts between a State and an entity that is not a State, such as an organized non-State armed group [2016 icrc Commentary gci, para. 220]. Common Article 3 GCs, on the other hand, applies to armed conflicts “not of an international character occurring in the territory of one of the High Contracting Parties”. The phrase “occurring in the territory of one” High ­Contracting Party could be understood to imply that Common Article 3 only applies to a non-international armed conflict confined to the territory of a single State. And indeed, colloquially, non-international armed conflicts are sometimes called internal armed conflicts. However, the text can equally be understood to

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mean that Common Article 3 GCs only applies in the territory of States that are ­parties to the Geneva Conventions, which, today, comprise all States in the world [see: Common Article 3]. Some who advocate for a recognition of transnational armed conflicts as a distinct type of armed conflict also argue that a different set of norms should apply to such conflicts than would normally be applicable to international or to internal non-international armed conflicts [G. Corn, E. Jensen, ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’, 42 Israel Law Review (2009), pp. 46–79]. Others, however, argue that although the term accurately describes the factual situation of a type of armed conflict, such conflicts fit within and can be governed by the existing legal framework [C. Kress, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’, 15 J. Conflict and Security Law (2010), pp. 245–274]. Since it is a theory that grapples with extraterritorial non-international armed conflicts, the notion of transnational armed conflicts is also related to debate on the geographical scope of application of ihl to non-international armed conflicts. The term itself (and debates surrounding it) are closely related to controversy on the applicability of ihl to measures taken with the aim of suppressing the activity of groups with varying degrees of organization and that are often also described as terrorist [see: Terrorist Organizations]. Understanding Common Article 3 GCs (as well as the customary ihl of non-international armed conflicts) as applying to all armed conflicts between a State and an organized armed group, where the usual criteria of organization of the parties and intensity of the hostilities are met, is logical and fulfils the object and purpose of Common Article 3 GCs. By way of reminder, Common Article 3 GCs has been called a “minimum yardstick”, binding in all armed conflicts, and is viewed as reflecting “elementary considerations of humanity” [Judgment, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), icj, pp. 113–114]. Today, there are a number of different factual situations in which the armed forces of a State might be fighting against an organised armed group in places other than on the State’s own territory, such as “spill-over” armed conflicts [2016 icrc Commentary gci, paras. 422–444, 452–482]. While recognition of the factual situation of transnational armed conflicts may be useful for understanding conflicts in the twenty-first century, the notion that a different – undefined – legal regime applies to such conflicts runs the risk of introducing confusion, thereby diminishing the protective capacity of ihl. Lindsey Cameron – the views expressed are those of the author alone and do not engage the International Committee of the Red Cross in any way

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Bibliography

G.S. Corn, ‘Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict’, 40 Vand. J. Transnat’l L. (2007). G.S. Corn, E. Jensen, ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’, 42 Israel Law Review (2009). C. Kress, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’, 15 Journal of Conflict & Security Law (2010). M. Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’, hpcr Occasional Paper Series (2006).

Truth Commissions. The past years have witnessed a steady increase in the establishment and use of truth commissions in transitional and post-conflict societies around the world [see: Transitional Justice]. Despite the increasing recourse to such mechanisms, there is no commonly agreed upon definition of the term truth commissions. While most of the difficulties in seeking a universally accepted definition arguably result from the wide array of features and functions that distinguish each truth commission from another, on the one hand, and from the current tendency of referring to all investigatory mechanisms as truth commissions, on the other, a number of distinctive elements can be identified. First, truth commissions are independent bodies. Indeed, while truth commissions are usually established with an official mandate either by governments or former parties to armed conflict, with or without the involvement of other international actors, one of their key features is their independence and autonomy from the authority that establishes them. Second, truth commissions regularly operate only for a limited amount of time and are not permanent. Third, truth commissions are non-judicial bodies that are established with the purpose of investigating past human rights and ihl violations, ­identifying patterns and causes of violence, collecting relevant information, producing a report, and eventually providing recommendations for redress and future prevention. Fourth, as opposed to other inquiry mechanisms whose mandate is to determine specific facts or patterns of violence [see: Commissions of Inquiry and Fact-finding Missions; Enquiry], the primary objective of truth commissions is truth-seeking broadly speaking, namely to establish the full and complete truth as to past events, including their specific circumstances and who participated in them. Although a key component of any contemporary policy addressing past legacies in transitional contexts, truth commissions also played a fundamental role from an international law perspective. To start with, the proliferation

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of truth commissions has extensively contributed to fostering States’ obligations to respect the right to truth. This human right, which finds its origins in ihl, particularly in regard to the right of families to know the fate of their relatives, together with the obligation of parties to armed conflict to search for missing persons [arts. 32–34 api; rule 117 icrc Customary ihl Study; see: Missing Persons] is today explicitly recognized in a number of international law instruments [e.g. art. 24(2) International Convention for the Protection of All Persons from Enforced Disappearance; principles 2, 4 UN Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005)] and has now become object of extensive jurisprudence by human rights courts and bodies. Moreover, the increasing tendency of truth commissions to provide detailed recommendations in their reports, despite their non-binding nature, can arguably be interpreted as the expression of the growing importance attached by the international community to the need to provide recognition to victims as rights holders, by addressing their truth-seeking claims while, at the same time, reaffirming States’ corresponding obligations in terms of justice, reparation, and guarantees of non-recurrence. Given their potential, today truth commissions have become a common ­response to the challenges posed by post-conflict situations and, as a result, their mandates now frequently include investigation of serious violations of ihl. Examples of truth commissions that have been established over the last years are those in Peru, Guatemala, Sierra Leone, Liberia, and Timor-Leste. ­Interestingly, some countries, such as Colombia and Burundi, have even implemented similar mechanisms in the absence of a political transition and while violence was still ongoing. While the importance of such efforts is not to be diminished, truth commissions often face a number of significant challenges. These include, among others, concerns related to witnesses protection, lack of sufficient attention to the issue of missing and forcibly disappeared persons in situations of conflict, and, more generally, expansionist trends in the design of their mandates, without any regard to their capacity. International experts have thus advocated in favour of adopting prioritization strategies, with a view to ensuring that ­priorities such as the right to truth are adequately addressed while, at the same time, other concerns such as security, lack of sufficient resources, and political instability are duly taken into account in designing truth commissions’ mandates and their respective activities. Valentina Cadelo – the views expressed are those of the author alone and do not necessarily reflect the views of the International Commission of Jurists

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Bibliography

P. Hayner, Unspeakable Truths. Transitional Justice and the Challenge of Truth Commissions (2011). ohchr, Promotion and Protection of Human Rights – Study on the Right to the Truth, UN doc E/CN.4/2006/91 (2006). UN Human Rights Council, Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence on his Global Study on Transitional Justice, A/HRC/36/50 (2017).

UN Protected Areas; see: Neutralized Zones Unexploded Ordnances; see: Explosive Remnants of War Universal Jurisdiction; see: Grave Breaches; Piracy; Penal Sanctions and Legislation Unlawful Combatants; see: Combatants; Terrorist Organizations Unmanned Aerial Vehicles (uavs); see: Drones Unprivileged Combatants; see: Combatants; Terrorist Organizations Usufruct; see: Occupation; Requisitions War Correspondents. War Correspondents are journalists [see: Journalists] authorized or accredited by military authorities to follow the armed forces during an international armed conflict. War correspondents are civilians and benefit from the general protection afforded to them under the 1949 GCs and 1977 api [see: Civilians]. In light of their close proximity to the armed forces, however, war correspondents are accorded the same legal status as members of the armed forces upon capture and must be treated as prisoners of war pursuant to Article 4(A) (4) gciii [see: Prisoners of War]. Thus, when compared to all other journalists, if captured during hostilities, war correspondents are additionally entitled to the fundamental rights foreseen in gciii [see: Deprivation of Liberty, Treatment]. Their status as prisoners of war, however, is without prejudice to their status as civilians [art. 79(2) api]. In addition to gciii, therefore, war correspondents are also protected under Articles 13(4) gci and gcii. The special status provided by Article 4(A)(4) gciii to war correspondents is applicable

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only to international armed conflicts. As journalists, they also continue to benefit from the general protections afforded to civilians under ihl in relation to non-international armed conflicts, particularly Common Article 3 GCs [see: Common Article 3] and Article 13 apii. Similarly to Article 79(3) api, relative to journalists engaged in dangerous professional missions in areas of armed conflict, the authorization received by the military authorities under gciii is attested by identity cards issued to war correspondents [art. 4(A)(4) gciii]. War correspondents are often referred to as embedded journalists. This term, however, does not exist explicitly in the GCs. It refers to the more modern practice of journalists closely following the armed forces during an armed conflict, including with the consent of the military authorities, but without a formal authorization under Article 4(A)(4) gciii. While it remains unclear whether embedded journalists are considered as war correspondents for the purposes of the GCs, this article might also cover other categories of individuals called upon to follow the armed forces, thus supporting the view that all journalists accompanying the armed forced could be considered war correspondents [1960 icrc Commentary gciii, p. 64]. Matteo Crippa – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

A. Balguy-Gallois, ‘The Protection of Journalists and News Media Personnel in Armed Conflict’, 86(853) irrc (2004). F. Foster, ‘The Price of News from the Front Line: Rethinking the Protection of ­Media Personnel under International Humanitarian Law’, 20(3) Journal of Conflict & ­Security Law (2015). H.P. Gasser, ‘The Protection of Journalists Engaged in Dangerous Professional M ­ issions’, 23(232) irrc (1983).

War Crimes. War crimes are serious violations of rules of ihl, which attract individual criminal responsibility under international law [see: Individual Criminal Responsibility]. There is no definitive list of which rules of ihl carry individual criminal responsibility. However, conduct amounting to grave breaches of the GCs must be penalized and alleged perpetrator(s) must be searched for and prosecuted [see: Grave Breaches]. Article 85(5) api confirms that grave breaches of the GCs and of api “shall be regarded as war crimes”. Other serious violations of the laws and customs of war are also war crimes [see: Serious Violations of

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the Laws and Customs of War]. The determination of which violations of ihl are serious and attract individual criminal responsibility under customary ­international law is based upon international practice and opinio juris [see: Customary International Law]. In order to qualify as a war crime, the conduct in question must be connected to the international or non-international armed conflict, as the case may be. This nexus is required by customary international law and is reflected in the icc Elements of Crimes for the war crimes enshrined in Article 8 icc Statute. The nexus requirement serves to distinguish between ordinary criminal conduct, which occurs on the territory of a State experiencing armed conflict, and acts that are perpetrated for reasons connected to the armed conflict. To make this determination, the icty and ictr have been guided by the following factors: whether the perpetrator is a combatant; whether the victim is a non-combatant; whether the victim is a member of the opposing party; whether the act in question serves the purpose of the military campaign; or whether the act is perpetrated as an official duty [e.g. Judgment, Kunarac et al., icty, Appeals Chamber, para. 58]. The nexus requirement provides an objective standard by which the armed conflict is linked with the crime. This means that purely opportunistic crimes that are unrelated to the armed conflict cannot qualify as war crimes. As put by the icty Appeals Chamber, “[w]hat ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established […] that the perpetrator acted in f­urtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict” [Kunarac et al., para. 5]. Yasmin Naqvi – the views expressed are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general Bibliography

M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. i (2002). P. Gaeta, ‘War Crimes and Other International “Core” Crimes’, in A. Clapham, P. Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014).

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War on Terror; see: Anti-Terrorist Operations; Military Commissions; Terrorism (International Law); Terrorism (ihl); Combatants Warships. The universally accepted definition of “warship” is now found in ­Article 29 of the 1982 UN Convention on the Law of the Sea (unclos): “[f] or the purposes of this Convention, ‘warship’ means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline”. The key relevance of the concept of warship for ihl is that w ­ arships may exercise belligerent rights. Correspondingly, warships are by definition the main category of combatant in the law of naval warfare [see: Naval Warfare]. The definition of warship applies across all parties, regardless of whether they are belligerents or neutrals, and ihl deals with neutral warships as the specific recipient of certain rights and obligations vis-à-vis the belligerents. One example is the exemption from belligerent visit and search of merchant vessels under convoy of accompanying neutral warships [see e.g. art. 120 San Remo Manual; see: Merchant Vessels]. Under ihl, the main elements of this definition were first enumerated in Articles 2–5 of the 1907 Hague Convention vii, and then codified under general international law in Article 8(2) of the 1958 Geneva High Seas Convention. The same elements are also reflected in the definition of warship provided by the San Remo Manual, a soft law – but very authoritative – instrument [art. 13(g) San Remo Manual]. There is no doubt that the expression warship includes submarines. Nor is there any doubt that non-naval vessels – such as Coast Guard cutters – may also be categorised as warships where they belong to the armed forces of a State. It is important to note, however, that because the definition of warship is now settled and identical across both the peacetime and armed conflict legal regimes applicable at sea, there are some aspects of the rights and duties of warships that may be significant in one regime, but relatively insignificant in the other. A key example is the concept of sovereign immunity of warships [art. 32 unclos], which is fundamental to interaction with such vessels in non-armed conflict contexts, but is relatively insignificant in terms of operations between the belligerents during armed conflict at sea. In terms of the law of naval warfare, there are a number of challenges that can arise in relation to the definition of warship. One such issue concerns the

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status under ihl of State vessels on non-commercial service, which do not meet the definition of warship. For example, some naval support vessels, such as logistics support ships, or troop transport ships, may not be definable as warships, because they are not commanded by an officer of the armed forces (for example, such a vessel may be commanded by a civilian merchant marine master). However, these vessels are specifically recognised in the law of naval warfare as “auxiliaries”. Auxiliaries are defined, for example, in Article 13(h) of the San Remo Manual as “a vessel, other than a warship, that is owned or operated by or under the exclusive control of the armed forces of a State and used for the time being on government non-commercial service”. Enemy auxiliaries are military objectives and are thus targetable in the same manner as enemy warships [arts. 65–66 San Remo Manual; see: Military Objectives]. A second issue relating to the definition of warship is the status of unmanned vehicles and other unmanned systems at sea. By definition, such systems are not currently considered to be warships, not least because they are not manned by a crew under armed forces discipline, as this concept is traditionally understood. This can entail consequences for the way the object is treated in ihl, for example, as a warship or as a weapon. However, such vessels and systems may be employed in belligerent operations, and are targetable, because they are either auxiliary vessels, or can be simply considered to be subordinate weapons systems deployed from a warship. Robert McLaughlin – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

B.H. Oxman, ‘The Regime of Warships under the United Nations Convention on the Law of the Sea’, 24(4) Va. J. Int’l L. (1984).

Wilful Killing and Murder. The basic protection against arbitrary deprivation of life outside the conduct of hostilities has become a universal standard ­during armed conflict and can be traced back to the original Geneva Convention of 1864 [N. Melzer, Targeted Killing in International Law (2009), p. 144]. In the aftermath of World War ii, the scope of this prohibition was expanded further by the advent of the 1949 GCs. In expressing this protection, all GCs, inter alia, prohibit the “wilful killing” of protected persons in the context of an international armed conflict [art. 50 gci; art. 51 gcii; art. 130 gciii; art. 147 gciv]. The notion of wilful killing stemming from these prohibitions, concerns “death occurring due to any

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

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

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 38–44.

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

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or health” of protected persons, such as “the mutilation of the wounded or their exposure to useless and unnecessary suffering” [1952 icrc Commentary gci, p. 372]. First, to be a grave breach, the act must be a wilful act or omission [Judgment, Kordić and Čerkez, icty, Trial Chamber, para. 245]. To constitute a grave breach, the suffering or injury caused cannot result from negligence, but must have been done intentionally, that is when judged objectively the act was deliberate and not accidental [Judgment, Tolimir, icty, Trial Chamber, para. 716; 2016 icrc Commentary gci, paras. 3003–3004]. Recklessness, however, can constitute wilfulness when the individual accepts the risk with full knowledge of what he/she is doing [Judgment, Blaškić, icty, Trial Chamber, para. 152]. Second, to constitute a grave beach, the act or omission must cause great suffering or serious injury to the body or health of a protected person. The icty looked to these words’ ordinary meaning to assess whether an act quantitatively reached the required level of suffering or injury: “[t]he Oxford English Dictionary defines this word [‘serious’] as ‘not slight or negligible’. Similarly, the term ‘great’ is defined as ‘much above average in size, amount or intensity’” [Judgment, Delalić et al., icty, Trial Chamber, para. 510]. Wilfully causing great suffering “refers to suffering inflicted as a punishment, in revenge or for some other motive, perhaps out of pure cruelty, as apart from suffering which is the result of torture or biological experiments” [1960 icrc Commentary gcii, p. 269]. As it was never specified that suffering only encompassed physical suffering, “the provision can quite legitimately be held to cover moral suffering also” [1960 icrc Commentary gcii, p. 269]. In contrast to suffering, injury to body or health has not systematically been understood to include mental health. While the icty Appeals and Trial Chambers, on several occasions, have found that health could include mental health [e.g. Blaškić, para. 156], the icc Elements of Crimes refer to mental only in relation to suffering, not injury, as the negotiating States considered it “difficult to conceive of mental injury” [K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p. 76]. Wilfully causing great suffering or serious injury to body or health is distinct from the grave breach of torture, primarily because the former does not require that the alleged acts or omissions be committed for a prohibited purpose [see: Torture]. Thus, the former includes acts that may also constitute torture [Blaškić, para. 156]. Wilfully causing great suffering or serious injury is also distinct from the grave breach of inhuman treatment in that inhuman treatment also includes violations upon human dignity [see: Inhuman Treatment]. Examples of acts wilfully causing great suffering or serious injury to body or health, are: repeatedly mistreating a detainee by “tying him to a roof beam

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and beating him, by striking him with a baseball bat, and by pouring gasoline on this trousers, setting them on fire and burning his legs” [Delalić et al., para. 1016]; ordering “persecutions against the Muslim civilians of Bosnia” [Blaškić, pp. 267–268]; and failing “to take the necessary and reasonable measures which would have allowed these crimes to be prevented or the perpetrators thereof to be punished” [Blaškić, p. 269]. Finally, to constitute a grave breach, the act or omission must be directed against a person protected by one of the GCs during an international armed conflict [see: Protected Persons]. Wilfully causing great suffering or serious injury to body or health was included as a grave breach because it was identified as one of the most serious acts that can be committed during international armed conflict. Customary law now indicates that such acts, including violence to life or person (in particular mutilation, cruel treatment, and torture) and seriously endangering a person’s health, also constitute serious violations of ihl in non-international armed conflict [J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), pp. 590, 593; art. 8(2)(c)(i)-(ii), 8(2)(e)(xi) icc Statute]. Laura M. Olson – the views expressed are made in the author’s personal capacity and do not necessarily represent the position or view of The Carter Center Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 76–80, 229–239, 394–405, 482–484.

Wilfully Depriving a Protected Person of the Rights of Fair and Regular Trial. The offence of wilfully depriving a protected person of the rights of fair and regular trial is expressly prohibited as a grave breach in gciii and gciv, as well as in api [art. 130 gciii; art. 147 gciv; art. 85(4)(e) api; see: Grave Breaches]. These provisions apply during an international armed conflict and ­protect both prisoners of war, based on gciii, and civilians, based on gciv [see: Prisoners of War; Civilians]. This offence is also recognised as a grave breach by the icty [art. 2(f) icty Statute], the icc [art. 8(2)(a)(vi) icc Statute], and the eccc [art. 6 eccc Law], as well as the Special Panels for Serious Crimes in East Timor [Section 6(1)(a)(vi) untaet Regulation No. 2000/15], and the ­Supreme Iraqi Criminal Tribunal [art. 13(a)(F) sict Statute]. It is, furthermore, an ­offence under international customary law [Judgment, Duch, eccc, Trial Chamber, paras. 403–405, 458–460]. The actus reus of this offence consists of depriving a prisoner of war or a civilian of the rights of fair and regular trial through the denial of judicial

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guarantees, particularly those defined in gciii, gciv, and api [see: Fair Trial]. These judicial guarantees include the right to be judged by an independent, impartial, and regularly constituted court [art. 84(2) gciii; art. 75(4) api; art. 6(2) apii]; the right to be promptly informed of the charges [art. 104(2) gciii; art. 71(2) gciv; art. 75(4)(a) api; art. 6(2)(a) apii]; the rights and means to conduct a defence, including the right to defend oneself or to be assisted by a lawyer of one’s own choice, to have sufficient time and facilities to prepare the defence and to communicate freely with counsel [arts. 84(2), 96(4), 105 gciii; arts. 72, 123 gciv; art. 75(4)(a) api; art. 6(2)(a) apii; see also: art. 49(4) gci; art. 50(4) gcii]; the principle of individual criminal responsibility and the protection against collective penalty [art. 87 gciii; art. 33 gciv; art. 75(4) (b) api; art. 6(2)(b) apii]; the presumption of innocence [art. 75(4)(d) api; art. 6(2)(d) apii]; the principle of nullum crimen sine lege [art. 99(1) gciii; art. 67 gciv; art. 75(4)(c) api; art. 6(2)(c) apii]; the principle of non bis in idem [art. 86 gciii; art. 117(3) gciv; art. 75(4)(h) api]; the right to be informed of the right to appeal [art. 106 gciii; art. 73 gciv; art. 75(4)(j) api; art. 6(3) apii]; and the right not to be sentenced or executed without a previous judgement pronounced by a regularly constituted court [common art. 3 GCs]. According to the icty, the requisite mens rea for this offence includes both culpable intent and recklessness [Judgment, Blaškić, icty, Trial Chamber, para. 152]. A similar offence may also be committed in an armed conflict not of an international character. As noted above, Common Article 3(1)(d) GCs specifically prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized people [see: Regularly Constituted Courts]. It might be difficult, however, to assess whether courts set up by certain armed groups could be considered as regularly constituted within the meaning of Common Article 3 GCs [see: Armed Groups]. This offence also falls within the jurisdiction of various international criminal tribunals [art. 3 icty Statute; art. 8(2)(c)(iv) icc Statute; art. 4(g) ictr Statute; art. 3(g) scsl Statute; art. 7(2)(g) of the Extraordinary African Chambers Statute]. Matteo Crippa – the views expressed are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia Bibliography

K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), pp. 100–105. J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), pp. 352–371.

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S. Sivakumaran, ‘Courts of Armed Opposition Groups: Fair Trials or Summary Justice?’, 7(3) jicj (2009).

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

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

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­ onflict: The International Response to the Beijing Platform for Action’, 32 C Columbia hrlr (2000)]. However, a modern interpretation of ihl provisions taking ihrl and international criminal law into consideration dispels such criticism, for violence against women is now viewed as a violation of a woman’s physical and mental integrity. Likewise, the criticism that the only rationale for protecting women is their nurturing and caring roles, thereby viewing women in their reproductive function and portraying them as powerless and in need, is countered by a modern interpretation of women’s role, especially in light of the Women, Peace and Security agenda of the unsc [e.g. unsc Resolution 1325 (2000)]. The increasing use and application of other legal regimes in armed conflict has obliged States to integrate this more nuanced approach into their understanding of ihl rules relating to women. That being said, it is not the objective of ihl to tackle the roots of discrimination, address social, economic, and structural inequalities, alter cultural traditions and perceptions, or empower women, but to ensure that certain standards of treatment towards women are being respected. Last but not least, ihl uses the term “sex”, which refers to biological characteristics rather than “gender”, which encompasses social, economic and cultural factors and features in modern legal instruments [art. 7(3) icc Statute; see: Gender Violence]. Noëlle Quénivet – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

A. Barrow, ‘UN Security Council Resolutions 1325 and 1820: Constructing Gender in Armed Conflict and International Humanitarian Law’, 92 irrc 877 (2010). J. Gardam, ‘The Neglected Aspect of Women and Armed Conflict: Progressive Development of the Law’, 52 Netherlands International Law Review (2005). J. Gardam and M. Jarvis, Women, Armed Conflict and International Law (2001).

Workers. The occupying power may compel inhabitants of an occupied territory to perform labour, under certain conditions. These conditions were ­initially laid out in Article 52 of the Hague Regulations of 1899 and 1907 before ­being bolstered by gciv, which established a more comprehensive framework, in response to the unprecedented scale of forced labour during World War ii. The primary concern of Article 51 gciv is the prohibition of forced labour for the military ends of the occupying power. Variously, it prohibits compelling protected persons to serve in armed or auxiliary forces [see: Compelling a Protected Person to Serve in the Forces of the Hostile Power]; pressurising or propagandising with the goal of securing voluntary enlistment; compelling

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protected persons to undertake any work which would oblige them to take part in military operations; or mobilising workers in an organisation of a military or semi-military character. Article 51 gciv establishes, in addition, a series of conditions under which the occupying power may compel civilians in occupied territory to perform labour [see: Occupation]. Labourers must be over 18 years of age and the work must be required either for the needs of the army of occupation, “or for the public utility services, […] feeding, sheltering, clothing, transportation or health of the population of the occupied country”. The remaining obligations concern the nature and circumstances of the work to be undertaken. In this regard, Article 51 gciv requires that: (i) labourers may not be required to employ force to ensure the security of the installations in which they are performing compulsory work; (ii) work is conducted exclusively in the occupied territory; (iii) as far as possible, each labourer is kept in his usual place of employment; (iv) labourers are paid fair wages; (v) work is proportionate to the physical and intellectual capabilities of the labourers; and (vi) legislation in the occupied territory concerning working conditions and safeguards (in particular, as regards wages, hours of work, and compensation for occupational hazards) remain in force. Two Trial Chambers of the icty have held that violations of Article 51 gciv may amount to a war crime, namely in the Naletilić and Martinović and Prlić et al. cases. The Trial Chamber in Naletilić and Martinović also advanced the novel proposition that it is not required to establish the existence of a state of occupation for the application of Article 51 gciv, but that its protections apply from the moment that civilians fall “into the hands of an opposing power, regardless of the stage of the hostilities” [Judgment, Naletilić and Martinović, icty, Trial Chamber, paras. 222, 251]. This innovation seems to be obiter, however, as the Trial Chamber ultimately declined to apply the gciv regime [Naletilić and Martinović, para. 252]. The Trial Chamber in Prlić et al. reiterated this statement, but it can again be considered obiter as the Chamber established that the relevant crimes took place on occupied territory in any case [Jugement, Prlić et al., ICTY, Chambre de Première Instance, Tome 1, para. 153, Tome 3, paras. 578, 580, 583-584]. Finally, Article 52 gciv prohibits measures aimed at creating unemployment or restricting the opportunities offered to workers in occupied territory in order to induce them to work for the occupying power. Given the macroeconomic complexity of the administration of an occupied territory of any significant population, it is undoubtedly the case that only clearly deliberate ­measures to this effect are contemplated by this Article. In that respect, the icrc Commentary lists the establishment of employment monopolies, the

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shutting down of industries, and the creation of an artificial shortage of raw materials as examples of such measures employed during World War ii [1958 icrc Commentary gciv, p. 300]. Maurice Cotter – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

Y. Dinstein, The International Law of Belligerent Occupation (2009), pp. 178–179.

Wounded and Sick. The duty to protect and care for wounded and sick combatants without distinction is a long-standing rule of customary international law, already recognized in the 1863 Lieber Code and codified in the 1864 G ­ eneva Convention [art. 79 1863 Lieber Code; art. 6 1864 Geneva Convention; rule 110 icrc Customary ihl Study]. More detailed provisions are now contained in gci and gcii: whereas the first relates to the wounded and sick in armed forces in the field, the second concerns the wounded, sick and shipwrecked members of armed forces at sea [art. 13 gci; art. 13 gcii; see: Shipwrecked]. Additional provisions can also be found in the two APs of 1977. The expression “wounded” and “sick” indicates a category of protected persons in times of armed conflict [see: Protected Persons]. More specifically, the terms refer to military or civilian persons who are in need of medical care and refrain from any act of hostility [art. 8 api]. Pursuant to Article 10 api “[a]ll the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected”. The principle of protection of the sick and wounded originated in the First International Conference of the Red Cross that was held in Geneva in October 1863. It initially covered only members of the army, as provided for in the 1864 Geneva Convention. It was later extended to members of the navy by the 1899 Hague Convention (iii) [J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2008), p. 326]. Then, in 1907, the protection was further extended to civilian wounded and sick. api extends this protection to all wounded, sick, and shipwrecked persons, whether they are civilians or members of the armed forces [arts. 8–34 api]. According to the relevant provisions under ihl, persons wounded, sick, and shipwrecked shall be respected and protected under all circumstances [arts. 12(1), 35(1) gci; art. 12(1) gcii; common art. 3 GCs; 10(1) api; art. 7(1) apii]. They shall be treated humanely and shall receive, to the fullest possible extent and with the least possible delay, the medical care and attention

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required by their condition [art. 12(2) gci; art. 12(2) gcii; art. 10(2) api; art. 7(2) apii]. Any attempts upon their lives or violence to their persons are prohibited. There shall be no distinction between them on any other grounds [see: Non-Discrimination]. Women shall be treated with all the particular consideration due to their sex [art. 12(4) gci; art. 12(4) gcii; art. 10(2) api; art. 7(2) apii; see: Women]. This protection lasts as long as the wound or disease keeps the person out of combat [see: Hors de Combat] and in need of medical care. Until their recovery or their disembarkation, they will benefit from the provisions of gci, gcii and/or gciii. A combatant who recovers while in the hands of an adverse party becomes a prisoner of war, at which point he comes under the provisions of gciii protecting such persons [see: Prisoners of War]. gci and gcii are dedicated also to the support services (personnel and equipment) needed to come to the aid of the sick and wounded [see: Medical Personnel; Medical Transports; Medical Equipment]. Provided that they refrain from any act of hostility, once wounded, sick or shipwrecked even former combatants become protected persons. They may not be attacked and must be respected and cared for, often by removing them from the combat zone for impartial care. api extends this protection to wounded, sick and shipwrecked civilians refraining from any acts of hostility. At all times, and particularly after an engagement, parties to a conflict must immediately take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment and ensure their adequate care, as well as to search for the dead and prevent their being despoiled [art. 15(1) gci; art. 18(1) gcii; art. 16(2) gciv; see: Casualties, Search for; Dead Persons]. The civilian population must respect the wounded and sick, even if they belong to the adverse party, and shall commit no act of violence against them [art. 18(2) gci; art. 17(1) api]. The same applies in naval warfare to neutral merchant vessels, yachts or other craft which may be called upon, by the parties to the conflict, to take on board and care for the wounded, sick and shipwrecked and also to collect the dead [art. 21(1) gcii; see: Naval Warfare; Dead Persons]. The duty to protect and care for the wounded, sick (and shipwrecked) is an “obligation of means”. Each party to the conflict must use its best efforts to provide them with protection and care, including permitting the ­intervention of humanitarian organizations. No distinction may be made except on medical grounds (if it is beneficial), in particular by treating persons requiring urgent medical attention first, without this being discriminatory treatment ­between those treated first and those treated afterwards (so-called prohibition

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of “­adverse distinction”). This principle is also supported by the requirement of respect for medical ethics included in the 1977 APs [art. 15(3) api; art. 9(2) apii]. Roberta Arnold – the views expressed are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated with Bibliography

J.-M. Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Vol. i (2005), pp. 400–403. J.K. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (2008), pp. 325–337.